Volume 22 — Georgia Appellate Reports

<p>Action for damages; from Bibb superior court—Judge Mathews. August 6, 1917.</p> <p>Paul Hearn sued the Central of Georgia Railway Company for $680, alleging, that this amount represented the value of his live stock killed at stated times by the running of the defendant’s trains thrpugh described property which he alleged he had charge of and was using as a pasture* for his live stock; that the place where the stock was killed was a straight track for more than a mile; that there was nothing to prevent the defendant’s employees in charge of the trains from seeing the cattle on the track, and that due care required them tó cheek the speed of the trains, and, if necessary, to 'stop the trains in order to prevent striking and killing the stock; and that the defendant was negligent in that it operated its trains through the said property at a great rate of speed, to wit, approximately forty piiles an hour, and “made no attempt to cheek the speed of said trains to prevent striking and killing” his stock. By amendment the plaintiff alleged that at the time of the injuries complained of he was a tenant of the defendant, under a rent contract, a copy of which was attached to his petition, and which contained, among other provisions, the' following: “Whereas said tenant desires, with the permission of the company, to occupy a portion of the right of way or land of the company in Bibb county, Georgia, known as ‘Barrel Factory’ property, at Yineville, for pasturage purposes, at monthly rental of $16.66, and whereas the tenant is not desirous of affecting in any, manner the right of the company to the full and undisturbed possession of the premises, nor the interfering in any way with any of the rights of the company relative thereto, and whereas the company has consented to license for the time being the tenant to occupy the premises as aforesaid, now, therefore, in consideration of the premises and license aforesaid, the tenant hereby covenants and agrees with the company, its successors and assigns, as follows: First. That the tenant will save and hold harmless the company, its successors and assigns, from all damage, injury, or liability that may arise from the destruction or injury of any building, improvements, or personal property of airy description, by fire, or from any other cause whatever, whether the same should be attributable to the negligence of the employees of said company or not, where such damage, injury, or liability is caused or increased by reason of the use of the premises hereunder.”</p> <p>A general demurrer to the petition- was sustained, and the plaintiff excepted.</p>

<p>Complaint; from Lowndes superior court—Judge Thomas. August 4, 1917.</p>

<p>Certiorari; from Evans superior court—Judge Sheppard. July 27, 1917.</p>

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

<p>As the alleged defamatory words did not charge the commission of a crime, and were not for any other reason slanderous per se, and no special damage being alleged in the petition, the court did not err in sustaining the demurrer and dismissing the petition.</p>

<p>Certiorari; from Greene superior court—Judge Park. August 1, 1917.</p>

<p>Affidavit of illegality of execution; from city court of Ashburn —Judge Tipton. October 16, 1917.</p>

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

<p>Complaint; from city court of. Swainsboro—Judge Kirkland. September 24, 1917.</p>

<p>Complaint; from Clarke superior court—Judge Cobb. October 12, 1917.</p>

<p>The charge of the court having fully and fairly submitted to the jury the contentions of the parties, and the evidence authorizing if not demanding the verdict, it was not error to refuse a new trial.</p>

<p>Conviction of manslaughter; from Macon superior court—Judge Littlejohn. November 37, 1917.</p>

<p>The special grounds of the motion for a. new trial amount to no more than an amplification of the contention that the verdict was not authorized by the evidence, and, there being some evidence to sustain the verdict, thej court did not err in overruling the motion.</p>

<p>Trover; from fcity 'court of Albany—Judge Clayton Jones. May 3, 1917.</p>

<p>• Motion to set aside judgment, etc.; from Wilkes superior court —Judge Walker. May 8, 1917.</p> <p>■ At the August term, 1916, of Wilkes superior court a verdict and judgment were rendered in favor of th.e defendant in- a proceeding to foreclose a-chattel mortgage, to which an affidavit of illegality had been interposed; and at the next term-of .thé court the plaintiff—the,Habersham Bank, of Clarkesville—filed a motion to set aside the verdict and judgment' and reinstate the case; .alleging, that a few days before the August term an agreement to continue the ease until the November term was made between the attorneys of record in the case, viz., I. H. Sutton for the plaintiff and J. T. Sisk for the defendant; Sisk promising to notify the clerk of the court as to this agreement; that nevertheless the defendant appeared at the August term and had the verdict and judgment entered in his favor; and that neither the plaintiff nor its attorney knew of it until the day when this motion was filed, when the plaintiff appeared in court ready to try-the case. The. defendant answered that although he employed Sisk to draw the affidavit of illegality filed by him, that was the end of Sisk’s connection with the ease; that J. M. Pitner was -to represent him in the trial and did so represent him; that he did not consent to a continuance of the ea'se, and Sisk had no authority to continue it. On the hearing of the motion Sutton, the plaintiff’s attorney, testified to the alleged agreement, and that Sisk later informed him that he (Sisk) “had written to the court, advising of this agreement; but that Judge B. F. Walker, to whom the letter was addressed, did not preside at the August term, his place'being filled by Judge J. B. Park, and the agreement was not brought to the attention of the judge presiding, for the reason that Judge Walker did not receive the letter in time to do so;” that he (plaintiff’s attorney) did not appear at the August term of the court, and that J. T. Sisk “appeared on the docket of said court and upon the counter-affidavit as being the attorney of record of said defendant.” Sisk testified to the same facts, and that when he prepared the counter-affidavit for the defendant he told the defendant to “carry the papers to Washington, Georgia, and consult a lawyer there so that the case might be properly docketed and notice given when the trial would be had.” The defendant testified, that he paid Sisk for preparing the counter-affidavit and Sisk told him to carry the paper to Washington, file it with the sheriff, and “employ him a lawyer to look after the matter;” that Sisk “was not to represent him further, and had no connection with the matter except to prepare the counter-affidavit, for which he was paid, and it was .understood that he was to employ counsel in Washington to defend the matter, which he did; and, having no notice or knowledge that . . Sisk was undertaking to further represent him in the matter, and never having employed him so to do, the attorney whom he employed, upon the call of the case, took a verdict and judgment in favor of defendant.” After hearing this testimony Judge Walker passed an order setting aside the verdict and judgment and reinstating the c^se; to which the defendant excepted.</p>

<p>Certiorari; from Muscogee superior court—Judge Howard. June 20, 1917.</p>

<p>Complaint; from city court of Miller comity—Judge Geer. June 15, 1917.</p>

<p>Writ of error; from Richmond. Motion to dismiss.</p>

<p>Appeal; from Murray' superior court—Judge Tarver. September 8, 1917.</p>

<p>Action for damages; from city court of Jefferson—Judge Mahaffey. September 15, 1917.</p>

<p>Action lor damages; from city court ol LaGrange—Judge Harwell. September 38, 1917.</p>

<p>Action upon bond; from city court of LaGrange—-Judge Harwell. September 20, 1917.</p>

<p>Action for damages; from city court of Sandersville—Judge Jordan. October 30, 1917.</p>

<p>Where an insurance policy covers “bodily injuries effected through external, violent, and accidental means,” but stipulates that it does not cover injuries “intentionally inflicted upon the insured by any other person,” and where the petition -in a suit on the policy alleges that the insured* was killed by another person, but states facts in connection therewith which show an accidental death within the meaning of the policy, ánd where upon the trial (the defendant in its answer having admitted the payment of the premiums due upon the policy, and that the' plaintiff had given the required notice of the death of the insured) the plaintiff proves that the death of the insured resulted from an external and violent wound, but further proves merely that the wound was inflicted by a third person, no presumption arises that the wounding occurred under the circumstances stated in the petition; and in order to make a prima facie case warranting a recovery, the proof must show that it did so occur.</p>

<p>Complaint; from city court of Atlanta—Judge Reid. April 16, 1917.</p>

<p>Action for damages; from Cherokee superior court—Judge J. B. Jones presiding. June 9, 1917.</p> <p>That part of the brief of counsel for the plaintiff in error to which the decision refers is as follows: “Counsel insists the various excerpts excepted to in the amended motion were prejudicial to plaintiff in error; and also insists the evidence of Miss Nina Axley should not have gone to the jury, as she did not qualify as an expert;”</p>

<p>The fact that a defendant whose case had been set for trial on a certain day was not then present in court in person or by counsel, because the case had been incorrectly stated in a newspaper in which the court calendar was printed, is not a sufficient reason for setting aside the judgment, when it does not 'appear that the plaintiff was in any way . responsible for the publication of the incorrect statement.</p>

<p>Action for‘deceit; from Madison superior court—Judge W. L. Hodges. September 17, 1917.</p>

<p>Certiorari; from Cherokee superior court—Judge Morris. Oc-. tober 13, 1917.</p> <p>The Bank of Cumming sued Mason in a justice’s court on a promissory note for $40 and interest, made by him, payable to O. L. & M. G. Lummus or bearer, and indorsed by the payees. The defendant filed a plea that he was not indebted to the plaintiff as alleged, and that the note sued on had been paid by him in full, and that he did not owe the plaintiff or any other person anything on the note. The note was introduced in evidence by the plaintiff, and the cashier of the bank testified that the bank took the note before it was due, as collateral security for a debt which 0. L. & M. G. Lummus owed it, and that the note for which this $40 note was put up as collateral had not been paid in full to the bank, and that neither Mr. Mason nor any one for him had paid this $40 note to the bank, and that it.is the property of the Bank of Cumming. The defendant testified that he paid the note sued on in full to M. G. Lummus on January 24, 1913, before the note matured; and he introduced in evidence, over objection by counsel for the plaintiff, a receipt from Lummus, dated January 24, 1913, for $40, “in full of notes and accounts.” He further testified that at the time he paid it, Lummus told him that he did not have the note with him, but would send it to him; that he did not know that the bank had title to the note, and had never heard anything about the bank having it until “some time ago,” when the bank called upon him for payment. The cashier of the bank further testified that the $40 for which Mason had a receipt was not paid to the bank by Mason or Lummus.</p> <p>The jury returned a verdict for the defendant. The plaintiff carried the case to the superior c.ourt by certiorari, alleging that the verdict was contrary to law and the evidence, and that the court erred in admitting in evidence the receipt, it not being a receipt of the plaintiff, and the money not being paid to the plaintiff. The certiorari was overruled, and the plaintiff excepted.</p>

<p>Certiorari; from Washington superior court—Judge Hardeman. October 3, 1917.</p>

<p>1. Where property levied upon and seized by a sheriff is released, on a forthcoming bond, but no claim to the property is filed, the execution of the bond will .be considered as voluntary, and the bond is' a valid obligation.</p> <p>2. Where a claimant, under a forthcoming bond, secures possession of the property levied upon by the sheriff, but files no claim, and thereafter disposes of a portion of the property prior to the time of the sale, he has breached the bond,, although there has been no adjudication that the property is subject to the execution; and the sheriff, for the use of the plaintiff in fi. fa., may maintain a suit upon the bond.</p>

<p>1, 2. The rulings of the trial judge on the admission of testimony, as complained of in the motion for new trial, are not erroneous.</p> <p>3. The verdict was authorized by the evidence, and the court did not err in overruling the motion for a new trial.</p>

<p>Mortgage foreclosure; from city court of Swainsboro—Judge , Kirkland. September 24, 1917.</p>

<p>Action for damages; from Bichmond superior court—Judge H. C. Hammond. November 10, 1917.</p> <p>The petition alleged, in substance, that certain boxes of toys shipped from Chicago in two separate shipments to the plaintiff at Augusta, Georgia, and of which, he was the owner, were received by the defendant as the last connecting carrier, and were held in the defendant’s warehouse at Augusta for a long period without notice to him, although it was the custom at Augusta for railroad companies receiving freight to notify consignees immediately after its arrival; that after the arrival of this freight he was told repeatedly, in reply to inquiries, at the defendant’s freight office and depot, that it had not arrived; that when finally notified of its arrival he complained to the defendant of the long delay in giving him notice, and that the goods were then valueless to him; and the defendant notified him that he could get the goods only by paying certain storage charges in addition to the freight; and after this notificatioii as to the goods in the first shipment, they were held by the defendant for several months and were finally sent to a distant countyj without notice to the plaintiff, and sold by the defendant for freight and storage charges. Paragraph 8 of the petition was as follows: “Petitioner alleges that he had no notice of the intended-sale' of said goods, nor was there any advertisement of the intended sale thereof in Richmond county. Petitioner alleges that the sale of said goods was illegal; that if. defendant had any right at all to sell said goods it should have been done in Richmond county, where stored and where petitioner resides.” As to the second shipment it was alleged, that the plaintiff agreed to pay the freight if the storage charges were remitted, that the defendant refused to remit these charges, and the plaintiff then refused to take the goods. Paragraph 10 was as follows: “Petitioner does not know what has become of said last shipment of goods, but alleges that both shipments*of goods have been converted by the defendant and taken possession of unlawfully, on account of the reasons aforesaid, and especially that the storage charges were not correct and unreasonable, the same having been accumulated through the negligence of defendant.” The petition concludes as follows: “By reason of the gross negligence-of the defendant as aforesaid, petitioner has been damaged, without fault on his part, in the sum of $450;” wherefore he prays that process may issue, etc.</p> <p>The allegations as to the first shipment were amended by adding that the plaintiff refused to accept the goods and pay the freight and • storage thereon, as the goods were then valueless to him. The allegations as to the second shipment were amended by adding that the plaintiff refused to accept the goods because they were then of no value to him, and refused to pay the storage charges because they were illegal; that the freight and storage charges amounted to more than the goods were worth at that time. The plaintiff further amended by striking paragraphs 8 and 10, quoted above, and by adding: “This action is for damages for unreasonable delay in delivering the goods aforesaid.” The court allowed the amendments over the objection of the defendant that the plaintiff thereby undertook to change an action for conversion into an action for unreasonable delay, and thereby introduced a new cause of action. A demurrer to the petition as amended was overruled, and the defendant excepted, assigning error’on each of the rulings stated.</p>

<p>Accusation of unlawful possession of liquor j from city. court of Savannah—Judge Freeman. • September 29, 1917.</p>

<p>Certiorari; from Morgan superior court—Judge Park. -November 2, 1917'</p>

<p>Certiorari; from Fulton superior court—Judge Pendleton. November 23, 1917.</p>

<p>1. A motion to set aside a verdict and judgment, for a misunderstanding between the movant and his counsel, in consequence of which no defense was interposed against the suit, was not sustainable.</p> <p>2. An allegation in such motion, that the movant (an administrator) was ready for trial, and ready, “as he believes and avers,” to show that the account sued on was not just and the movant’s intestate' did not owe the whole or any part of it, was not sufficient to indicate a meritorious defense and the nature thereof, but amounted merely to a conclusion of pleading.</p> <p>3. It was error to overrule the demurrer to the'motion.</p>

<p>Action for damages; from city court of Yáldosta—Judge Cranford. 'May 18, 1917.</p>

<p>Action for damages; from Marion superior court—Judge Howard. April 25, 1917.</p>

<p>Action on insurance policies; from city court of Floyd county— Judge Nunn ally. May 21, 1917.</p> <p>The action was on two life-insurance policies in which the plaintiff was named as beneficiary. Liability was denied on the ground that the policies had lapsed because of non-payment of premiums. The following facts appear from admissions in the pleadings and the agreed statement of facts: The policies were dated November 5, 1906, and were for $5,000 each, and provided for the payment, of premiums in advance, either annually, semi-annually, or quarterly, at the following rates: annual premium $191.70; semiannual $99.70; quarterly $50.80. Eight annual premiums were paid in advance, beginning on the date of .the policy and including payment for the year ending November 5, 1914. The insured borrowed from the insurance company $910 on each policy, or a total of $1,820, for which he executed, with the assent of the beneficiary, two loan agreements dated November 29, 1913, and paid interest in advance thereon for the remainder of the policy year ending November 5, 1914. He died February 2,- 1915. There was no payment except as stated above, unless, as was contended by the plaintiff, there was automatic payment by the application of loan value under the provisions of the policies. The insurance company contended that -at the time of the death of the insured the policies had no loan value to be thus applied, that he had borrowed the entire loan value.</p> <p>The policies were identical and contained clauses as follows: “Grace in payment of'premiums. An extension of thirty days will be allowed in the payment of any premium,' except the first, and the company agrees to accept any premium, without interest charge, if tendered within thirty days of the time of default, during which thirty days the policy will remain in force.”</p> <p>“Loans. After this policy has been in force two years, the company will loan thereon, as sole security, the amount stated in the table on the third page hereof, at not more than five per cent, per-annum, payable in advance. The loan shall, be made in accordance with the company’s loan agreement; the amount of loan. available at any time shall include any previous loans then unpaid, and premiums under this policy shall be paid in full up to the end of the policy year succeeding the date when the loan is obtained. The company agrees that the loan may be renewed annually, if interest be paid for one year in advance.”</p> <p>“Automatic” non-forfeiture clause. “If the insured shall fail to pay any premium when due, and if there is no indebtedness to the company, the insurance will automatically continue from such due date as term insurance, if premiums have been paid for three months, for 30 days; if for six months, for 40 days; if for nine months, for SO days; and for the period specified in the table on the third page hereof, if premiums have been paid for one year.</p> <p>“If premiums have been paid for two or more years, the company, upon failure of the insured to pay any premium, will charge the premiums as they fall due as loans against the policy until the loan value is consumed, and this policy shall thereby continue in full force. At any time while the policy is thus sustained, the payment of premiums may be resumed, without medical re-examination, and the accumulated debits may be paid or stand as a loan against the policy.”</p> <p>Six-months non-forfeiture clause. “If the insured makes written application within six months after default in payment of premiums, the company will extend this policy as a term policy for its full amount; or, upon surrender of this policy, will issue a participating paid-up policy, or will pay the cash surrender value, as stated in the table on the third page hereof under the respective heads.”</p> <p>The table referred to in- the foregoing provisions is under the heading, “Table of Cash Loans- and Guaranteed Surrender Values,” and is based on each $1,000 of insurance. In this table “and under the following heads appear figures as follows: “End of policy year 7th: cash loan $182; cash value $154; participating paid-up insurance $350; extended insurance 12 years, 8 months. End of policy year 8th: cash loan $212; cash value $182; participating paid-up insurance $400; extended insurance 14 years, 2 months.” '</p> <p>The loan agreements executed by the insured provided as follows: “Should the interest not be paid when due, such interest, together with interest at like rate on the increase in the amount of indebtedness, shall be added t-o the principal of the loan. Should the amount of the loan with interest additions thereto ever equal .or exceed the entire loan value of said policy, the policy shall thereupon become null'and void. . . 'This agreement will be considered cancelled without further notice should said policy be lapsed for non-payment of premium.”</p> <p>The insurance company contended that the amount opposite the eighth year under the tables would hot, under the provisions as to loans, become available as a loan value until premiums should be “paid in full up to the end of the policy year succeeding the date when the loan [was] obtained.” The plaintiff contended that the loan value automatically paid the due interest charge on November 5, 1914 (the end of the eighth year), and more than a quarter’s premium, and therefore continued the policies in force up to the death of the insured;-and that if this was not the case, the six-months non-forfeiture -clause continued the policies in force notwithstanding failure to pay premium's.'</p> <p>Application to the Supreme Court for certiorari to review the decision of the Court of Appeals in this case was denied.</p>

<p>Certiorari; from Fulton superior court—Judge Pendleton. June 6,1917. '</p>

<p>Mortgage foreclosure; from Worth superior court—Judge Eve. June 11, 1917.</p>

<p>Certiorari; from Fulton superior court—Judge Ellis. July 3, 1917.</p>

<p>Certiorari; from Biyan superior court—Judge Sheppard. July 9, 1917.</p>

<p>There being no evidence that any member of the defendant company or any of its agents or servants placed in the street the paper that frightened the plaintiff’s horses, he failed to prove his case as laid; and it was not error to grant a nonsuit.</p>

<p>Certiorari; from Fulton superior court—Judge Pendleton. June 7, 1917.'</p>

<p>Certiorari; from Berrien superior court—Judge Thomas. August 11, 1917.</p>

<p>Certiorari; from Richmond superior court—Judge H. C. Hammond. September 8, 1917.</p>

<p>Action upon bond; from Toombs superior court—Judge Hardeman. September 25, 1917.</p>

<p>Money rule; from Fayette superior court—Judge Searcy, September 17, 1917.</p>

Complaint; from Newton superior court—Judge Smith. August 11, 1917. The First National Bank of Covington brought suit against Young and Weldon on a promissory note dated January 12, 1915, payable to C. B. Bogers or order, for the principal sum of $1091.42, and bearing interest after maturity at eight per cent, per annum, and also providing for ten per cent, attorney’s fees in case of suit thereon.

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

<p>Complaint; from Murray superior court—Judge Tarver. November 3, 1917.</p>

<p>Certiorari; from Fulton' superior court—Judge Bell. October 3, 1917.</p>

<p>Forfeiture of recognizance; from Pike superior court—Judge Searcy. October 12, 1917.</p>

<p>Action, for damages; from city court of Blacksbear—Judge Mitchell. October 20, 19.17.</p>

<p>Attachment and garnishment; from Tattnall superior court— Judge Sheppard. September 29, 1917.</p>

<p>Action for breacli of contract; from Colquitt superior court— Judge Thomas. November 24, 1917.</p>

<p>Complaint; from city court of LaG-range—Judge Moon. September term, 1917.</p>

<p>Lien, foreclosure; from city court of Swainsboro—Judge Kirkland. April 24, 1917.</p>

<p>Complaint; from Wilcox superior court—Judge Crum. May-19, 1917.</p>

<p>1. Payment made to a third person by the request or with the consent of the creditor is a good defense to an action for debt. 30 Ene. Law & Proe. 1183; Burst v. Whitly, 47 Ga. 366. The plea of payment in the instant case is admitted, in the brief for the plaintiffs, to be sufficient in law, and there was ample evidence to support it.</p> <p>2., The contention of the plaintiffs that the defendant can not claim credit for money paid out by him for the, suppression of a criminal prosecution ' is without .merit, in view of the direct and positive testimony that they directed him to pay the money into court to satisfy a fine imposed against their brother, and that this instruction was in fact ' obeyed; and the jury was therefore authorized so to find.</p> <p>3. The judge of the superior court did not err in overruling the certiorari.</p>

<p>1. While an illiterate person is not bound by the terms of an instrument which he ignorantly signed under an erroneous belief as to its character and contents, .where he was induced to do so by reason of the misrepresentations of the opposite party, whose good faith he had no reasonable ground to suspect (Grimsley v. ■ Singletary, 133 Ga. 56, 65 S. E. 92, 134 Am. St. R. 196), still, where such a person, who is able to contract, enters into an accounting with another, and voluntarily signs a promissory note in settlement, the true purport and terms of which he fully understands, he, like other persons, is ordinarily bound thereby, and will not, in the absence of fraud or mistake, be heard to set up, as a defense to an action on the note, the mere fact that, under the accounting wherein it was given in settlement, he failed to receive certain credits to, which he was entitled, and that certain elements of indebtedness included therein were unjust.</p> <p>2. In our rules of pleading there is nothing that would prevent the plaintiff in a suit on a note from amending an erroneous statement in the petition by increasing the amount of the claim made on the note, where the amount of the demand as amended is still within the amount called for by tlie note sued on,, as shown by the attached copy thereof.</p> <p>3. A note given for a stated sum as principal, to bear interest after maturity, and providing for the payment of ten per cent, as attorney’s fees “on amount of said debt,” authorizes a recovery of such fees on the amount of both tho principal and the interest of the obligation. Everett v. Ingram, 142 Ga. 145 (S2 S. E. 562).</p>

<p>Complaint; from city court of Dublin—Judge Flynt. June 14, 1917. . ' .</p>

Certiorari; from Floyd superior court—Judge Wright. May 29, 1917. Certiorari to review a judgment of a justice’s court was sued out by Horton-Hughes Furniture Company, a partnership, of which W. D. Horton was a member.

<p>Action for breach of contract; from city court of Waycross— Judge McDonald. June 16, 1917.</p>

<p>Complaint; irom city court of Nashville—Judge Christian. June 16, 1917.</p>

<p>Certiorari; from Gordon superior court—Judge Tarver. August 27, 1917.</p>

<p>Appeal; from Effingham superior court—Judge Sheppard. July 9, 1917.</p>

<p>Complaint; from city court of Swainsboro—Judge Kirkland. August 29, 1917.</p>

<p>Complaint; from Murray superior court—Judge Tarver. September 8, 1917.</p>

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

<p>Distraint; from city court of Carrollton—Judge Beall. September 12, 1917.</p>

<p>Complaint; from Whitfield superior court—Judge Tarver. July 28, 1917.</p>

<p>Trover; from. Liberty superior court—Judge Sheppard. November 17, 1917.</p>

<p>Indictment for assault with intent to murder; from Jackson superior court—Judge Cobb. November 17, 1917.</p>

<p>Action for damages; from Warren superior court—Judge Walker. June 6, 1917.</p>

<p>Indictment for murder; conviction of manslaughter; from Charlton superior 'court—Judge Sunnnerall. November 3, 1917.</p>

<p>Accusation of unlawful possession of liquor; from city court of Savannah—Judge Rourke. November 17, 1917.</p>

<p>Accusation of misdemeanor; from city court of Savannah— Judge Rourke. November 17, 1917.</p>

<p>The indictment was not subject to be abated on the ground that the solicitor-general was disqualified by interest in the ease, it appearing that, after signing as solicitor-general, he signed the indictment as prosecutor.</p>

<p>Certiorari; from Fulton, superior court—Judge Pendleton. November 1, 1917.</p> <p>O. T. Foster was charged, in the criminal court, of Atlanta, with possessing spirituous and intoxicating liquors. A plea of guilty was entered, and the judge sentenced him to pay a fine of $1,000, or in lieu thereof to serve twelve months on the public works of Fulton county. After senténce was passed, the defendant made a motion to withdraw “what was taken as a plea of guilty,” and to vacate and set aside the judgment imposing the sentence, on the ground that he did not intend to plead guilty, and that when he came before the court and admitted having liquor in his car, he thought he was there to consummate a settlement of the cases pending against him in that court, by which he thought he was to be allowed to pay $100 in settlement of both cases; and on the further ground that he was not legally arraignéd, and that he was led to believe that he would be dealt with leniently, and this was the cause of his admitting that the liquor was in his car. The judge of the criminal court denied the motion, and the defendant carried the case by certiorari to the superior court. The trial judge’s answer to the certiorari showed that the defendant stated, on September 1$, 1917, that he wished to plead guilty; that- the court had him to wait until the next day so that the court could look into the case, and on the following day he voluntarily pleaded guilty after being properly arraigned and after being fully informed of the charge against him; that the court had not promised him or any one else to be lenient if the plea of guilty was entered; that the court knew nothing whatever of any agreement as to settling the cases against him or being lenient, as set out in the petition for certiorari; and that the sentence was imposed after the court'investigated the case.</p> <p>■The judge of the superior court overruled and dismissed the certiorari, and the defendant excepted.</p>

<p>Indictment for manufacturing intoxicating liquor; from Camden superior court—Judge Highsmith. December 8, 1917.</p>

<p>Indictment for seduction; from Fulton' superior court—Judge 1-Iill.</p>

<p>Indictment for larceny of cow; from Coffee superior court-judge Summerall. . December 28, 1917.</p>

<p>Indictment for larceny; from Dooly superior court—Judge Crum. December 22, 1917.</p> <p>Tbe defendant was indicted for larceny of seed-cotton, alleged to have been stolen from the buggy-house of Haslam, the prosecutor. The State’s evidence showed that the cotton was in sheets in the prosecutor’s buggy-house, and above the cotton was a loft on which were some oats, and from which oat chaff had fallen through cracks on the cotton. The evidence against the defendant was entirely circumstantial. In’ his cotton-house, on the morning after the cotton had been stolen, was found a small quantity of cotton similar to the stolen cotton, with some oat chaff in it. The cotton was said to have been of a-kind known as the Wanamaker short-staple cotton. The defendant showed, however, that some of his tenants delivered him some of this Wanamaker or'big-boll cotton, and that he also raised this particular kind of cotton. The State’s evidence showed that tracks went from the buggy-house across the road or street towards the defendant’s residence, but, according to the State’s testimony; they were not tracks of the defendant. They were smaller than those made by the defendant. There was evidence that on the morning after the larceny the defendant was plowing up the field which lay between the road and his cotton-house, and that he sold a bale of cotton on that day. The evidence further showed that tracks of a wagon led to the country, in the road at the place where the tracks leading from the buggy-house were found. A witness for the defendant testified that the defendant passed her house early in the night, going to a meeting (which he claimed to have attended that night), and that she heard him return from the meeting later in the night, that a short while* after he passed her house a wagon loaded with seed-cotton passed the house driven by a negro and a white man. The defendant denied that he stole the cotton, and offered evidence in explanation of these circumstances against him. He also offered evidence that on the night of the larceny he was at a meeting some distance from his home.</p> <p>The court, in charging the jury, treated the case as a felony. The defendant was convicted with a recommendation that he be punished as for a misdemeanor, and the sentence of the court gave him a misdemeanor punishment. He made a motion for a new trial, which the court overruled, and he excepted.</p>

<p>Indictment for manufacturing intoxicating liquor; from Morgan superior court—Judge Park. December 31, 1917.</p>

<p>Indictment for misdemeanor; from Crawford superior court-judge Mathews. December 8, 1917.</p>

<p>Indictment for unlawful sale of liquor; from Douglas superior court—Judge Bartlett. December 19, 1917.</p> <p>Arthur Choran was charged with selling liquor. H. L. Dorris, a witness for the State, testified: “I went and hunted up Arthur Choran and told him that I wanted to get a quart' of whisky. He had a quart of corn whisky in his hip-pocket pants, in a bottle, and .he let me have the whisky. I told him it was for Lon Beggs and another party. I bought the whisky and paid him the money in Douglas county that Lon gave me,—one dollar. This was in the month of January or February, 1917.” The defendant in his statement at the trial said: “I have not dealt with any whisky, so far as being engaged in its traffic, for over two and a half years. I was tried in Paulding superior court two years ago, and served a while in jail, and paid out the fine. About the same time there was a bill of indictment found against me by the grand jury of this county. I came here, and was tried. This case in Douglas county was concerning the same liquor that I was indicted for in Paulding county. I lived a few miles over Douglas-county line. I was tried the last time before Tarver. He fined me $50 and gave me a short sentence in the chain-gang for three months. I was not guilty of that offense, and I made a motion for new trial, which is now pending, and I expect to have the verdict set aside. I quit the liquor business two and a half years ago,” etc. The defendant proved, on cross-examination of the witness Dorris, that the witness had pleaded guilty to furnishing liquor to a minor; and there was testimony of other witnesses to the effect that they tried to get whisky from the defendant that, day and that he did not have any, but that the witness Dorris did have a pint and a quart-bottle of whisky under the cushion seat of his buggy, and that he took it out and went off with it. The jury found the defendant guilty, and the sentence was that he pay a fine of $500, or in lieu thereof be confined in the chain-gang for twelve months. He moved for a new trial on the usual general grounds, and on two additional grounds, one of which was disapproved by the court, and the other of which was based on newly discovered evidence of two witnesses to the effect that the State’s witness, Dorris, had liquor and sold liquor on the day on which he claimed to have bought the liquor from the defendant. The motion was refused and the defendant excepted.</p>

<p>Indictment for burglary; from Houston "superior court—Judge Mathews. December 15, 1917.</p>

<p>Accusation of misdemeanor; from city court of Savannah— Judge Eourke. December 22, 1917.</p>

<p>Accusation of misdemeanor; from city court of Savannah— Judge Rourke. December 22, 1917.</p>

<p>Accusation of misdemeanor; from city court of Monroe—Judge -Stone. January 4, 1918.</p> <p>T[ie accusation charged Bay Stephens with “the offense of misdemeanor, decoying, persuading, and enticing” a farm laborer, for that the defendant, on the 3d day of September, 1917, in Walton county, Georgia, “by requesting'and urging said Judge Broughton to go home with him and work out a balance which he claimed said Judge Broughton was due him, and by then and there including [inducing ?]. said Judge Broughton to get into the car in 'the possession of and being run by said Bay Stephens, did entice and persuade and decoy and did thereby attempt to entice and persuade and decoy said Judge Broughton to leave the service of J. H. Sorrells, his employer, the said Judge Broughton, then and there being the servant and farm laborer of J. H. Sorrells, employed as such under verbal contract beginning September 3d, 1917, and to continue of favor [?] and effect until said Judge Broughton should have paid in work, and labor the equivalent of $56.05 at the rate of $15.00 per month, the said Judge Broughton being then and there actually in the service of said J. H. Sorrells, and the said Bay Stephens then and there knew that said Judge Broughton was so employed; contrary to the laws of said State,” etc. The defendant demurred on the grounds that the accusation fails to charge any offense, and “fails to state any word or act of incitement or inducement on the part of the defendant whereby he influenced the will of the alleged servant so that the latter became dissatisfied with his alleged employment and was allured ¿way.”</p>

<p>Indictment for misdemeanor; from city court of Polk county— Judge John K. Davis. January 24, 1918.</p> <p>The indictment charged the defendant with having used to and of a certain female and in her presence obscene, vulgar, and profane language tending to cause a breach of the peace, to wit: “No, I am not the one; any one who says I am is a God damn liar.” According to testimony for the State, Mrs. Pay, the female named in the indictment, said to the defendant, in regard to a fence, “You tore down the fence, you are on us;” and he said, “I am not, the one that says I am tells a God damned lie.” According to other testimony for the State hé said he did.not think the fence was over the line, and said, “The one that says it tells a God damned lie.” The defendant denied that he used the language1 charged; and, according to his statement and testimony of his .witness, Mrs. Ray’s .son, who accompanied her at the time referred to by the State’s witnesses, said to him, “I have come here to see you [or “you all”] about stealing my land,” or “that land.”</p>

<p>The evidence, while circumstantial, was sufficient to sustain the verdict, • and the court did not err in overruling the motion for a new trial.</p>

<p>1. Under the undisputed facts the solicitor-general was not disqualified, by reason of interest, to represent the State in obtaining the indictment, and the court did not err in directing a verdict against the plea in 'abatement.</p> <p>2. The offense charged was receiving stolen goods. The evidence against the defendant being circumstantial and not being sufficient to authorize a finding that he knew that the goods were stolen, the court erred ' in overruling the motion for a new trial.</p>

<p>Accusation of larceny; from city court of Camilla—Judge Bush. July 3, 1917.</p> <p>Robert Jackson was convicted under an accusation which charged him with having stolen from E. L.' Whitworth about 900 pounds of short cottonseed. ;E. L. Whitworth testified, that on being informed that some one had gone into his cotton-house he went to it and saw where a wagon had been driven up there and then driven off again, and that about five or six hundred pounds of seed were missing. “I then got in my car and traced this wagon track, and I followed it to Mr. Walter Acree’s place in the outskirts of Camilla. I left the track thpre. This track came on to town, but it came in a roundabout way. It ■went-several miles out of the way to, get to Camilla, and took all of the backwoods roads possible. It did not go directly by houses, but would avoid them as far as possible. The track made by this wagon was a narrow one,—that is, it was a standard-gauge wagon; the tires were smaller than those of a regular size two-horse wagon and larger than those of a one-horse wagon. . When I got to Walter Aeree’s place T left the track and drove directly to the oil-mill and questioned Mr. Nix. I then went to Robert Jackson’s house and drove up and asked his wife where he was, and she told me that he was in the field. I then went on over to where he was and I asked him if he., had carried some seed to town that morning, and he told me he had, and I said, ‘Where did you get them from?’ He said, ‘Out of my brother’s corn-crib;’ and I s.aid, Hiet’s go to your brother’s corn-crib ánd see about it,’ and we went up there and looked. There was no seed anywhere around his brother’s corn-crib, and I asked him to show me a seed, and said I would give him a dime a seed.- ,He was never successful in'pointing out to me a single seed; no seed were in the house. It had corn in it, but no seed in it or on the ground. When I got to Bobert’s house I found that he had a narrow-tired wag;on, the same as the one that made the track by my cotton-house. There are other people in that locality who own the same kind of wagon; in fact they are quite common.”</p> <p>S. A. Nix testified: “On the day that Mr. E. L. Whitworth came to the oil-mill inquiring for some.seed I bought a small load of cottonseed from Eobert Jackson. There were five or six hundred pounds in the load. Mr. Whitworth came asking about the seed about 8 o’clock a. m., and I had bought these seed about one hour before that. I don’t remember whether I had bought other seed from other parties that day or not. At that time there were several other cottonseed buyers buying seed at Camilla.” There was no additional evidence. -</p>

<p>Indictment for manufacturing intoxicating liquor; from Pike superior court—Judge Searcy. January 16, 1918.</p>

<p>Accusation of sale of intoxicating liquór; from city court of Nashville—Judge Christian. January 14, 1918.</p>

<p>Accusation of misdeameanor; 'from city court of Savannah—-. Judge Rourke. December 22, 1917.</p>

<p>Accusation of misdemeanor; from city court of Madison—Judge Anderson. February 8, 1918.;</p>

<p>Accusation of misdemeanor; from city court of Polk county— Judge John K. Davis. January 24, 1918.</p>

<p>Conviction of manslaughter; from Laurens, superior court— Judge Kent. December 8, 1917.</p>

<p>Under the facts of this case the judge did not err in refusing the change of venue.</p>

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

<p>Certiorari; from Gwinnett superior court—Judge Cobb. July 5, 1917. ■</p>

<p>1. The statutory provision to the effect that when a debtor makes a payment to a creditor holding' several demands against him, and fails to direct how it shall be applied, the creditor may at his election appropriate it to any of them, relates to voluntary payments' only.. Where funds are distributed in judicial proceedings, “the law will direct the application in such manner as is reasonable and equitable, both as to parties and' third persons.” Civil Codo (1910), § 4816.</p> <p>2. The court did not err in holding that a dividend paid to the plaintiff in fi. fa. on several demands against the Irish-American Bank, including , the execution against the bank as principal and, Armstrong as’ surety, should be applied ratably to all of these demands (and not exclusively upon the other and unsecured demands held by the creditor, at the creditor’s sole option or selection), notwithstanding no election had been made by the principal debtor, and although a surety would not ordinarily be empowered to direct the application of a voluntary payment made to such creditor by his principal or another. N</p>

<p>1. A plea of payment which fails to allege with reasonable certainty when, • how, and to whom the payment was made, and which fails to disclose - any valid reason why such lack of certainty can not be met, is sub- . ject to be stricken upon special demurrer duly filed pointing out such defects (Wortham v. Sinclair, 98 Qa. 173, 25 S. E. 414; Kahrs v. Kahrs, 115 Ga. 288, 41 S. E. 649; Atlantic Railroad Co. v. Hart Lumber Go., 2 Qa. App. 88, 58 S. E. 316; Groves v. Sexton, 5 Qa. App. 160, 62 S. E. 731; Prince v. Cochran, 10 Qa. App. 495, 73 8. E. 693) ; but, no such objection being duly made in this case, the verdict for the defendant can not be set aside as being contrary- to evidence, his testimony showing in distinct terms that the levied fi. fat was fully paid off, and such payment accepted by the plaintiff. While evidence of the manner of payment, identifying the specific checks claimed to have thus been turned over in settlement, would add probative value to the proof relied on to establish the plea, the act of payment is' the essential fact to be shown. Fletcher V. Young, 10 Ga. App, 183 (3) (73 S. E. 38). “This court, by the constitutional amendment creating it, is limited in jurisdiction to the correction of errors of law alone, and therefore ihas no power to grant a new trial on the ground that the verdict is strongly contrary to the weight of •the evidence, if there is any evidence at all to support it.” Edge v. Thomas, 9 Ga. App. 559 (71 S. E. 875). The grounds of the original motion for a new trial, and the fourth ground of the amendment to the motion, therefore, do not afford ground for a reversal.</p> <p>2. The objection made to a consideration of the first and second grounds of the amendment to the motion for a new trial is meritorious, since a ground complaining of the admission of documentary evidence will not be considered, unless the evidence objected to is sej; forth, either literally or in substance, in the motion itself, or attached thereto as an exhibit. Fletcher v. Oollins, 111 Ga. 253 (2) (36 S. E. 646); Bulloch v. Cordele Sash Ac. Go., 114 Ga. 627 (3) (40 S. E. 734); Maxwell v. Bucher, 127 Ga. Ill; Cordele Sash, Ac.-Go. V. Wilson Lumber Go., 129 Ga. 290 (58 S. E. 860) ; Roberts v. Devane, 129 Ga. 604 (2) (59 S. E. 289); Goivart v. Aycoch, 139 Ga. 432.(77 S. E. 382); Louisville A Nashville Railroad Go. v. Hughes, 143 Ga. 206 (8) (84 S. E. 451); Sasser V. Pierce, 9 Ga. App. 27 (2) (70 S. E. 197); Perry v. Independent Daughters of Bethel, 11 Ga. App. 498 (75 S. E. 819); Denton v. Hannah, 12 Ga. App. 495 (7) (77 S. B. 672); Frajihlin v. Fields, 13 Ga. App. 463 (79 S. E. 366); Smith v. Hilton A Dodge Lumber Go., 13 Ga. App. 785 (80 S. Ei 25) ; First National Banh v. Borne Mercantile Go., 14 Ga. App. 99 (80 S. E. 210). Neither a ground of a motion for a new trial assigning error upon the admission of evidence, nor a similar assignment of error in a bill of exceptions, can be considered, unless the evidence is set forth in such manner that the question can be' decided without reference to other parts of the record. Hides v. Mather, 107 Ga. 77 (32 S. E. 901); Thompson v. American Mortgage Co., 107 Ga. 832 (2) (33 S. E. 689); Georgia Nor. By. Go. v. Hutchins, 119 Ga. 504 (5) ' (46 S. E. 659); Hides v. Webb, 127 Ga. 170 (5) (56 S. E. 307).</p> <p>3. Ground 3 of the amendment to the motion for a new trial, which assigns error upon the admission of certain evidence, upon the ground that it was immaterial and irrelevant, is without merit. In view of testimony "previously introduced by the plaintiff, this evidence became relevant as tending to throw light upon a material issue in controversy; but even if immaterial, its admission is not shown to have been harmful. Unless a reasonable likelihood of a prejudicial effect appears, the admission of evidence merely immaterial will not authorize the setting aside of a verdict and the grant of a new trial. Travelers Insurance Co. v. Thornton, 119 Ga. 455 ( 8)" ’(46 S. E. 678); Gilleland v. Louisville A Nashville B. Co., 119 Ga. 789 (2) (47 S. E. 336).</p> <p>4. The motion for a new trial complains of the following excerpts from the charge of the court: “He [the defendant] alleges and contends that lle made two payments to the attorneys of record in the case, and that upon procuring statement from these attorneys of record of the balance due, lie then and there paid that balance, and that he thereby discharged in full the debt represented by this execution and judgment.” Error is assigned thereon because there is no allegation in the affidavit of illegality, nor any evidence, that a statement of the balance due was given the defendant, such as would authorize the charge.</p> <p>(a) The defendant objected to a consideration of this assignment, for the reason that the entire charge is not specified and sent up as a material part of the record. This objection is without merit. The rule is that where the entire charge of the court is not sent up in the bill of exceptions or in the record, and exception is taken to a portion of it which, without qualification, is error, and it does not appear from the Certificate of the judge who tried -the case that it' was qualified by another part of the charge, this court will presume that there was no qualification. Central Railroad v. Senfi, 73 Qa. 705.</p> <p>(5) This excerpt from the charge is not, however; unauthorized by the evidence, and the verdict can not for that reason be set aside. The defendant testified as follows: “He [referring to the attorney of plaintiff to whom it is alleged the payment was made] told me he woüld be in Butler and would bring the amount with him, and at the Sealy House in Butler I gave him check on the Farmers & Merchants Bank for $101.30 as final and full payment. He told me it was the balance, and I gave him check to cover.”</p> <p>5. The instruction complained of in ground 6, and the requested instruction set out in ground 7, which, it is complained, the court refused to give, are in substantial accord, and neither exception will justify setting the verdict aside.</p>

<p>ítule for contempt; .from Wilcox superior court—Judge Crum. June 18, 1917.</p>

<p>Money rule; from Richmond superior court—Judge H. C. Hammond. May 30,1917.</p>

<p>Complaint; from city court of Quitman—Judge Long. September 29, 1917.</p>

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

<p>Action for damages; from FultOn superior court—Judge Bell. October 7, 1915.</p>

<p>Action for damages; from city court of Polk county—Judge John K. Davis. June 8, 1917’.</p>

<p>Complaint; from Whitfield superior court—Judge Wright, presiding. August 2, 1917.</p>

<p>Certiorari; from Fulton superior court—Judge Bell. October 10, 1917.</p>

<p>Complaint; from Douglas superior court—Judge Bartlett. July 30, 1917. ' .</p> <p>E. L. Bedwine brought suit against Peter Love and T. J. Blair on a promissory note, alleging that Love gave the note to Blair, and .that Blair assigned and transferred it to the plaintiff,.and that the plaintiff was the holder and owner of the note. The defendants filed a plea, admitting the execution of the note, but denying that the plaintiff was the owner, and alleging that it was indorsed by Blair to TV. H. Bedwine in consideration of the transfer to Blair by TV. II. Bedwine of certain shares of the Tennessee Oil Company stock, which TV. II. Bedwine was to turn over to him; that TV. H. Bedwine represented that the Tennessee Oil Company was perfectly solvent, and he (Blair) could make a large amount of money by buying the stock; and, upon thes'e representations, which he believed, he delivered this note to Bedwine; that the representations were false and fraudulent, and the stock was never delivered tó him, and he received no consideration for the transfer of the note, and that the title to the note remained in him, and he asked that the court so decree.- It was further alleged that if he transferred this note to E. L. Bedwine, he (Blair) did not know it, and that all the' transactions he had about the note were made with TV. H. Bedwine, and that if TV. H. Bedwine was not acting 'for himself; he was acting as the agent of E. L. Bedwine, and made the statements as her agent.</p> <p>The trial judge directed a verdict for the plaintiff, and the defendants excepted.</p>

<p>. Trover; .from Chattooga superior court—Judge Wright. Sep-^ tember 13, 1917.</p>

<p>Complaint; from Colquitt superior court—Judge Thomas. ' October 2, 1917.</p>

<p>1. Where a bill of exceptions is not tendered to the judge until after the time prescribed by law for tendering it for certification, he is without jurisdiction to certify to it; and a bill oí exceptions dismissed by the reviewing court because not tendered in the prescribed time is to be treated as void ab initio. In such case the judge’s certificate could not operate to arrest the running of the time in which, under the statute of limitations (Civil Code of 1910, § 4381), an action'may be renewed after nonsuit or dismissal. .</p> <p>2. The Supreme Court having dismissed, on the ground that it was not tendered in the time prescribed by law, the bill of exceptions by which it was sought to review a judgment of nonsuit as to an action renewed in the case now under consideration (Grant v. Southern Bell Telephone &e. Go., 145 Ga. 298, '89 S. E. 364), that bill of exceptions did-not arrest the operation of the statute of limitations; and, it appearing from the plaintiff’s petition that the second suit was brought more than six months after the judgment of nonsuit was rendered, and more than two years after the personal injury for which the plaintiff was suing, the court erred in overruling the defendant’s demurrer, in which the bar of the statute of limitations was set up.</p>

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

<p>Complaint; fr.om city court of Polk county—Judge John K. Davis. July 3, 1917.</p>

<p>Appeal; from Floyd superior court—Judge Wright. May 31, 1917.</p>

<p>Action upon contract; from Barrow superior court—Judge Cobb. July 13, 1917.</p>

<p>The suit was based upon a contract under the terms of which the defendants agreed to purchase from the plaintiff certain stock in an insurance company, at.a specified price, in case of removal of the corporate domicile of the company from its then location to another county. The evidence did not show that any amendment to the charter of the corporation was ever obtained authorizing the removal of its principal office as stipulated in the contract; and consequently no complete legal removal was ever in fact effected. The allegations in the petition, therefore, not being sustained by proof, a nonsuit was proper.</p>

<p>Certiorari; from Bibb superior court—Judge Mathews. 'July 27, 1917. .</p>

<p>Distraint; from Colquitt superior court—Judge Thomas. November 24, 1917.</p>

<p>Action on contract; from city court of Albany—Judge playton Jones. May 16, 1917.</p> <p>The petition is by'“R. A. Malone, as attorney in fact for J. M. Williams,” and alleges, that the “petitioner entered into a contract "with . . defendant [S. 0. Burg], whereby'he sold to him certain lands;” that “petitioner has complied with each and every condition of said contract in full,” and the defendant fails and refuses to perform the same; and by reason of the breach of said contract by the defendant, petitioner has been injured and damaged in the sum of $500; for which judgment is prayed. The contract, as appears from a copy attached to the petition, is signed: “R. A. Malone, attorney in fact for J. M. Williams. S. 0, Burg.” It begins as follows: “We, the undersigned, hereby agree as follows : that whereas R. A. Malone, true and lawful attorney in fact for J. M. Williams, has this day sold to S. 0. Burg lots of lands Nos. 160 and 161 in the first district of Dougherty county, Ga., same being the property of the said Williams; and whereas the said S. 0. Burg has this day deposited in the Georgia National Bank of Albany, Georgia, the sum of $500 as evidence of his good faith and as part payment of the purchase-price of the above-described lands, now, therefore, it is agreed by the parties hereto that the said bank; shall hold the said $500 so deposited under this agreement until the said Malone shall furnish the said Burg with a complete abstract of title to the property hereinbefore described and the title shall have been approved by the attorney at law .for the said Burg.” It is further agreed that if the title to the property is satisfactory to Burg “the said Malone shall make and deliver” to him a bond for title to the property, and the bank shall immediately turn over to the said Malone the $500 so deposited;' and that if the title is not satisfactory to the attorney at law for the said Burg, the $500 deposited shall be turned over by the bank to Burg; that the purchase-price shall be $9,000, to be paid in a manner specified in the contract, and upon the payment of the last purchase-money note “the said Malone hhall execute'and deliver to the said Burg a good and sufficient warranty deed to the above-described property;” and that in the event Burg shall fail to comply with any part of this agreement the money deposited with the bank therewith shall be declared forfeited and the bank is authorized to turn the same over to the said Malone.</p> <p>Grounds 1, 2 and 3 of the demurrer, to which the decision refers, are: (1) The petition has no proper party authorized by law to sue on the contract upon which the suit is based; (2) the person who holds a legal interest in and to the contract sued on is not a party to the suit; and (3) the petition sets forth no cause of action against the defendant.</p>

<p>Complaint; from Wilcox superior court—Judge Crum. June 5, 1917.</p>

<p>Petition for certiorari; from Bibb superior court—.Judge Mathews. August 3, 1917.</p> <p>Gaines sued the Continental Aid Association, in the municipal court of Macon. On the first trial of the case the judge directed a verdict for the defendant. The plaintiff made a motion for a new trial, which was overruled; a certiorari was sustained; and on the second trial the jury found for the plaintiff. The defendant then made a motion for a new trial, which the judge of the municipal court granted, and a petition for certiorari, assigning error thereon, was presented by the plaintiff to the judge of the superior court, he refused to sanction the certiorari, and the plaintiff excepted.</p>

<p>1. It not being alleged wbat duties in mill No. 2 required tbe plaintiff to go daily to that mill from his place of work on the fifth floor of mill No. 5, the court erred in overruling the special demurrer calling for this information.</p> <p>2. Where injury to a servant results from concurrent negligence of the master and a fellow servant, but would not have been sustained but for the master’s failure to perform his duty, the master is liable.</p> <p>3. The ruling of the trial judge on the general demurrer and on the special grounds of demurrer other than that dealt with in the first headnote, was not erroneous, but, on account of the error stated above, the judgment is reversed.</p>

Certiorari; from Eulton superior court—Judge Bell. October 11, 1917. The Atlanta Loan and Saving Company sued Mrs. J. E. West et al., in the municipal court of Atlanta, on a promissory note. The defendants filed a special demurrer to the petition. It was overruled, and a verdict was rendered in favor of the plaintiff. A new trial was granted on motion of the defendants; and upon the second trial they insisted on their special demurrer.

<p>Action for damages; from city court of Richmond county— Judge Black. November 7, 1917.-</p> <p>The petition alleges, that the plaintiff was employed by the railway company in its yard as a common laborer in repairing its cars; that in repairing its cars its employees were sometimes required to use jacks and to jack up or raise one end of the car so that the wheels could be removed from under the car; that the jacks used for this purpose were furnished by the company and were left about in the yard to be used by the employees 'as the necessity of the occasion required, and it was required that the employees, when they needed the jacks, should get the first ones that came handy; that the plaintiff and coemployees were in the yard, working on a box-car, one end of which had been raised, and it was desired to lower the end of the ear, and when the plaintiff undertook to work the jack under the car to lower the end, the jack slipped, the handle flying up and striking him in the jaw, and inflicting injuries, described, for which he sues; that "said injury was caused by the said jack slipping from being old and worn, and the cogs were so worn that they would not hold; which condition was known to the defendant company, or in the exercise of ordinary care and diligence should have been known, and which condition was not known to . . petitioner, it not being his duty to inspect said tools; and which condition could have been discovered by inspection only;” that “the injuries complained of were caused solely by the negligence of defendant company, in .that (a) it failed to furnish . . petitioner with safe tools, machinery, and appliances with which to do his work,” and in 'that (b) it “failed to discharge its duty in inspecting said jacks and discover'ing their worn-out condition and remedying the same before furnishing them to petitioner for use, and not notifying him of their unsafe condition;” that he “was free from fault in the"premises and did hot know of the worn-out condition of said jacks, and did not have equal means with the company of ascertaining said worn-out condition, and was in the exercise of all ordinary care and diligence for his own safety.”</p> <p>The demurrer was on the grounds that no cause of action was set out, and that it was apparent that the plaintiff was injured “as the result of his own action.” ■</p>

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

<p>Motion for new trial; from city court of Hall county—Judge Wheeler. November 34, 1917.</p>

<p>Indictment for forgery; from Laurens superior court—Judge Kent. November 2i, 1917.</p>

<p>Action upon bond; from Troup superior court—Judge Terrell. May 17, 1917.</p>

<p>1. The defendant in certiorari having assumed the position that “to render a decision upon any issue raised by the certiorari will . . be vain and useless,” and having induced the court to dismiss the certiorari in accordance with that position, and the plaintiff having acquiesced in that ruling, the defendant in certiorari is now estopped from taking any contrary position in the same case, or between the same parties respecting the subject-matter of the same ease; and this is true whether the judgment thus induced was right or wrong. Taylor v. Crook, 136 Ala. 354 (34 So. 905, 96 Am. St. E. 26) ; Eaber-Blum-Bloch Eat Oo. V. Friesleben, 5 Ga. App. 123 (62 S. E. 712) ; Manee v. State, 5 Ga. App. 230 (62 S. E. 1053) ; Long V. Lawson, 7 Ga. App. 461 (67 S. E. 124) ; Crusselle v. Reinhardt, 68 Ga. 619; Anderson v. Olark, 70 Ga. 362; Oheney y. Selman, 71 Ga. 384; Youngblood y. Youngblood, 74 Ga. 614; Miller v. Wilkins, 79 Ga. 475 ( 4 S. E. 261); Lynn v. New England Security Oo., 98 Ga. 442 (26 S. E. 750) ; American Grocery Go. y. Kennedy, 100 Ga. 462 (28- S. E. 241); Lulher v. Olay, 100 Ga. 241 (28 S. E. 46, 39 L. E. A. 95) ; Vaughn y. Strickland, 108 Ga. 661 (34 S. E. 192) ; Waldrop v. Wolff, 114 Ga. 619 (40 S. E. 830) ; Griffin v. Collins, 122 Ga. 107 (49 S. E. 827); Gate Oily Oolton Mills v. Cherokee Mills, 128 Ga. 174 (57 S. E. 320) ; Lancaster v. Brown, 139 Ga. 376 (77 S. E. 381) ; Davis v. Wakelee, 156 U. S. 680 (15 Sup. Ct. 555, 39 L. ed. 578) ; Bank of Irongate v. Brady, 184 U. S. 665 (22 Sup. Ct. 529, 46 L. ed. 739) ; Bensieck v. Cook, 110 Mo. 173 (19 S. W. 642, 33 Am. St. R. 422); Hodges v. Winston, 95 Ala. 514 (11 So. 200,, 36 Am. St. E. 241).</p> <p>2. The superior court having held that the certiorari presented only moot questions for decision, and there being no exception to that ruling which this court can consider, it must stand as the law of the case, binding alike upon this court and upon the superior court, until set aside in some one of the methods prescribed by law. Sims v. Ga. Ry. do. Oo., 123 Ga. 643 (51 S. E. 573); Matthews v. Slate, 125 Ga. 248 (54 S. E. 192).</p> <p>3. If the certiorari presented only moot questions for decision, a dismissal of the case could not prejudice any right of the plaintiff in certiorari in any other case, whether so provided in the judgment or not. See Bouvier’s Law Diet. (Rawle’s Third Rev.), “Moot,” and authorities there cited.</p> <p>4. Where a defendant in certiorari moves to dismiss the case, on the ground that only moot questions are presented for decision, and the plaintiff’s sole reply is that such dismissal might affect his rights in - another case, the superior court may, in sustaining the motion, expressly provide that the judgment shall be “without prejudice to the plaintiff in certiorari” in any other case. Eenderson V. Eoppe, 103 Ga. 684 (30 S. E. 653).</p> <p>5. This court will not consider moot questions, except to determine that they are or must be held to be moot, and to make such other rulings as result from a determination that the principal question is or must be held to be moot. Benton v. Singleton, 114 da. 548 (4) (40 S. B. 811).</p> <p>6. A motion in arrest of a judgment dismissing a moot case is itself moot.</p> <p>7. The record presents no other question that can be decided, and shows no error that requires a reversal.</p>

<p>Action for damages; from Whitfield superior court—Judge Tarver. May 26, 1917.</p>

<p>Complaint; from Fulton superior court—Judge Pendleton. May 21, 1917.</p>

Action for damages; from Floyd superior court—Judge Wright. July 11, 1917.

<p>Lien foreclosure; from city court of Blakely—Judge Sheffield. July 16, 1917.</p> <p>Cordray sued Howell on open account, asking a general judgment in the sum of $258.17, and that a special materialman’s lien be established in his favor on described realty; alleging that for thie .construction of a’certain house located thereon the material shown by the bill of particulars had been furnished and used. In accordance with the verdict a general judgment was entered in favor of plaintiff in the amount sued for, and the special lien as ,,-prayed for was set up and established. The account appears to have been proved, except an undisputed overcharge of $1.32 on an item of “2 pair sash,’2 charged in the bill of particulars at $10. The . plaintiff testified that the defendant told him that he (the defendant) was getting all the materials included in the account for the purpose, of using them in the construction of the house referred to above, and that while he was unable to swear that it was thus used, to the best of his judgment it all actually did go into the construction of that house. The defendant, by his plea, denied the allegations of the petition with reference to the use of the materials furnished, and in his testimony disputed the statement attributed to him by the plaintiff. According to his testimony he was'unable to state just what part of the material included in the suit was actually used in the construction of the building referred to, or how much was otherwise used, or disposed of by sale. It does, however, appear both from the evidence of < the defendant and from the testimony of a witness for the plaintiff, who was his bookkeeper at the time of the transactions, that one window, $2, one transom, $1, one door, $1.85, and the two pair of sashes ■ charged at $10 were specifically purchased by the defendant for use in another building, that they were so furnished by the plaintiff through this witness; and it appears that they did not go into the construction of the building upon which the special lien was sought. The defendant further showed that certain rooms of this building had remained either wholly or partly unceiled, and he undertook to prove by a carpenter’s method of calculation that the amount of flooring and ceiling included in the bill could not have been used in the structure as it thus stood when completed.</p>

<p>Complaint; from city court of Savannah—Judge Freeman. July 9, 1917.</p>

<p>Distraint; from city court of Dublin—Judge Flynt. June 20/ 1917.</p>

<p>Complaint; from Murray superior court—Judge Tarver.</p>

<p>Money rule; from city court of LaGrange—Judge Harwell. September 20, 19Í7.</p>

<p>Motion to amend decree; from Muscogee superior court—Judge Howard. March 1, 19Í7.</p>

<p>Certiorari; from Fulton superior court—Judge Pendleton. No^, vember 26, 1917.</p>

<p>Complaint; from Cordon superior court—Judge Tarver. June 30, 1917.</p>

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

<p>Action for damages; from Ben Hill superior court—Judge Crum. July 25, 1917.</p>

<p>Complaint; from Richmond superior court—Judge H. C. Hammond. October 8, 1917.</p> <p>Alexander, as receiver of the Irish-American Bank, brought suit against Ellen Dever, to collect from her as a stockholder of the bank an amount equal to the face or par value of the shares of its stock owned and held by her at the time of its failure. The petition alleged that the said shares were subscribed for by James Dever, and- by his will were bequeathed to Ellen Dever, and that. they were delivered to her by the executors of the will;, that she was a life-tenant under the will, and the stock was held by her as such life-tenant. When the case came on for trial she moved to dismiss the suit, on the ground that the petition showed no cause of action against her. The court sustained the motion and dismissed the suit, and the plaintiff excepted.</p>

Motion to set aside judgment; from city court of Floyd county •—Judge Nunnally. October 11, 1917. J. C. Sheppard brought trover against Green White for two bales of cotton, alleging that the value of the cotton was $115, and its . yearly' value $8.05, being the interest thereon at seven per cent, per annum. Green White as principal, and Johnston and Harris as his sureties, executed the usual eventual condemnation-money bond, payable to the plaintiff, in the sum of $230.

<p>Complaint; from Pickens superior court—Judge Morris. November 2, 1917.</p>

Complaint; from DeKalb superior court—Judge .Smith. March 16, 1917.

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

<p>Courts may, upon a proper showing, compel the production of a paper, to be annexed to interrogatories propounded by the party calling for the document, provided the court requires a copy of the document to be left in the place of the original, to be used in lieu thereof in case of the non-return of the original, and also requires bond and security from that party to the party producing the document, conditioned to be void only if the document be not lost, destroyed, or injured, but be restored to the latter party as soon as the object of its production shall have been accomplished. Faircloth v. Jordan, 15 Ga. 511; Davis V. Davis, 47 Ga. 81; Sibley v. Saslam, 75 Ga. 490, 493. The security to be thus exacted ought to be at least as much as a bond of indemnity and a consent that if the note or writing be not restored, objections to it shall be waived and the copy of it on file be read in its place,-not only in that case, but in all subsequent cases. Stevens v. Zachary, 27 Ga. 427. Without passing upon the sufficiency of the peti1 tion, the orders of the judge under the proceedings in the instant case did not conform to the procedure or to the requirements laid down in the eases cited above, and were therefore illegal. Under the precedents cited, the.motion to dismiss the bill of exceptions, as assigning error upon a ruling merely interlocutory, must be denied.</p>

<p>Certiorari; from Chatham superior court—Judge Meldrim. July 11, 1917.'</p>

<p>. Complaint; from Fulton superior court—Judge Ellis. September 8, 1917.</p>

<p>Complaint; from city court of Cartersville—Judge Aubrey. June 27, 1917.</p>

<p>Complaint; from Columbia superior court—Judge H. C. Hammond. September 15, 1917.</p>

<p>Action for damages; from city court of Swainsboro—Judge Kirkland. September 24, 1917.</p>

<p>Distraint; from city court of Jefferson—Judge Mahaffey: September 9, 1917.</p>

<p>Money rule; from Fayette superior court—Judge Searcy. September. 19, 1917</p>

Complaint; from Barrow superior court—Judge Cobb; December 17, 1917. The Bank of Bethlehem brought suit against McDaniel as principal, and E. S. Harris and E. V. Harris as indorsers, on a note for 5,000 pounds of middling lint cotton of the alleged value of 19 cents per pound, dated January 27, 1913, and due November 1, 1916, payable by its terms to E. S. Harris and E. Y. Harris, and by them .indorsed to the plaintiff.

<p>The trial judge did not err in directing the verdict; and it was not error to overrule the certiorari.</p>

<p>Affidavit of illegality of execution; from Colquitt superior court' —Judge Thomas. October 10, 1917.</p>

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

<p>Action for damages; .from city court of Savannah—Judge Freeman. February 9,' 1918.</p>

<p>Certiorari; from Cherokee superior court—Judge Morris. October 13, 1917.</p>

<p>Accusation, of misdemeanor; from city court of Savannah— Judge Rourke. February 2, 1918.</p>

<p>Certiorari; from Pulton superior court—Judge Bell. October 15, 1917.</p>

<p>Petition for certiorari; from Chatham superior court—Judge MeMri-m. June 11, 1917. . ,r</p>

<p>Accusation of misdemeanor; from city court of Savannah— Judge Kourke. October 3, 1917.</p>

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

<p>Certiorari; from Fulton superior court—Judge Bell. October 10, 1917.</p>

<p>Indictment for bigamy; from Douglas superior court—Judge Bartlett. November 17, 1917.</p>

<p>Conviction of assault with intent to rape; from Early superior court—Judge Worrill. November 3, 1917.</p>

<p>Where an accusation charged in one count the unlawful possession of spirituous liquors, and in another count an unlawful sale of spirituous liquors, an acquittal on the first count did not render illegal a conviction on the other.</p>

<p>Indictment for burglary; from Fulton superior court—Judge Hill. December 12, 1917.</p>

<p>Accusation of possessing intoxicating liquor; from city court of Carrollton—Judge Beall. January 7, 1918.</p>

<p>There being some evidence to authorize the verdict of assault with intent to rape, and the verdict being approved by the trial judge, this court will not interfere.'</p>

<p>Indictment for assault and battery; from Carroll superior court —Judge Terrell. January 11, 1918. i</p>

<p>' Conviction of manslaughter; from Fulton superior court—Judge Hill. January 2, 1918.</p>

<p>Accusation of possessing intoxicating liquor; from city court of Dublin—Judge Flynt. January 26, 1918.</p>

<p>Indictment for bastardy; from Haralson superior court—Judge Bartlett. December 18, 1917.</p>

<p>Indictment for making intoxicating liquor; from Harris superior court—Judge Howard. February 2, 1918. ■ '</p>

<p>Accusation of maintaining lewd house; from city court of Floyd county-^Judge 'Nunnally. February 9, 1918.</p>

Indictment; for assault with intent to murder^ from Spalding superior court—Judge Searcy. February 11, 1918. The plaintiff in error was found guilty of assault with intent to murder. The evidence showed that' officers went to raid a still.

Accusation of unlawful possession and sale of liquor; from city court of Savannah—Judge Rourke. December 22, 1917.

<p>Accusation of possessing intoxicating liquor; from city court of Dublin—Judge Elynt. February 19, 1918.</p>

<p>Failure to instruct the jury on the law as to the punishment for attempts to commit crime, and as to principals in the first and second degrees, does not require a new trial in this case.</p> <p>The verdict was authorized by the evidence.</p>

<p>1. Without an appropriate and timely request in writing, it was not error requiring a new trial for the court to fail, in its- charge, to define the word “felony,” or the phrase “serious personal injury.” Piclcens v. State, 132 Ga. 46, 47 (63 S. E. 783); Jordan V. State, 16 Ga. App. 393, 400 (85 S. E. 455), and cases cited.</p> <p>2. When the evidence for the defendant demands a charge on self-defense, - and the statement of the accused is so uncertain and indefinite as to leave in doubt whether he claimed he shot in self-defense,' or that the killing was the result of accident or misfortune, he will not he heard to complain that the court gave to the jury a charge based upon his own uncertain and indefinite statement and giving-him the benefit of both theories oí defense.</p>

<p>Indictment for seduction; from Payette superior court—Judge Searcy. February 16, 1918. '</p>

<p>Indictment for assault with intent to murder; from Harris superior court—Judge Howard. February 1, 1918.</p>

<p>Accusation of possessing intoxicating liquor; from city court of Macon—Judge Guerry. February 20, 1918.</p>

<p>Accusation of larceny; from city court of Wrightsville—Judge Blount. February 23, 1918.</p>

<p>Conviction of manslaughter; from Randolph superior court-judge Worrill. February 12, 1918.</p>

<p>A conviction of the offense of gaming was authorized by the evidence in this case.</p>

<p>Accusation of misdemeanor; from city court of Wrightsville— Judge Blount. February 23, 1918.</p>

<p>Accusation, of possessing intoxicating liquor; from city court of Poik county—Judge John K. Davis. February 16, 1918.</p>

<p>Writ of error; from city court of Dublin.</p>

<p>Action on bond; from Effingham superior court—Judge Sheppard. October 16, 1916.</p> <p>The action was against a sheriff and the sureties on his official bond. From the petition it appearéd: that in a divorce case in which alimony was allowed, the court, contemporaneously with the filing of the petition for divorce and alimony, passed an order “that the writ of ne exeat república-be and is hereby granted, and said defendant is hereby stayed from departing bqyond the jurisdictional limits of this court until it is further ordered herein;” and that “bond in the penal sum of $720 be taken from the defendant in terms of the statute.” The clerk of the court thereupon issued a writ directed to the sheriff, requiring that officer to arrest the body of the defendant and to keep him safely “until he enters into bond and security, in the said sum of $720, not to depart the State without the order of said court, and Conditioned to pay any judgment that may be found against him in favor of his wife, . . . ; in default thereof to. confine him in the common jail of said county, according to the statutes in such eases made and provided.” It was alleged that the sheriff did not require him to give the ne exeat bond, but arrested him, and, after having him in custody, permitted him to escape and remain away from the jurisdiction of the court; that the sheriff was informed of the whereabouts of the defendant and was advised to arrest him and lodge- him in jail in obedience to the writ of ne exeat, but refused to do so; and that because of these facts his wife and child were unable to force him to comply with the judgments granting alimony.</p> <p>In response to certified questions of the Court of Appeals, the Supreme Court held, that, under the facts stated therein, only a bond for the appearance of the principal could have been lawfully required, and that the writ requiring the taking of a bond not only for the personal appearance of the defendant, but for the payment of the judgment for alimony, was void, and. the sheriff could avail himself of this fact as a defense to this' suit. • It was also held that this suit is not of the class of cases of which the Supreme Court is given jurisdiction by the constitution, art. 6, sec. 2, par. 5 (Park’s Code, Supp. ,1917, § 6502). See more full report in 147 Ga. 773.</p>

<p>Certiorari; from Barrow superior court—Judge Cobb. June 29, 1918.</p>

<p>Lien foreclosure; from Murray superior court—Judge Tarver. September 8, 1917.</p>

<p>1. Promises mutual to the extent that each affords the sole consideration to the other will not be construed as independent, but will, in the absence of clear, indications to the contrary, be taken as dependent one upon the other; and while, ordinarily, dependent covenants are such as mutually afford to the other the whole consideration, still the-stipulations and the circumstances of the contract may be such as to render covenants mutual and dependent even though one of them affords to the other only a part of its consideration. In such a case the question as to whether covenants shall be taken as mutually dependent is to be determined by reference to the rational meaning and intent of the parties as disclosed by the entire instrument, read in the light of the surrounding circumstances and the-purposes for which the contract as a whole was made. Civil Code (1910), §§ 3720, 4223, 4303; Schmidt v. Mitchell, 117 O a. 6 (43 S. E. 371) ; 7 R. C. L. 1090.</p> <p>2. Even though an agreement may refer to certain notes as having been given “in payment,” they are not to be so taken, where, by the terms of the same instrument, one of the conditions of the contract is to the effect that the obligations made by the notes shall be promptly met.</p>

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

<p>Complaint; from Chatham superior court—Judge Meldrim. September 21, 1917.</p>

<p>Complaint; from city court of Swainsboro—Judge Kirkland. August 39, 1917.</p>

<p>Action for damages; from city court of Hall county—Judge Wheeler. ■ October 6, 1917.</p>

<p>“1. As a general rule, the duration of liability under corporate indemnity bonds on the part of the insurer to the insured is coextensive with that of the ‘risk’ of the insured, in the absence of specific provision limiting ,the insurer’s liability. The liability, of course, can not be made to extend to any acts prior to its 'execution, in the absence of specific covenant to that effect. The bond under consideration herein contained no specific limitations.</p> <p>“2. Where the court has passed an order authorizing its receiver to reduce the bond previously given by him to a smáller amount as of a given date, providing that the bond when so reduced shall be deposited by the receiver or his surety with, the clerk of the superior court, and ordering the receiver to pay the premium due for such new bond, and no new bond is in fact given, such- order will not, have the effect of modifying the original bond in any particular.</p> <p>“3. The fact that the receiver had in his hands, on the date provided in the order for the reduced bond to take effect, more money than the amount for whi.ch judgment is asked would not prevent a recovery by the plaintiff of the full amount of the loss under the original jiond.</p> <p>“4. ‘Where money is in the hands of a receiver for preservation to await' final disposition by order or decree, and the same is deposited in a bank selected by himself, the receiver is personally liable therefor in the event of the failure of the bank.’</p> <p>“5. Where the court orders its receiver to pay to the attorneys of record certain dividends due to creditors of an insolvent debtor, and the attorneys and the receiver agree that the receiver may mail checks directly to the clients of such attorneys, and the receiver fails to remit to a . portion of them, such agreement will not relieve the bondsman of the receiver from liability for the amounts the receiver so fails to remit, although these amounts be lost with other funds placed by the receiver in a bank of his own selection, which fails.</p> <p>“6. Where a receiver was required, by the terms of the order of appointment, to hold the funds coming into his hands as receiver subject to the order of the court, and, without any order for so doing, he deposited the funds in a bank of which he was cashier, which afterward failed, and thereby, as he averred, the funds were lost, his omission to pay out funds under an order of court declaring a dividend,, and failure on his part to make “substantial” compliance with the provisions of the Civil Code, § 2351, relative to the making of annual returns, would result 'in a forfeiture of his commissions as receiver.”</p>

<p>Affidavit of illegality of execution; from city court of Nashville. Judge Christian. June 11, 1918.</p>

<p>Complaint; from city court of Houston county—Judge Riley. July' 16, 1917. ’</p>

Cértiorari; Horn Wilkinson superior court—Judge Park. October 12, 1917. Dixon foreclosed a chattel mortgage given him by R. L. Stanley, and had it levied on a cow and some hogs. The property was claimed by E. W. Pierce. The'jury in the justice’s court found in favor of the claimant, and a judgment was entered finding the property not subject.

<p>. In oases of personal torts, where the verdict returned is greatly disproportioned to the injury proved, courts have the power to grant a new trial on the ground of excessive damages. From the nature of such cases no fixed rule can be established upon this subject; but when, from the unreasonableness of the verdict, the conviction is forced upon the mind that the rule of .fair compensation has been departed from, a new trial will be granted.</p>

<p>Certiorari; from Gordon superior court—Judge Tarver. January 19, 1918.</p>

<p>Complaint; from city court of Madison—Judge Anderson. January 28, 1918.</p> <p>The H. H. Fitzpatrick Company brought suit .against Sorrells for $198.40 principal, and $95.22 interest, alleging that the debt was evidenced by a promissory note, a copy of which was attached to the petition. The copy attached was of a note for $225 principal, besides interest, and in the same instrument was a mortgage on certain crops. The court, over the objection of the defendant, 'allowed an amendment changing the principal of the note to $725. A note described in the amendment as “the original note sued on” was attached to it, and the petition as amended showed certain credits thereon, amounting to $537.51. The amendment was demurred to on the ground that it added a new and distinct cause of action. At' the trial the original note attached to the amendment was introduced in evidence, and the secretary of the plaintiff corporation testified: “The note sued on was not given in liquidation or settlement of any account or for value received at the time it was given. Value had been in part received, inasmuch as part of the account had been made at the time the note was given. It was given to secure that and a future account still to be made. I do not know how much of the account had been made. Nothing was said'about that. It was just a mortgage note we are in the habit of taking to secure an account when We run anybody. It was not in whole for what he bought or what he was going to buy. The note don't show Avhat lie bought or what he owed us. We had to go to the account to ascertain that.” There was no further evidence. The defendant moved that a verdict be directed in his favor, “on the ground that the testimony. showed that the note Avas not given in liquidation and settlement of an account owed, nor for a present or past Araluable consideration, but in part at least for a future valuable consideration; and on the further ground that the note itself did not and could not show the indebtedness of defendant to plaintiff, but recourse to the account as stated on the books of plaintiff was necessary to ascertain the alleged indebtedness, and that therefore there could be no judgment on 'the note, said indebtedness being on account.” This motion was overruled, and a motion to dismiss the suit was also overruled, and the court directed a verdict for the plaintiff. The defendant excepted, .assigning error on each of the rulings stated.</p>

<p>Certiorari; from Tattnall superior court—Judge Sheppard. December 1, 1911.,</p>

<p>Complaint; from city court of Atlanta—Judge E.eid. June 23, 1918. "</p>

Affidavit of' illegality of execution; from Walton superior court— Judge Cobb. July 16, 1917. The plaintiff in error filed separate affidavits of illegality to the proceeding of two tax fi. fas. issued against him by the City of Monroe. By consent of counsel the cases were consolidated and submitted to the presiding judge, under an agreed statement of facts.

<p>Affidavit of illegality of execution; from Fulton superior court —Judge Bell. May 10, 1917.</p>

<p>Action upon bond; from Berrien superior court—Judge Thomas. September 10, 1917.</p>

<p>Action for damages; from Whitfield superior court—Judge'Tarver. September 18, 1917.</p>

<p>“The right to rule an attorney for money alleged to be in his hands as such depends upon the existence ofNthe relation of attorney and client, and is limited to the client;” and where, from .a petition for a rule to require an attorney to pay over money collected on an execution purchased by the petitioner, it appeared that the attorney made the collection before the purchase and before he was the petitioner’s attorney, the petition was properly dismissed on demurrer. ■</p>

Action for damages; from city court of EaGrange—-Judge Harwell. September 28, 1917. The original petition alleged: The defendant has damaged petitioner in the sum of $2,000, by reason .of the following facts:(Paragraph 2) On January 9, 1917, petitioner was employed by the defendant in the cotton mills operated by it at Hogansville, Georgia, and had been placed at work therein raising certain beams.

<p>1. There was evidence from which the jury could infer negligence on the part of the defendant; and whether the. consequences- of that negligence could have been avoided by the exercise of ordinary care on the part of the deceased or her husband was an issue of fact for their determination, .and not for determination by this court. The trial judge .having declined to exercise the discretion vested by law in him alone, and to set aside, under the general grounds of the motion for a new trial, the verdict for the plaintiff,' which was supported by some evidence, this court must of necessity hold that-there is no merit in those grounds.</p> <p>2. There is nothing in the record to suggest bias or prejudice on the part of the jury, and the verdict can not be set aside as excessive, since the amount thereof could have been arrived at under the proof submitted, taking-into .consideration that the deceased was a wife and mother. “In estimating the value of ordinary domestic service rendered by a wife, the jury are authorized to take into consideration what may be the value of many serviced incapable of exact proof, but measured in the light of their own observation and experience. ‘Some wives perform manual labor—others do not; yet the husbands of the latter no less than those of the former would certainly be entitled to compensation from wrong-doers for causing inability to perform service. . . There need be no direct or Express evidence of the value of the wife’s services, either by the day, week, month, or any other period of time, or of any aggregate sum.’ Metropolitan St. R. Co. V. Johnson, 91 Qa. 466, 471, 472 (18 S. E. 816).” Standard Oil Co. v. Reagan, 15 ©o'. App. 571 (9), 599 (84 S. E. 69).</p> <p>3. While the plea denied negligence.on the part of the defendant and distinctly alleged that the homicide resulted from a failure on the part of the deceased or her husband (one of the plaintiffs) to exercise ordinary care, contributory or comparative negligence was not pleaded in reduction or mitigation of damages, and therefore this defense was not direptly involved in the case, and in the absence of any timely request in writing for such an instruction, the failure of the court to instruct the jury in regard thereto does not constitute reversible error.</p> <p>4. While it may be true as a matter of fact that a railroad-track is a place of danger, and one going thereon must exercise such a degree of .care and diligence for his own safety as a man of ordinary care and prudence would exercise under similar circumstances, the judge did not err in 'declining so to instruct the jury in compliance with a written request. Neither did he err in declining to give a requested charge as to the duty of the plaintiff J. E. Jarrett in attempting to pass over a railroad public crossing in an automobile. Both requests called for an intimation of opinion as to what would constitute negligence and as to a matter of fact, and the requested charge last mentioned was decidedly argumentative in form. While in the ease of Western é Atlantic R. Co. v. Ferguson, 113 ©a. 708, 713 (39^3. E. 306, 54 S. E. 802), it is declared that a railroad-track is a place of danger, 'and that one who goes thereon is bound to know that he is going into a place where he is subject to the dangers incident to the operation of trains upon that track, it is not there held, nor has it been elsewhere ruled by our Supreme Court or this court, that an instruction to the jury, to this effect would be proper, in view of the mandatory inhibition of section 4863 of the Civil Code, and of tlie reported rulings of the Supreme Court and this court that questions of negligence are for the jury.</p> <p>5. Considered in connection with the entire charge, there is no.merit in the various grounds of the motion for a new trial assigning error upon the instruction given as to the measure of damages for the life of the deceased. The court expressly- instructed the jury that in estimating the present cash value of that life, they should diminish or decrease the figures us,ed in the mortality table, in accordance with “the facts in the particular case under investigation,” and further expressly called attention to the diminished capacity to earn money, resulting from advancing years, and directed them “to be governed by the facts and circumstances as proved, feebleness of health, actual sickness, the loss of employment, voluntarily abstaining from work, the increasing infirmities of age, with a corresponding diminution of earning capacity, and other causes,” and directed them to make proper allowance and deduction' for any diminution in earning capacity resulting from any of these causes. The remaining objections urged as to the instruction as given are without merit.</p> <p>6. There is no substantial merit in any of the other assignments of error, and the trial court did not err in overruling the motion for a new trial.</p>

<p>Complaint; from city court of Newnan—Judge Post. October 5, 1917. , ' .</p>

<p>■ Certiorari; from Upson superior court—Judge Searcy. May term, 19 Í 7.</p>

Certiorari; from Fulton superior court—Judge Bell. October 2, 1917. ' . ' .Morris & Company sued Ozburn, doing business as C. P; Ozburn & Company, on an open account, and he'filed a plea of set-off, alleging that he had, with the consent of the local manager of Morris & Company, ordered a car of tomatoes in the name of Morris & Company, and that when the tomatoes arrived Morris. ,& Company refused to turn the car over to him, and, instead of this, paid'for them'and accepted,…

<p>Mortgage foreclosure; from Harris superior court—Judge Kent presiding. October 8, 1917.</p> <p>To the foreclosure of a mortgage of Cook upon an .automobile and other personal property he interposed an affidavit of illegality, setting up. that he was not indebted to the plaintiffs as alleged; ■ that the mortgage and the note secured by it were signed by him under the following circumstances, to wit: that upon a certain date he purchased from the plaintiffs an automobile for a stated price, and that the note and mortgage were for a part of the purchase-price, and he has paid all of the purchase-price “except the amount now sued for;” that the automobile “was guaranteed and warranted by [the plaintiffs] to run perfectly for a period of eight months,” and they “further guaranteed and warranted to replace all broken and defective parts on said automobile for a period of eight months;” but the carburetor was defective, and he had to pay out for repairs to the carburetor and magneto a stated sum; that the gasoline leaked out on account of defects, and that this cost him a stated sum,- and that by reason of the said defects the consideration of the note and mortgage partially failed, and that the automobile was not worth more than $300, though sold to him for $669; that the motor was defective and insufficient to generate the power necessary to propel the ear, and that the‘plaintiffs refused, upon his request, to take the car and replace it with another; that a new motor was furnished him by the automobile' company, and the freight and installation of this cost him a stated amount; and that the plaintiffs damaged him in the said amounts, on account of the defects and breach of warranty as heretofore set out. The court, on oral motion, passed an order striking the affidavit of illegality; and a verdict for the plaintiffs was rendered, and judgment was entered thereon. Cook, excepted, assigning error 'on the striking of the affidavit of illegality, and'upon the action of the court in permitting the verdict to be- rendered and the judgment to be entered.</p>

<p>Action for breach of contract; from Fulton superior court— Judge Bell. September 22, 1917.</p> <p>Marbut brought suit against the Southern Railway Company and Atlanta Lodge No. 354, Brotherhood Railway Carmenjof America. The defendants filed separate, but identical demurrers to the petition. In the first and third paragraphs of these demurrers it was contended that no-cause of action was set out, and that the matters and things alleged in the petition deprived the plaintiff of the right to maintain a cause of action against the defendants. The second paragraph is that “there is no joint cause of action against this defendant' and its codefendant.” The other paragraphs of the demurrer contain .special grounds. The court by an order on -May 4,1917,.overruled paragraphs 1 and-3, and sustained the other paragraphs of the demurrer with leave to amend within ten days from date. Orders were afterwards passed extending the tinie for amendment to May 26, 1917, and on that day an amendment was allowed and ordered filed, subject to demurrer. By this amendment it was sought to remedy the defects pointed out by the special grounds of the demurrers, but the amendment did not meet paragraph % of the demurrers, viz., that no joint cause of action was set out against the defendants. On September 14 the defendants filed a motion to dismiss the petition. This motion recited the second ground of the demurrers, and the orders of the court on the demurrers, and-stated that, “the amendment [of plaintiff] failing in any way .to meet the judgment of the court sustaining paragraph 2 of the respective demurrers of the defendants,' the judgment as to said paragraph two became final and absolute. Paragraph 2 was a -general demurrer, and the effect of the order of the court in sustaining this general demurrer was to dismiss the petition upon said general demurrer. The plaintiff having failed by the amendment filed by him to remedy this situation, the sustaining of this general demurrer became-final, -and by reason of the sustaining-of such general demurrer, set forth in paragraph 2 of the respective demurrers of the defendants, the case was ended. Defendants show that'-they are now entitled to an order dismissing the case, based upon the said order of the court sustaining the general demurrer of defendants as set forth in paragraph two of their respective demurrers.” The plaintiff -was ordered by the court to show cause why the motion should not be' sustained and the ease dismissed. On the hearing of this motion, on September 22, an amendment striking the defendant Atlanta Lodge No. 354, Brotherhood Bailway Carmen of America, from the petition, tyas offered by the defendant and was' disallowed, and the court thereafter passed an order sustaining the motion and dismissing the case. -The plaintiff excepts to the order- disallowing this amendment, and to the order sustaining the motion to dismiss.</p>

■ Action for damages; from Liberty superior court—Judge Sheppard. September 29, 1917. Bert Smith sued the Georgia Coast and Piedmont Railroad Company for damages on account of the killing of his mule by a train of the defendant. The jury trying the case found for the plaintiff.

<p>An act creating the city court of Baxley limits each term of the court to four weeks from the actual beginning of the term. Where an at-' tachment is returnable to a certain term of that court, a declaration based thereon, filed more than four weeks from the actual beginning of the term, should be dismissed.</p>

<p>1. Since in reckoning the period of 30 days within which a bill of exceptions must ordinarily be tendered to the trial judge (Civil Code, § 6152), only the first or last day shall be counted, and if the last day shall fall on the Sabbath another day shall be allowed in the computation, the bill of exceptions in this ease was signed in time.</p> <p>2. Where a motion to open a default and set aside a judgment is based both upon contentions as to its legal invalidity and upon reasons which necessarily must be supported by extrinsic evidence only, and the judgment complained of recites that the motion is overruled “after hearing •arguments of counsel and considering the evidence submitted,” and the only assignment of error in the bill of exceptions is that “the court erred in not granting said motion to open said default and to set aside the said judgment,” the exception is too indefinite to present any question for consideration by this court or to furnish grounds for reversing-the judgment, since such a case does not involve the mere exercise of the discretion of the judge (as in the grant or refusal of a temporary injunction), and issues of both fact and law were determined by the judgment, and it is impossible for this -court to know from the exception taken whether the judgment on the law or on the facts is complained of.</p>

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

<p>1. The assumption and payment of the liabilities of the bank- furnished a sufficient consideration for the obligation, entered into by the directors, to hold the trust company harmless, and the contract was not unilateral.</p> <p>2. A surety may be sued separately from his principal (Civil Code, § 3559), and it is immaterial, under the facts of this ease, whether the defendant in the lower court be treated as a guarantor or as a surety. Small Co. V. Claoaton, 1 Ca. App. 83 (2) (57 S. E. 977).</p> <p>3. It was not necessary to obtain judgment against the principal before proceeding against the surety pr guarantor in this case. The contract was to pay the.guaranteed amount upon the failure of Lewis to make “prompt and punctual payment” of the amount set opposite his name in the contract, and his failure to do this was distinctly alleged in the petition.</p> <p>4. There is no merit in the contention, raised by the demurrer, that the indemnity contract or bond of the directors was binding upon the makers thereof only upon the further consideration that certain national banks would additionally guarantee and indemnify the company against loss to an extent named. The trust company, under the terms of the contract of guaranty, ■ agreed to assume and pay off the liabilities of the bank upon the conditioh that the makers of the bond furnished to it would indemnify, the company to the extent of $100,000, and also upon a further agreement that certain banks should afford additional indemnity. If the trust company undertook-to pay off the liabilities of the bank without exacting the performance of the additional condition, or if its performance was legally impossible, as contended, this could not afford a reason for relieving Lewis as one of the makers of the indemnity bond or for discharging his surety or guarantor. Erom the contract it is plainly evident that the additional guarantee did not become effective until after the guaranty of the directors was exhausted, and it is therefore immaterial whether this additional guaranty was ■ furnished the trust company or not.</p> <p>5. While a bank may not transfer its assets for the purpose of consolidating with another bank, without the consent of “two thirds of the stock of ekch bank” (Civil Code, § 2303), it is competent for the directors to ' arrange for the payment of its liabilities, if the bank itself he unable to discharge the liabilities in due course, and for this purpose they may borrow money or arrange for such payment by another bank. See Wyman v. Wallace, 201 U. S. 230 (26 Sup.-Ct. 495, 50 L. ed. 738).</p> <p>(a) At all events one of the directors making the contract wkereby the payment of the hank’s obligations was secured can not himself attack the contract because not authorized by two thirds of the stockholders, nor can his surety do so.</p> <p>6. The exception to the sustaining of the demurrer to the defendant’s answer can not be considered, under the decision in Turner v. Gamp, 110 Ga. 631 (36 S. E. 76), the second headnote of which is as follows: “While a defendant in an action may before its final termination bring, to this court for review a’ decision overruling a demurrer to the plaintiff’s petition because the ‘judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have beeno a final disposition of the cause,’ such defendant can not, in a bill of exceptions sued out in such a ease, properly except also to a decision striking his answer or a portion thereof.” See also Got» v. Hardee, 135 Ga. 85 (68 S. E. 932). The ruling of this court in the ease of Harrison v. Douglas, 16 Ga. App. 693, 697 (85 S. E. 970), in which it was said by Chief'Judge Russell that, “there being no question of this court’s jurisdiction to deal with the writ of error [error being likewise assigned therein upon the overruling of a demurrer to the plaintiff’s petition], we deem it proper at this time to dispose also of the question presented by the ruling of the lower court upon the demurrer to the answer,” is erroneous and will not be followed, in so far as it may be in conflict with the rulings of the Supreme Court cited above.</p> <p>7. It does not appear that the trial judge abused his* discretion in referring this case to an auditor, and there is no merit in the exception based thereon.</p> <p>8. The numerous special grounds of the demurrer and other grounds not specifically passed upon are without merit.</p>

<p>1. The action being for money had and received,-which the plaintiff testified was given to the defendant for the specific purpose of aiding in the purchase of a home to be occupied jointly by them, and there being testimony by the defendant to the effect that the plaintiff gave the money to her under an agreement that she would take care of and provide for the plaintiff during the remainder of- the plaintiff’s life, the verdict in favor of the' defendant was authorized.</p> <p>2. Failure to give to the jury an instruction liot requested, as to the shifting of the burden of proof, was not ground for a new trial.</p> <p>3. Evidence taken by depositions was not excluded from the consideration of the jury by the charge of the court that in determining as to the credibility of witnesses the jury “may look to them as they appear on the stand, take their manner,” etc.</p> <p>4. The instructions- complained of as making a recovery depend on a demand for a return of the money in question were not prejudicial to the plaintiff. There was no issue as to a demand, it being admitted by the defendant that such a demand was made.</p> <p>5. There is no substantial merit in the- ground of the motion for a new trial in which it is alleged that the court erred in charging the jury that if the money in question was delivered to the defendant with the intention on the part of the plaintiff that the title to it should pass to the defendant, either as a gift or as consideration for a contract that the defendant should take care of her during the remainder of her life, the plaintiff could not recover in this action, but her remedy -would be a suit for damages for breach of contract.</p>

<p>Certiorari; from Bibb superior court—Judge Matbews. July 5, 1917.</p>

<p>Complaint; from city court of Statesboro—Hinton Booth, judge pro hac vice. ■ July 10, 1917.</p>

<p>Complaint; from city court of Leesburg—Judge Martin. July 17, 1917. ' ’ •</p>

<p>Complaint; from city court of Oglethorpe—Judge Greer.. June 26, 1917.</p>

<p>Certiorari; from Bibb superior court—Judge Mathews. August 22, 1917.</p>

<p>Action for damages; from city court of Griffin—Judge Goodrich. September 25, 1917.</p>

<p>Complaint; from city court of Zebulon—Judge-Dupree. August 19, 1917. ■</p>

Trover; from Dawson superior court—Judge J. B. Jones. October 37, 1917.

■ Attachment; from Pulton superior court—Judge Pendleton. November 5, 1917.

<p>Complaint; from Colquitt superior court—Judge Thomas. October 13, 1917.</p> <p>Hodges brought suit on an open account against Colquitt Luinber Company, for -a balance alleged to be due on three car-loads of lumber and the cost of certain inspection. He alleged that upon complaint filed by the defendant as to one of the cars of lumber, and by agreement with defendant, an inspector of the Georgra-Elorida Saw Mill Association inspected the lumber and made á report favorable to the plaintiff, and, when the defendant refused to pay, suit was brought. The defendant admitted ordering the lumber, but denied liability, and alleged that the car of flooring in dispute “was for their purpose entirely worthless,” and denied agreeing to be bound by the inspection. The trial resulted in a verdict for the plaintiff, and, the defendant’s motion for a new trial being overruled, it excepted.</p>

<p>Action for money had and received; from Fulton superior court —Judge Bell. November 6, 1917.</p> <p>The City of Atlanta advertised for bids for the paving of a portion of Peachtree street. A part of the advertisement calling for bids was as follows: “Each propqsal shall contain the full name of every person, firm, or corporation interested in the same, and the address of the person, firm, or president and secretary of the corporation bidding, and shall be accompanied by a certified check upon a national bank, drawn to the order of the City of Atlanta, in the sum of one thousand $1,000.00) dollars, which shall be forfeited to the city as liquidated damages in the event the bidder fails to sign the contract and furnish the required bond within .the prescribed time. The bidder to whom the contract may be awarded shall attend at the office of the mayor, with the sureties offered 'by him (or them), within ten days (Sundays excepted), after the date of the notification by the chief of construction of the acceptance of his or their proposal, and there sign the contract, in triplicate, and furnish the required bond for the work. In ease of failure to'do so, he or they will be considered as having abandoned the same, and the certified cheek accompanying the proposal shall be forfeited to the city.”</p> <p>The bid of the Gulf Paving Company was accepted, and the .company was notified by the city and requested to give bond and sign the contract, as provided above. The' company refused to give the bond, alleging that the city had no legal right to contract for this paving, because, “after having consulted counsel, it was advised that the City of Atlanta could not legally enter into such contract, and it so informed the chief of construction by communication addressed to the chief of construction of the City of Atlanta, dated September 6th, 1916, demanding at the same time the return to it of its original bid and of its deposit of one thousand dollars.” On refusal of the paving company to give bond and sign the contract, the city had the deposited check cashed, and the amount thus received was turned into its treasury. Thereupon the Gulf( Paving Company brought suit against the city. The plaintiff alleged that it had made a formal and timely demand in writing on the city for the return of its check, and that the city refused to comply. Paragraph 16 of the petition is as follows: “That, under the constitution and laws of this State, a municipality may not lawfully enter into a contract whereby it is required to pay a sum of money or become indebted in any sum of money for any purpose whatsoever, unless there is, at the time of incurring the liability, a sufficient fund in the treasury of the municipality which may be lawfully used to pay the liability incurred, or a sufficient sum of money to discharge 'the liability can be raised by taxation during the current year; and, as heretofore set out, at the time the City of Atlanta invited bids for the paving of Peachtree street between Fifteenth street and the city limits, and at the time your petitioner filed its bid, to wit, July 31st, 1916, and deposited the sum of one thousand dollars in accordance with the invitation therefor,.and at the time it was proposed by the city to enter into a contract with it in accordance with such bid, the city conld not lawfully make such contract; for that it did not have a sufficient sum of money in the treasury, at any of the times named, to be lawfully used for the payment of the liability which would be incurred in the making of this contract, nor could it raise a sufficient sum by taxation during the current year to discharge the liability, because of the facts as hereinbefore set out.” Attached to and made a part of the petition is a copy of the'ordinance of the city, in which the paving was estimated to cost .$97,-054.20. Of this amount $46,835.20 was to be raised from assessments against property owners, $26,801.40 from assessments against the Georgia Railway & Power Company, and'the balance ($23,-417.60) the city expected to receive from the County of Fulton.</p> <p>A general demurrer to the petition was sustained, and the case dismissed, and thé Gulf Paving Company excepted.</p>

<p>1. The petition alleged that notice of claim for damages was given to the defendant municipal corporation. The defendant being chargeable with knowledge of the service upon it of this notice, and its answer to this allegation of the petition being evasive, the answer will be treated as an admission that the notice was given as alleged.</p> <p>2. The charge of the court excepted to being erroneous, the subsequent statement of ‘the court, giving the correct rule without retracting the previous incorrect instruction, did not cure the error, and a new trial necessarily results from the erroneous charge.</p>

<p>The question as to the title to the property levied upon was one of fact for the jury, who returned a verdict in favor of the claimant. The verdict was authorized by the evidence and approved by the trial judge, and this court will not interfere.</p>

<p>Motion to set aside judgment; from Fayette superior court-judge Searcy. November 3, 1917.</p>

<p>Claim; from city court of Albany—Judge Clayton Jones. .June 22, 1917. ’</p>

<p>The court did not err in directing a verdict for the city, or in thereafter refusing to grant' a new trial.</p>

<p>Action for damages; from city court of Thomasville—Judge W. H. Hammond. July 19, 1917.</p>

<p>Action for damages; from city court of Greenville—Judge Rev-ill. July 19, 1917. *</p>

<p>Action of trespass; from Bryan superior court—Judge Sheppard. July 9, 1917.</p>

<p>Where land is bargained by the tract, a deficiency in feet can not be apportioned unless the purchaser can show that the transaction was tainted with actual fraud of the seller.</p>

<p>Complaint; from city court of LaGrange—Judge Harwell. July 7, 1917.</p>

<p>Complaint; from city court of Floyd county—-Judge Nunnally. September 7, 1917.</p>

<p>Action of trespass; from Decatur superior court—Judge Harrell. August 25, 1917.</p>

<p>Certiorari; from 'Whitfield superior court—Judge Tarver. September 8, 1917.</p>

<p>1. Without the approval of the ordinary, a contract entered'into by one as guardian of the property of his ward to pay another for the maintenance and education of the ward can not support a judgment binding the corpus of the ward’s estate. ,,</p> <p>2. Where it is admitted that there was no such order, and where the evidence fails to show that there were at any time any profits of such estate in the hands of the guardian, a verdict and judgment against all the property of the ward’s estate is illegal and can not stand.</p> <p>3. In a suit against one as guardian of the property of his ward’s estate, ' it is not error for the trial judge to strike a plea setting off a liability to the guardian individually.</p> <p>4. In such a suit, where a plea sets off a note showing on its face that it is an individual liability of the plaintiff to the guardian, but alleges that the amount represented by the note was money of the ward, and that it was loaned as such, it is not error to exclude evidence proffered to support the plea; nor is it error to refuse to admit the note in evidence, upon objection that there was no authority on the part of the guardian to make the loan of the ward’s money.</p>

<p>1. Presumptively, the transferee of a note given for a- sum payable on. a named May but providing that it might be paid in stated monthly installments beginning on that day, some of which extended beyond the time of the transfer and none of which appeared to be in arrears at that time, acquired it without notice of failure of consideration. . Consequently it was not error to exclude testimony by which the maker sought to establish that defense "as against the transferee.</p> <p>2. “A corporation is not to be charged with notice of facts of- which its president acquires knowledge while dealing in his private capacity and in his own behalf with third persons; nor is knowledge on his part thus acquired imputable to the corporation when, acting through another official, it deals with him at arm’s length as with any other individual representing himself alone.” The alleged knowledge of the president of the transferee corporation therefore could not be imputed to the corporation itself in this case.</p> <p>3. The trial judge did not err in excluding the evidence relative to a failure of consideration, and in thereafter directing a verdict for the plaintiff as a bona fide -purchaser for value and without notice.</p>

<p>Action for damages; from city court of Atlanta—Judge Eeid. September 8, 1917.</p>

<p>Action for damages; from city court of Atlanta—Judge Eeid. September 8, 1917.</p>

<p>Complaint; from Forsyth superior court—Judge Morris. September 17, 1917.</p> <p>Usury was included in the note sued on, which contained a waiver of homestead, and this was pleaded, with other defenses, by accommodation indorsers, who alleged that at the time the note was given they were ignorant of the usury, and therefore they were not liable thereon. The note was given to the plaintiff bank on December 12, 1911, for a loan; the sum received by the borrower was $1,750, and the principal sum named in the note was $1,960, and was payable December 12, 1912, with interest from maturity. It was testified that the indorsers were not informed as to the sum received from the bank, or as to the rate of interest charged in this transaction, and did not know that there was usury in the note. There was evidence, however, that it was usual for the bank to charge more than the lawful rate of interest on loans, and that this' had been done by it in previous transactions with these indorsers. It appeared also that the loan was obtained to pay money due to one of the indorsers, and that the bank’s check for the $1,750 was given to him. The verdict was against the defendants. It was contended in the brief of counsel for the plaintiffs in error that the burden'was on the plaintiff to show that the indorsers knew of the usury, and the evidence was not sufficient to show such knowledge; and on this point they cited: Bank of Omega v. Ford, 20 Oa. App. 496; Prather v.- Smith, 101 Qa. 283; Denton v. Butler, 99 Qa. 264. On the part of the bank it was contended that, it appearing thgt the indorsers knew of the custom of the bank to charge usury, they had reasonable ground to suspect usury in this transaction, and therefore the jury were authorized to find that they were not ignorant of it. .In support of this contention counsel cited: J ones v. 'Pope, 7 Qa. App. 539; Gay v. Qay, 8 Qa. App. 804; Sugart v. Mays, 554 (3). A former decision in this case is reported in 146 Qa. 51.</p>

<p>Certiorari; from Fulton superior court—Judge Bell. October 31, 1917.</p>

<p>Certiorari; from Fulton superior court—Judge Pendleton. November 23, 1917. ' ■ ■</p>

<p>Action for damages; from city court of Atlanta—Judge Reid. November 24, 1917.</p>

<p>Trover; from Whitfield superior court—Judge Wright presiding. November 10, 1917. ' ,</p>

<p>Attachment and claim; from Meriwether superior court—Judge Terrell. January 15, 1918.</p>

<p>Appeal; from Laurens superior court—Judge Kent. November 24, 1917.</p>

<p>1. “The general rule of law declaring the duty of a master in regard to furnishing a servant a safe place to work is usually applied to a permanent place, or one which is quasi permanent. It does not apply to such places as are' constantly shifting and being transformed as a direct, result of the servant’s labor, and where the work in its progress necessarily changes the character for safety of the place in’which it is performed, as it progresses.”</p> <p>2. A servant assumes the ordinary risks of his employment, and is bound to exercise skill and diligence to protect himself.</p> <p>3. The trial court did not err in dimissing the petition on demurrer.</p>

<p>Action upon bond; from city court of Hinesville—Judge W. C. Hodges. January 23, 1918.</p>

Action on bond; from city court of Thomasville—Judge W. H. Hammond. June 28, 1917. The petition alleges: (1) The defendant, Bryant H. Wright, is indebted to petitioners in the principal sum of $5,316.66, with interest thereon, upon a certain supersedeas bond.

<p>Complaint; from Murray superior court—Judge Tarver. November 3, 1917.</p>

<p>Complaint; from Richmond superior court—Judge H. C. Hammond. July 14, 1917.</p>

<p>Action for damages; from city court of Tifton—Judge Price. July 16, 1917.</p>

<p>Action for damages: from city court of Milieu—Judge Dekle. July 14, 1917.</p>

<p>Action for-breach, of contract; from city court of Albany—Judge Clayton Jones. June 24, 1917.</p> <p>The Georgia Cotton Company sued E. E. Arthur, alleging, that he contracted in writing to deliver to it, on or before October 31, 1916, at any -warehouse in Albany, Georgia, 100 bales of cotton of the average weight of 500 pounds, the company .agreeing to pay him 12 cents per pound, basis good middling; and that on October 25, 1916, he notified the plaintiff of his intention not to comply with the contract, and of his election to rescind .it. The suit was for the difference between the contract price and the market price of the cotton at the time and place specified therein, and amounted to $3,250. The defendant, by his answer, admitted a prima facie case, and assumed the burden of proof. Iiis plea was to the effect that the contract sued on was void for fraud; that he was a customer of the Albany Warehouse Company, and, shortly before the execution of the contract, had requested its representative, J. P. Champion, to sell for him 100 bales of his cotton, and to obtain for the cotton at least 12 cents a pound, and more if possible; that he was assured by the said Champion a few days later that he could only get 12. cents, and he thereupon signed the contract sued on; that the plaintiff, “in collusion with the said Jim Champion, fraudulently agreed,' unknown to this defendant, to pay 12% cents per pound for said cotton, and to pay the % cent on the side to Jim Champion, as a representative of the Albany Warehouse Company,” thereby defrauding the defendant, without his knowledge, out of that amount. By amendment he alleged in substance that Champion acted as agent for both him and the plaintiff, and that on account of this dual agency the contract was void. J. S. Billingslea, vice-president of the Georgia Cotton Company, and Champion testified to the effect that Billingslea agreed that if Champion would guarantee the performance of the contract, the Georgia Cotton Company would pay to him one eighth of a cent a pound in consideration of the guaranty, and that the cotton company entered into a contract with Champion to this effect. It appears, from the evidence, that Billingslea said nothing to Champion as to not telling the defendant about the guaranty, but the defendant was not informed in regard to it. No evidence was submitted by the plaintiff. The jury found a verdict in favor of the plaintiff for the amount sued for. The defendant made a motion for a new trial, on the usual general grounds, and on the ground that the court charged the jury that an agent has the legal right to guarantee the contract of his principal, without also charging them that such can not be the case if he is making a profit thereby, unless it be done with the principal’s knowledge and consent.</p>

<p>.Complaint; from city court of Blakely—Judge Sheffield. August 20, 19Í7. •</p>

<p>Where a jsuit brought in a justice’s' court in the name of, “Bremen Foundry & Machine Works” as plaintiff did not disclose, whether this was the name of a 'corporation, or of a partnership,' or was a name used 'to designate an individual, and the defendant, without objection to the form of the action, filed a plea, setting up a contract and other transactions with the plaintiff, confessed judgment, and entered an appeal to a -jury in the superior court, and on the hearing in the latter court, after the ease had been pending. there for several terms, filed a demurrer and moved to dismiss the case, on the ground that there was “no proper party plaintiff,” that “Bremen Foundry & Machine Works is neither a corporation, a partnership, nor an individual,” it was error to sustain the demurrer and dismiss the case.</p>

<p>Action for damages; from Whitfield superior court—Judge Tar- ■ ver. July 27, 1917.</p> <p>William and Lou Smith originally instituted an action against the Southern Railway Company and the Western & Atlantic Railroad Company for the homicide of their minor son, alleged to be eighteen years of age (in the present' case alleged to be seventeen years of age), who had never married, and upon whose estate there was no administration. The action was brought under the' Civil Code (1910), § 2782 et seq. The deceased was employed by the Southern Railway Company. The Western & Atlantic Railroad Company was made a joint defendant upon the theory that its negligence concurred in causing the decedent’s death. The defendants filed demurrers, which were overruled, and the ease was taken to the Supreme Court, and it was decided that, the case having been brought under the State “employer’s liability act,” the action was demurrable at the instance of each of the defendants, for misjoinder of parties defendant, and at the instance of the Western & Atlantic Railroad Company for misjoinder of parties plaintiff. It was also held in that case that as to the Western & Atlantic Railroad Company the facts alleged did not make out a ease of negligence sufficient to support an action, and a general demurrer should have been sustained. The allegations of the petition appear in that decision. See Western & Atlantic B. ■Go. 'v. Smith, 144 Qa. 737 (87 S. E. 1082). The plaintiffs then dismissed the Western & Atlantic Railroad Company from that suit, and, Lou Smith,' one of the plaintiffs, having died, William Smith s was appointed her administrator, and by amendment was made a party as such, and the case then proceeded to trial against the Southern Railway Company. The verdict was for the defendant, and was sustained by'this court in the case of Smith v. Southern Bailway Go., 20 Ga: App.. 609 (93 S. E. 166). William Smith then instituted the present suit against the Western & Atlantic Railroad Company to recover the value of, his deceased minor son’s services. The allegations of'negligence against the defendant in the petition in this case are substantially the same as those made against it in the petition filed in the case against both -this defendant and the Southern Railway Company, except that the following additional allegations were made: “Petitioner further show;s that said defendant Western & Atlantic R.’ Co. engineer and fireman [were ?] operating said train on a straight track where petitioner’s son could easily have been seen by the engineer and fireman upon said engine for the distance of 300 yards, and that said employees did see your petitioner’s son and could have in the exercise of ordinary care have stopped said train and so cheeked the same as to prevent the killing of your petitioner’s son.” “Said defendant was further negligent in that its engineer and fireman operating said train and engine that killed petitioner’s son could see that a northbound freight was passing and could see petitioner’s said son and could see the danger and peril that he was in at the time and’ could in the exercise of ordinary- care and diligence have blown the whistle and checked said train .and by said warning and checking could have saved the life of petitioner’s said son Walter Smith, but while seeing his position of peril and seeing and knowing that 'he was not looking towards said engine, negligently failed and refused to give any warning or check .the train or do anything to1 prevent the death of said Walter Smith, petitioner’s said minor son.” -</p> <p>Upon the trial of the case, after the plaintiff and the defendant had introduced their evidence, the court directed a verdict for the defendant; to which the plaintiff excepted.</p>

<p>Complaint; from city court of Valdosta—Judge Cranford. January 18, 1918.</p>

<p>Certiorari; from Berrien superior court—Judge Thomas. September 19,1917.</p>

Certiorari; from Forsyth superior court—Judge Morris. February 20, 1918. • The petition for certiorari states that upon the hearing of the ease, the court, “after examining a number of witnesses on each side,” passed an order, set out in’the petition; with which judgment the petitioner is dissatisfied, and “he alleges that the same is error and contrary to law, and that the sáme is contrary to evidence and the principles of justice and equity, and that when the evidence…

<p>Complaint; from Walker superior court—Judge Wright. May .14,1917.</p>

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

<p>Action for breach of contract; from Dougherty superior court— Judge Harrell. November 30, 1917.</p>

<p>1. The giving of a replevy bond does not convert a foreclosure proceeding into mesne process. It requires a counter-affidavit to do this; and in this case, there being no such affidavit filed at the proper time, the court did not err, on motion of the plaintiff’s counsel, in entering up judgment on the bond, against the defendant and his sureties.</p> <p>2. Until such counter-affidavit is made and filed with the proper officer and at the proper time, there is no suit or case to return for trial; and therefore in this case there was nothing to submit to a jury. ■</p>

<p>While it has been held that a judgment is not a technical estoppel as to any matter which it was not necessary to determine before the judgment could be rendered (Hunter y. Davis, 19 'Ga. 413; Bradley v. Briggs, 55 Ga. 354; Henderson v. Fox, 80 Ga. 479 (1), 6 S. E. 164), still, where the pleadings include an' issue which might or might not be taken as having been determined by the -verdict and judgment, one setting up the judgment by way of estoppel may show by extrinsic evidence that the issue thus included by the pleadings was then in fact actually litigated, and therefore was determined by the judgment. Johnson v. Lovelace, 61 'Ga. 62; Draper v. Medlock, 122 Ga. 234, 50 S. E. 113, 69 L. R. A. 483, 2 Ann. Gas. 650) ; Halliday v. Bank of Stewart County, 128 Ga. 639, 649 (58 S. E. 169) ; Harris v. Neil, 144 Ga. 519 (87 S. E. 661.) Where a plea of estoppel by a former judg- ( ment is ent.ered, and the record of the previous case shows that the issue at present involved was included among the issues made by-the pleadings in the former case, and thus might have been determined by the former verdict and judgment, and that evidence upon that particular issue was in fact submitted and a contest made thereon at the former trial, the issue must be taken as having been previously litigated, and a general judgment in the former suit becomes a bar by estoppel to a subsequent contest upon the same issue.</p>

<p>Certiorari; from Fayette superior court—Judge Searcy. . September 19, 1917.</p>

<p>1. There was evidence to authorize the verdict.</p> <p>2. Evidence that a large number of passengers were in the car, and that in consequence the back platform was more crowded than the front platform, was admissible in behalf of the plaintiff, since it. was a circumstance tending to explain why he attempted to board the front end of the car instead of the rear end, which the defendant contended would have come to a full stop by the time it reached him.</p> <p>3. There was no error in the failure to instruct the jury that the plaintiff would not be entitled to recover if by the exercise of ordinary care he could have avoided the consequences of the defendant’s negligence; since the charge of the court expressly confined his right of recovery to the alleged sudden and unnecessary increase of speed and jerk of the car he was attempting to board, and it is apparent that the consequences of this negligence could not have been avoided by the plaintiff by the exercise of such care after the negligence became existent and operative.</p>

Complaint; from city court of Camilla—Judge Bush. July 5, 1917. Sale. City Gin & Manufacturing Company brought suit against B. H. Dukes and A. T. Jones on a promissory note, alleging that there was a balance due thereon of $334.95, besides interest and attoriiey’s fees. The defendants in their answer denied indebtedness in the sum alleged, and denied that “any legal notice sufficient to bind them for attorney’s fees” had been given to either of them.

Complaint; from Bibb superior court—Judge Mathews. July-24, 1917. ‘ ■ Wesleyan Female College sued Mrs. Jelks on a promissory note for $8,300 and interest, payable to the plaintiff and secured by her deed to certain realty. In her answer she denied indebtedness on the note.

<p>Action for breach of contract; fróm city court of Athens—Judge West. May 8, 1917.</p> <p>The plaintiffs made two contracts for the sale and delivery of cotton to 4he White City Manufacturing Company,—one dated February 23, 1914, for 100 bale's of a fixed grade, of which 63 bales were accepted and paid for by the defendant, and the other for 200 bales of another grade, of which 97 bales were accepted and paid for. The suit was based on the separate breach of each contract, and the amount of the damages laid in each instance was the alleged difference between the contract price of the refused portion of the cotton and the sum realized from its sale as made by the plaintiffs for the defendant’s account. The defendant moved in' writing to dismiss the action, on the ground that the petition showed that the contracts lacked mutuality and did not in any way purport to bind the plaintiffs. This motion was overruled. In answer to the suit the defendant pleaded that the grade and charaeter of the cotton tendered by the plaintiffs in fulfillment of their own obligations under each of the alleged contracts wholly failed to meet the requirements therein, and that the defendant was for that reason authorized to reject the cotton so tendered., The jury found in favor of the defendant. The plaintiffs except to the refusal to grant their motion for a new trial; and the defendant, by cross-bill of exceptions, complains of the overruling of its motion to dismiss the petition. J</p>

<p>Trover; from Tift superior court—Judge Eve. December 5, 1917.</p>

<p>Eviction; fr.om Taylor superior court—Judge Howard. August 24, 1917. '</p>

<p>Action for damages; from city court of Floyd county—Judge Nunnally. March 18, 1918.</p>

<p>Appeal; from Terrell superior court—Judge Worrill. July 7, 1917.</p> <p>J. E. Waller, a resident of Terrell county, died in August, 1915, intestate, and was at that time indebted to Dawson National Bank on a promissory note for $300, dated April 6 and due November 1 of the same year. In 1917, there being no administration on the decedent’s estate, the bank, as a creditor, applied tb' the ordinary of the county for letters of administration, the applicant alleging that the decedent left an estate of real and personal property of the probable value of $10,000. A caveat was filed by the decedent’s widow and his son, J. E. Waller, who alleged that the decedent left no estate that required administration, that the widow was entitled to a year’s support, and the entire estate left by the decedent was not as much as $500, in fact was of less value than $100. The trial of the case in the superior court, on appeal from the court of ordinary,, resulted in a verdict in favor of the bank. The caveators made a motion for a new trial, which was refused, and they excepted.</p> <p>1. The first special ground of the motion for a new trial is that the court erred in allowing the plaintiff to introduce in evidence, over the objection of- the caveators, a certified copy of a petition filed September 9, 1915, by J. E. Waller Jr., asking that he be appointed administrator on J. E. Waller’s e'state; the caveators objecting on the ground that “it could not be legal evidence in the case whether anybody applied for letters of administration, in this particular matter.” In the application referred to in this ground it is stated that the estate of the decedent consists of realty of the value of $850.</p> <p>2. It is alleged that the court erred in allowing the plaintiff to introduce in evidence, over the objection of the caveators, “a fi. fa. in favor of a guano company against J. E. Waller, obtained in the city court of Dawson at the July term, 1915;” the objection being that “it had not been proven that the caveators knew anything about the suit, and did not show any notice to them.” This evidence was offered in rebuttal, and as a circumstance tending to show the purpose in recording deeds of Waller to his wife in July, 1915, and in returning the property in her name, instead of his .own name, for that year.</p> <p>3. The court charged the jury: ' “In passing upon the issues you may look to any admissions made by either of the caveators, . . and see if there is any conflict, or seeming conflict, with the contentions they make here.” It is contended that this was error, because it expressed an opinion that the caveators made admissions, and that the admissions were in conflict with their contentions on the trial, and because there was no evidence on which to base such an instruction.</p> <p>4. The court charged the jury: “If you believe, from the evidence, that J. E. Waller left an estate, or if you believe he had an estate before his death, and that he owed debts and he conveyed his property to his wife, to defeat his creditors, and that she holds the property now, arid if you believe her purpose in making this caveat—hers or the other defendant’s—was to prevent the administration, for the purpose of defeating the creditors in their' rights to reduce their debts to judgment and attempt to subject any property J. E. Waller may have owned at the time of his death or previous to the time of his death, or if you believe that he had fraudulently conveyed to Mrs. Rebecca E. Waller, so as to prevent administration and defeat the creditors, then you ought to find the issue against them.” It was contended that this was error, because it was not authorized by evidence, 'and because it did not limit the amount-of the estate, arid was not confined to that owned, at the time of the decedent’s death, or to creditors at the time of his death or to the creditors asking for administration. '</p> <p>5. From the evidence it appeared that at the time of the decedent’s death he and his wife were residing together on a farm, on which they had been living for many years. By two deeds dated in 1903 and recorded about a month before his death, one reciting a consideration of $600 and the other a consideration of $1,100, he conveyed to her 405 acres and 84 acres of land. This land was returned for taxes in her name in the year of his death, valued at $4,000, with household goods, mules, wagons, and other personal property valued at $695, but had up to that time been returned in his name, and not as her property. A witness for the plain till testified that about two weeks before the death of J. E. Waller he went to Waller’s house and made a levy ,on the land on which Waller was living; that Waller “was in possession of that property, . . some five or six hundred acres; . . the place was stocked, and there were ten or twelve plows running on the place; . . he had been in possession of that land all his life. Land in that settlement is worth anywhere from $25 to $50 per acre. . . J. E. Waller looked after the running of the place and the renting out of the land on the place. He rented it out. I have rented from him some.” The caveators testified that the decedent had no property at the time of his death, that at the time of his death and for a number of years preceding it, as well as since that time, Mrs. Waller was in possession of the land in question, controlling it arid renting out a part of it, and during that time his deeds to her, conveying the land, were in her possession. She testified th,at át the time of the execution of the deeds she paid for the land with her own money that she had been saving; she could not tell exactly where she got it. An application by her for a year’s support out of the estate of J. E. Waller was introduced in evidence by the plaintiff.</p>

<p>Complaint; from Berrien superior court—Judge Thomas. August 11, 1917.</p> <p>Keystone Type Foundry (a corporation) sued A. C. Sweat, alleging: (paragraph 2) that the defendant is indebted to the plaintiff in the sum of $447.20 principal, and $142.26 interest, representing balance due on 18 promissory notes, 12 of which are each for $39.20 principal, and 6 for $67.90 principal, and a protested cheek for $49.74 and $1.50 protest fee, copies of which are attached to the petition; and (paragraph 3) that this indebtedness “accrued under and by virtue of a certain lease contract entered into between Keystone Type Foundry and A. C. Sweat under date of the 22nd day of March, 1912, by the terms of which petitioner herein leased to A. C. Sweat . . certain property described in éaid lease for the term of 24 months from the date of said lease, at the rent or hire of $1,682.35 for the use of said property, payable as follows, namely: cash $456.32, and the balance in install-’ ments payable at the office of A. C. Sweat, Nashville, Ga., as follows: 24 monthly'installments of ten notes for $67.90 each, and thirteen notes for $39.20 each, and one note for $37.43, and said lease distinctly providing that -no 'title to said property should pass by said lease, but that upon the faithful performance of all covenants and conditions of said lease, then the lessee should have (but not otherwise) the right to purchase said property upon the prompt payment to the lessor of the sum of $1.00; a complete copy of which lease is hereto attached, made a part of this paragraph and petition,” etc. It is alleged that the indebtedness described is past due, and the defendant refuses to pay it; and the petition concludes as follows: “Wherefore your petitioner brings its suit for the purpose of foreclosing its special, lien upon said property described in said lease, and obtaining a general judgment against all the property of defendant/ and to that end prays process,” etc.</p> <p>The defendant demurred to the petition, on the grounds: (1) that the petition alleges, in the second paragraph, that the indebtedness is a balance due on promissory notes, and in the third paragraph alleges that the defendant is indebted by reason of a lease contract; and it is impossible to tell whether the suit is on the notes or on the contract, and the plaintiff should be required to elect on which it will proceed; and (2) in the prayer of the petition the foreclosure of a special lien is asked; “this prayer should be'stricken and denied for the reason that there are. no allegations which entitle the plaintiff to a foreclosure of a lien, because the plaintiff should be required to elect whether it is suing On the notes or suing on the contract, or foreclosing a purchase-money lien.” The.demurrer was overruled.</p> <p>In the defendant’s answer he denied the material allegations of the petition, and he pleaded failure of consideration and sought to. recoup damages. The verdict was as follows: “Wé, the jury, find in favor of plaintiff for $245.00 principal and $105.00 interest, also $49.70 principal, $1.50'protest fees, and 7% on check, also judgment in favor of said lien.” The grounds of the amendment to the motion for a new trial were in substance as follows:</p> <p>I.. There is no evidence that a demand was made on the defendant for the balance due under the lease contract, and that he refused to pay.</p> <p>2. The suit to foreclose the lien was not brought in 12 months after maturity of the last installment of indebtedness, and therefore the plaintiff was not entitled to foreclose its special lien.</p> <p>3. “Movant contends that it was harmful error for the court to exclude the following motions and overrule each and every one o’f them.” Counsel for the defendant moved that the court direct a verdict for the defendant, because, although the suit was for an amount less than the amount of the notes introduced in evidence, which, according to the plaintiff’s pleading, were paid except the amount sued for, no credits were entered on the notes and it was not shown on which notes the indebtedness was due. Counsel for the defendant insisted that the plaintiff elect the notes on which the indebtedness was claimed. The court ruled that in the absence of direction, the payment should go on the first notes, and stated that the jury would be instructed accordingly.</p> <p>4. The evidence did not authorize the item of $49.74 and protest fees thereon.</p> <p>5. The court erred in charging the jury as follows: “You will find in favor of the plaintiffs and against the defendant for the amount sued.for, and that the lien be foreclosed as prayed, unless you believe from the evidence in the case that the defendant has established, and by the evidence established, that there was a defect in the articles sold and failure of consideration as .pleaded by the defendant.”</p> <p>6. The court erred in charging as follows: “If you find in favor of the plaintiffs the total amount sued for upon the notes, the form of your verdict would be: 'We, the jury, find in favor of the plaintiffs, for so many dollars and cents principal, and so many dollars and cents interest on the notes sued upon; and then you will say by your verdict that you find that the plaintiffs have a special lien as prayed. So your verdict will be either, 'We, the jury, find in favor of the plaintiffs’ so many dollars and cents principal, and so many dollars and cents interest on the notes sued for, or, 'We, the jury, find in favor of the plaintiffs’, so many dollars and cents principal, and so many dollars and cents interest on thenotes sued for, ‘and the plaintiffs have a special lien as prayed; ’ in any event they would have that, if you find in'favor of the plaintiffs.” It is contended that this was error because, if the suit was based on the notes, the plaintiff was not entitled to more than a common-law judgment, and would not have the fight to foreclose á special lien in this manner of procedure. N</p> <p>7. The'verdict was error, for reasons set out.</p> <p>8. The court erred in not instructing the jury that the burden was on the plaintiff to satisfy them, by a preponderance of testimony, as to'the amounts paid by the defendant, and the notes upon which the credits should be placed, thus giving them a method by which they could ascertain the amount, if any, due by the defendant to the plaintiff. , . ^ ■</p>

<p>Action for damages; from Fulton superior court—Judge Pen-' dleton. October 16, 1917:</p>

Action, for 'breach of contract; from Wilkes superior court— Judge Walker. November 7, 1917. - Pappa-sued Pope for breach of a contract to exchange land. From the petition it appears that on August 3, 1916, the plaintiff and the defendant made a written contract for the exchange of certain town lots and farm lands.

<p>Mortgage foreclosure; from city court of Hall county—Judge Wheeler. October 22, 1917.</p>

■ Action for damages; from Whitfield superior court—Judge Tarver. November 17, 1918. Carl Puryear sued the Dalton Fruit & Produce Company for damages in the sum of $200 on account of the death of a mule that he had rented to the defendant. He alleged that the defendant failed to exercise due diligence in the care of the mule, and caused its death by overfeeding.

<p>Action-for damages; from city court of Hall county—Judge Wheeler. November 8, 1917.</p>

<p>Action for damages; from city court of Sylvester—Judge Monk. March 5, 1918. ' ,</p>

<p>Action upon guaranty; from Jasper superior court—Judge Park. May 5, 1917.</p>

<p>Complaint; from city court of Columbus—Judge Tigner. September 26, 1917.</p>

<p>Certiorari; from Biehmond superior court—Judge H. C. Hammond. September 15, 1917.</p>

<p>Complaint; from city court of Atheps—Judge West. March 9, 1918.</p>

<p>Certiorari; from Fulton superior court—Judge Bell. April 8, 1918.</p>

<p>Certiorari; from Fulton superior court—Judge Bell. April 19, 1918.</p>

<p>1. On the trial of a suit against a hank, an agent of the plaintiff is not competent to testify in behalf of the plaintiff as to transactions or communications solely with a deceased cashier of the bank.</p> <p>2. To authorize a recovery because of a local custom alleged to be a part of the contract on which the suit is based, it must appear that both parties knew of and contracted with special reference to that custom.</p>

<p>Complaint; from city court of Sparta—Judge Moore. November 8, 1917.</p>

<p>Action on insurance policy; from Wilkes superior court—Judge Walker. May 9, 1917.</p>

<p>Eviction; from Lumpkin superior court—Judge J. B. Jones. October 18, 1916.</p> <p>1. The motion to which'the decision refers in paragraph 1 is a motion to strike the ease from the docket of the Court of Appeal?, on the ground that, "the case not having been disposed of at the first or second term after the writ of error was received by the Supreme Court,” from which it was transferred to the Court of Appeals, "it stands affirmed under the constitution;” citing art. 6, sec. 2, par. 6 (Civil Code of 1910, § 6503); amendment creating Court of Appeals (§ 6506); amendment changing jurisdiction of these courts (Park’s Ann. Code, Supp. 1917, §§ 6502, 6506); Arnold v. Water Power and Mining Co., 147 Ga. 91; AtIcins Nat. BanJc v. Harmon, 19 Ga. App. 657; Barnhart v. Atlanta & West Point R. Co., 133 Ga. 59. The bill of exceptions was filed* in the Supreme Court on October 31, 1916, and the case was argued there during the October term (on January 15, 1917); and, by a decision rendered at the March term, 1917, that court decided that it had no jurisdiction of the ease, and that the Court of Appeals had jurisdiction; and the case was accordingly transferred to the Court of Appeals (147 Ga. 91). In-this motion it was contended that the Supreme Court lost jurisdiction and the Court of Appeals acquired jurisdiction of the case immediately on the ratification of the amendment to the constitution, changing the jurisdiction of these courts.</p> <p>2. The nature of the defense referred to in paragraph 2 of the decision is indicated in the report of this case in 147 Ga. 91. The plaintiff demurred orally to an amendment to the defendaiit’s counter-affidavit, in which this defense was set up; and by cross-bill of exceptions the plaintiff assigned error on the overruling of the demurrer.</p> <p>3. The court directed a verdict finding the issue in favor of the plaintiff, and finding $909.98 as rent; to which defendant excepted.'</p> <p>(Certiorari to review this decision was granted by the Supreme Court.)</p>

<p>1. The entry of dismissal, as made on the docket by the' trial judge, not having been challenged by a direct proceeding for the purpose of vacating it, must be taken as conclusive proof of dismissal of the suit to which it refers. a</p> <p>2. A subsequent suit for the same cause of action could not be maintained without payment of costs of the dismissed suit, or without ah affidavit in forma pauperis in lieu thereof, before commencing the second suit.</p>

<p>Action for breach of contract; from Jackson superior court— A. C. Wheeler, judge pro hac vice. September 1, 1917.</p> <p>J. C. Shields sued W. A. and J. Z. Carter as warehousemen; alleging: that in March, 1914, he stored with defendants 58 bales of cotton; that at the time the cotton was stored, it was agreed between the plaintiff and the defendants that defendants would charge him twenty-five cents a hale per month to store and insure the same, and that it was expressly agreed hy the defendants that the cotton should be stored and insured, and be kept fully insured by the defendants for its full value; that on or about May 23, 1914, the warehouse of the defendants and the plaintiff’s cotton stored therein were entirely destroyed hy fire; that after the fire it developed that the cotton, was never insured hy the defendants as they undertook to do; that the cotton at the time it was destroyed was worth $3,993.78; and the plaintiff sued for this amount, alleging that his loss occurred by'virtue of the defendants’ failure to comply with their contract. The plaintiff alleged also a breach of the warehousemen’s duty of ordinary diligence, but by an amendment to the petition, expressly waived the tort, and relied solely upon the breach of the alleged contract. The defendants denied that there was any such contract as alleged hy plaintiff, and in their answer set up that the cotton was brought to the warehouse by the plaintiff, with the understanding simply that he was to pile it up in the warehouse, and he was afterwards to decide whether or hot he would have it weighed and insured; that in the event he decided to have the cotton weighed and insured, he was to so' notify defendants, who would then issue to him a warehouse receipt or certificate for the cotton after it was,, weighed, showing that it was insured; that the cotton was placed in the warehouse • in accordance with this understanding; that it was never weighed by the ■ defendants, nor did they agree to insure ij¡, because they were not requested to do so; that the plaintiff never paid nor agreed to pay them anything for storing the cotton, nor did he ever ask or instruct them to weigh and insure the same. One of the grounds of the motion for a new trial is to the effect that the court erred in admitting in evidence, over the plaintiff’s objection, the warehouse books of defendant, purporting to be a record of all cotton stored'and insured by defendant, and which did not include a record of the cotton involved in the suit; the objection made being that this hook was merely a self-serving declaration of defendant, made in his own interest, and was for this reason inadmissible.</p>

<p>Action for damages; from Fulton superior court—Judge Bell. September 15, 1917'.</p>

<p>Garnishment; from Colquitt superior court—Judge Thomas. November 24,1917.</p>

<p>Complaint; from Columbia superior court—Judge H. C. Hammon. December 14, 1917.</p>

<p>1. The court did not err in any of its rulings as complained of in the first amendment to the motion for a new trial.</p> <p>(a) Remarks made by the trial judge in a colloquy with counsel, which counsel contend were of such a character as to prejudice the .minds of the juiy, should be excepted to at the time, and can not, after verdict, be made the basis o"f a ground of a motion for new trial.</p> <p>2. All who deal with a corporation as such are estopped from denying its corporate existence.</p> <p>(a) The execution of the note sued on was sufficiently proved, to render it admissible in evidence.</p> <p>3. “The transferee of a negotiable paper who receives it before it is due can not be affected by any agreement or understanding between other parties to the paper, unless notice of such’agreement or understanding is brought home to the transferee.” t</p> <p>4. Under the rulings made when this ease was before the Supreme Court (144 Ga. 233 (4)), the trial judge did not err in ruling out “a certified copy of certain proceedings before the railroad commission and the decision of the railroad commission thereon.”</p> <p>5. “The mere fact that there are conflicts in the testimony does not render the direction of a verdict in favor of a party erroneous, when it appears that the conflicts are immaterial, and that, giving to the opposite party the benefit of the most favorable view of the evidence as a whole and of all legitimate inferences therefrom, the verdict against him is demanded. ”</p>

<p>Complaint; from Milton superior court—Judge Pendleton presiding. October 13, 1917.</p>

<p>Action for damages; from city court of Atlanta—Judge Reid, October 20, 1917.</p>

<p>1. In the construction of a contract, a clause written upon its face, inconsistent with one printed upon the back, will generally be accepted as expressing the intention of the parties, rather than the inconsistent clause printed upon the back.</p> <p>2. In construing a contract it is proper, in order to arrive at the intention of the parties, to consider the correspondence between them leading up to and consummating the contract.</p> <p>3. The true construction of the contract in this case is that the time of shipment of the flour is limited to the months of November and December, and that as to this provision time is of the essence of the contract. The plaintiff, not having ordered out the flour within the time specified in the contract, had no right of action for breach of contract against the defendant for failure to deliver the remainder of the flour.</p>

<p>Action for damages; from Tift superior court—Judge Eve. November 1, 1917..</p>

<p>Action for damages; from Baldwin superior court—-Judge Park. July 12, 1917.</p>

<p>Certiorari; from Pike superior court—Judge Searcy. July 19, 1917.</p>

<p>Action upon bond; from city court of Swainsboro—Judge Kirkland. August 28, 1917.</p>

<p>Writ of error; from Worth superior court.</p> <p>The bill of exceptions in this case recites that “in the case of E. M. Johnson v. Sam Earkas, Jonas McKelvin, and L. M. Potts, sheriff, returnable to the April term, 1914, of the superior court of Worth county, being a rule to distribute funds, on November 21st, 1917, the same was called for trial; and it being agreed by counsel that the judge of the superior court should sit as a court and a jury, he proceeded with the trial.” The evidence adduced upon the trial and the judgment of the court are then set out. It appears from the record that Sam Earkas died before the hearing took place in the lower court. The judgment to which exception' is taken is as follows: “By agreement of counsel and all parties, the court, sitting as a jury, after hearing the evidence, awards the entire funds to the defendant,-; and it is adjudged that the ex-sheriff, L. A. Potts, deliver said funds to the defendant, executor of the estate of Sam Earkas.” The defendant in error named in the bill of exceptions is “Estate of Sam Earkas.” Service of the bill of exceptions was acknowledged by attorneys signing as “Attorneys for estate of Sam Earkas, defendant in error.” Passmore & Forehand, for plaintiff.</p>

<p>The trial judge properly sustained the demurrer to the petition.</p> <p>(a) No breach of any material condition of the policy is sufficiently alleged.</p> <p>(b) Where a contract of life insurance is void ab initio, the insured, upon proper pleadings, would have the right to recover all the premiums paid ■ thereon.</p> <p>(c Where the risk has once attached under a policy, and there has been Íno fraud, a recovery of all the premiums paid can not be had because of a breach of some provision of the contract.</p>

<p>Indictment for assault with intent to murder; from Fulton superior court—Judge Hill. March 2, 1918.</p>

<p>Indictment for larceny; from Fulton superior court—Judge Hill. March 25,■ 1918. .</p>

<p>Indictment for burglary; from Burke superior court—Judge Hammond. March 21, 1918.</p> <p>Gus and John Reynolds were convicted of burglary, under an indictment which charged them jointly with having broken and entered the barn of „J. H. Brinson and stolen 15 bushels of corn. Brinson testified, that when 'he got to his farm about nine or'ten o’clock in the morning he was informed that an old store on the farm, in which he had stored corn and other things, and which had been nailed up, was broken into and corn taken out; and on investigation he found that two planks had been prized off the rear of the building and ten or twelve bushels of corn taken out; that he and a negro, Tom. Gray, “tracked the parties that did the stealing,” and “could see where they came out from the road to the barn in a jersey wagon and poured the corn "out in a basket;” that there was a light rain just before day, and the wagon and the mule with it were tracked to the house of Gus Reynolds, and from that house to his son John’s corn crib. Shucks and ears of corn were found at different places in the road. The tracks were lost in deep sand in front of a house on the route, where pigs and chickens had been running in the road, but it was testified that the tracks were “picked up again in about 50 yards.” A part of the road was a rural delivery route. Brinson testified: “Some one could have come along this road, but not the same jersey wagon and that same mule; , . there was no other 'jersey wagon like this negro had. I did not take the wagon out and put it in the track.” On arrival at Gus Reynolds’s house Brinson told him of the loss of the corn, and asked if he "knew, anything about it. Brinson testified, that Gus answered that, he had no corn, but he (Brinson) found where the wagon had been driven to the window of a shed-room of Gus’s house, and saw -shucks on the ground there, and found four or five bushels of corn on the floor of the house; and Gus then said that he got this corn from' Mr. Harry Barefield, and had forgotten about it; that, he (Brinson) thereupon went to Barefield’s house, and Barefield’s corn did not match this corn; that he then went back to Gus’s house to find where the wagon went, and he tracked it across a field and into the road and to the house of John Beynolds, and saw a jersey wagon, with several ears of corn in it, under the shelter of John’s barn, and found four or five bushels of corn in John’s crib; that he then went to John, who was in the field, plowing, and John at first denied that he had any corn, but, when asked about the corn in the crib, said he had got it from Mr. Harry Barefield before day that morning; the witness then went to Barefield, and Barefield said he had not let John have any corn that year. Barefield also testified that he did ndt sell John any corn. It was testified that the corn at Gus’s house and John’s house “compared with” Brinson’s corn. There was conflict as to whether the corn at Bare-field’s house looked like Brinson’s corn. The testimony of Tom Gray was substantially in accord with that of Brinson. Barefield testified that when Brinson came to his house and asked about the corn, he told Brinson that Gus Beynolds had, come to, him for corn, and he told Gus to weigh it up, and Gus took seven bushels. Gus Beynolds made a statement to the jury, in which he said that the corn found at his house by Brinson was a part of seven bushels bought by him from Barefield several days before, and that he (Gus) let his son John have four bushels of that corn on the morning on which Brinson claimed to have lost the corn.</p>

<p>Petition, for certiorari; from Butts superior court—Judge Searcy. February term, 1918.</p>

<p>The allegations of the petition clearly showing that the negligence charged against the defendant was not the main, controlling, preponderating, or proximate cause of the injury, the court erred in not sustaining the demurrer and dismissing the petition.</p> <p>(a) “A plaintiff can not recover on other acts of the defendant which, while set forth in the petition, are not therein alleged as negligence.”</p>

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

<p>Complaint; from city court of Atlanta—Judge Eeid. October 4, 1917. (Certiorari to review this decision was granted by the Supreme Court.)</p> <p>Upon a promissory note of Charles. C. Jones and Mrs. Ola E. Jones to Claude E. Buchanan, indorsed by the payee, suit against the makers and the indorser was brought by Mrs. Theo. C. Owens, as executrix of Frank 0. Owens and individually. The note (as appeared from a recital therein), was given for a part of the purchase-price of a house and lot known as No. 14 Mechanic street, in the city of Atlanta. The case came to the Court of Appeals on exceptions of the defendants to the. striking of their pleas and the direction of a verdict against them.</p> <p>In the pleadings referred to in division 2 of the decision, the makers of the note set up different defenses. One of these (which will be more fully set out) is that the consideration of the note was immoral and illegal. .Others were as followsOn October 21, 1913„ these defendants transferred to Archibald Smith the bond for title by which Buchanan undertook to convey to them, on payment of the purchase-money, the property for which the note was given, Smith assuming payment of the note, and the time of payment having been extended from maturity (July 12, 1913) to March 10, 1914, by the payment of interest, to the latter date. Subsequently (June 10, 1914) Smith executed and delivered to the plaintiff a deed to certain other land to secure the payment of the note sued on, in 'which deed it was recited that payment of the note was assumed by Smith, “upon divers considerations him thereunto moving;” and by the terms of the deed the time of payment was extended and the note made to stand for payment in-installments, with interest at the rate of 8 per cent., instead of 6 per. cent, as provided in the note. Smith failed to pay as agreed, and the plaintiff brought suit against him and obtained judgment for the amount of the note with interest, and the property described in the security deed was levied on and sold to the plaintiff for $1,000, which was applied on the fi. fa. It is'alleged, that the execution of the security deed, the extension of the time of payment, and the increase in the rate of interest were without the consent of the defendants, and constituted a novation, so as to change the person to "whom the note was due, and the defendants were thereby discharged from liability on the note. It is further alleged, that at the time of this extension the market value of the property for which the note was given was $5,000, but at the time of the bringing of this suit the market value had decreased to about $2,000; and the act of the plaintiff in accepting the security deed and extending the time of payment increased the risk of the defendants, and they were thereby discharged from liability. It is alleged that the plaintiff, in the manner hereinbefore set forth and for a consideration, was guilty of negligence in the prosecution 'of her legal remedies against these defendants, and they .were thereby discharged from liability.</p> <p>As to illegality of consideration it is alleged: The note sued on is illegal and void, for its consideration was immoral, in that it was. given to said» Buchanan for the purchase-money of a house built, leased, and rented by him as a house of prostitution, and purchased' by these defendants for the purpose of conducting therein a house of prostitution, and these defendants did thereafter conduct therein a house of prostitution. These defendants informed said Buchanan of the purpose of their purchasing said house,—to carry on therein acts of prostitution,—and he had full knowledge thereof when said note was executed, and acquiesced and agreed thereto; and Frank C. Owens purchased the note from Buchanan with knowledge of .these facts; he knew that the house was in a restricted district of the city, in which only houses of prostitution were conducted, and that it was capable of no other use, and that the said Charles C. Jones and Mrs. Ola E. Jones intended at the,time of purchasing it that it was to be used for no other purpose. The price they were to pay for the property, to wit, $19,000, was greatly in excess of its real value for any lawful purpose. At the time of the delivery of the note the said Frank C. Owens became invested with title to the property in question by warranty deed from said Buchanan to him, and the legal title to it has been at all times in said Owens.</p> <p>Buchanan filed pleas similar to those of the other defendants, besides the defense referred, to in division 3 of the decision.</p>

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

<p>In a suit in trover brought under the present short form (which contains no ad damnum clause in the conclusion of the declaration), where the plaintiff elects to take a money verdict for the highest proved value of ■ the property between the date ‘ of the conversion and the date of .the trial, the recovery can not exceed the value alleged in the petition, without an amendment covering the excess.</p>

<p>Action upon insurance policy; from Wilkes, superior court— Judge Walker. May 9, 1917.</p> <p>C. D. Bolton, administrator of Batnum Ñ. Ford, brought suit against- the Mutual Life Insurance Company of New York upon a life-insurance policy for $1,000, issued by the defendant upon the life of Batnum N. Ford on April 10, 1914, and made payable -to the executors, administrators, or assigns of the insured. In the application the insured made the following agreement: “This.application is made to the Mutual Life Insurance Company of New York. All the following statements and answers and all those that I make to the company’s medical examiner in continuation of this application are true, and are offered to the company as an inducement to issue the proposed policy. . . • The proposed policy shall not take effect unless and until the first premium shall have been paid during my continuance in good health, and unless also the policy shall have been delivered to and received by me during my continuance .in good health.” A copy of the application, with the statements made by the insured in answer to questions by the medical examiner, was attached to the policy. Among these questions and answers were the following:</p> <p>“17. What illnesses, diseases, injuries, or surgical operations have you had since childhood.</p> <p>Name of disease, etc. Number of attacks. Date of each. Duration.</p> <p>Pneumonia, 1 1878. 3 weeks.</p> <p>Jaundice, 1 1908. 3 months.</p> <p>Severity. Results. Date of complete recovery.</p> <p>Mild. ' Good. 4 weeks.</p> <p>Light. Good. 6 months.</p> <p>18. State every physician or practitioner who has prescribed for or treated you, or whom you have consulted in the past five years. Name of physician or practitioner. Address. When consulted.</p> <p>L. J. Pharr.. Newborn. Some 2 years.</p> <p>Nature of complaint. Give full details under Q. 17.</p> <p>Bilious.</p> <p>19. Have you stated in answer to question 17 all illnesses, diseases, injuries, or surgical operations which you have had since childhood? (Ans. Yes or No.) Yes.</p> <p>20. Have you stated in answer to question 18 every physician and practitioner consulted during the past five years and dates of consultation? (Ans. Yes or No.) Yes.</p> <p>21. Are you in good health? Yes."</p> <p>At the close of the questions propounded by the examiner and the answers of the insured the following appears: “I certify that each and all of the foregoing statements and answers were read by me and are fully and correctly recorded by the medical examiner. (Signed) Batnum Napoleon Ford. Witness: J. C. Smith, M. D."</p> <p>The insured died June 21, 1915, and proofs of'death were presented by the plaintiff. The defense rested upon two grounds'; first, that the policy never took effect, because it was never- delivered to and received by the insured duririg his continuance "in good health; and second, that the above-quoted representations of fact made by the insured in his application to induce acceptance of the risk were, as to matters material to the risk, untrue, and that for this reason the policy was void. Hpon the trial of the' case the, plaintiff introduced in evidence the policy, with the application attached thereto, proofs of death, and closed. The defendant then introduced as a witness Dr. P. Wilson, a practicing physician, who testified that he had examined applicants for life-insurance for several insurance companies, including the defendant-; that he had known B. N. Ford since 1905, and had, part of the time between 1912 and 1914, boarded in the same house with him, and saw him every day; that he as a physician had treated Ford; that the first time was for jaundice, in 1908, and that the duration of that attack was from five to six months; that following that the insured had enlargement of the liver, accompanied with the usual digestive ^disturbances and nervous troubles; that when he first treated him in 1908 the insured weighed 260 pounds, and that, beginning with the attack of Jaundice which lasted five or six months, his weight decreased gradually, for eighteen to twenty months, to 180 pounds, and that his weight remained between 180 and 190 pounds through 1910 and 1911; that in the latter part of 1912 he had occasion to take the in'sured’s blood pressure, and found it decidedly above normal, and that from then on until September, 1914, the insured continued with an excessively high blood pressure, with an enlarged liver, and a tolerably bad condition or a hardening condition of the arteries, called arterial sclerosis; that in the same way you describe stiffening of the arteries, it would be the same way with the tissues in the valves of the heart; that he couldn’t say Ford was in good health at any time between 1908 and 1914, when he saw him. The witness further testified that the proofs of death state that the insured died suddenly, and in one place it is stated with disease of the heart, and of apoplexy; that the condition of health in which he found the insured could be connected up with the cause of death. This witness further testified: “From my, experience as an examiner of risks or applicants for life insurance, I will say that I think that the conditions that I have; described in connection with this application and this applicant are material to the risk that the company was trying to secure; it is material to' the issuing of the policy.” He further testified that he advised the insured as to his condition, and told him what was the matter with him; that he couldn’t say he explained it to him as fully as he had on the witness stand, but that he told the insured enough to let him know his condition generally, and that he put him on a diet. Defendant also introduced Mrs. H. C. Pitts, who testified: that the insured boarded with her from April 1, 1913, to September 6, 1914, and that she saw him every day; that he was on a diet while staying there; that Dr."Wilson treated him; that the insured appeared to be in feeble health, and was rather nervous; that he would talk to her about his physical condition, and would say he didn’t feel well. The plaintiff then introduced Dr. E. W. Ragsdale, who testified that he had known the insured for fifteen years immediately preceding his death; that most of the time he seemed to be in good health, but that for some three or four years previous to his death, the insured’s health was not good; that he would see him occasionally, and he seemed to be somewhat emaciated and thin. He further testified that he saw the insured a few minute's after his death, and that in his opinion he died from valvular disease of the-heart. The brief of evidence shows that the physician who examined the insured was dead. The' plaintiff introduced evidence as to the good character of the deceased. The jury returned a verdict for the plaintiff. The defendant made a motion for a new trial on the general grounds only, which was overruled by the trial judge, and the defendant excepted.</p>

<p>Action for damages; from Ben Hill superior court—Judge Crum. August 18, 191-7. ' •</p>

<p>Affidavit of illegality of execution; from Crisp superior court— Judge Crum. July 24, 1917.</p> <p>The ordinary of Crisp county issued an execution against the estate of Ran Harris, deceased, in the hands of R. D. Mims, administrator, and also against R. D. Mims, to be-levied in the first instance on the goods and chattels of the said Ran Harris, deceased, if to be found, and if not to be found, then on the personal goods etc. of the said R. D. Mims. The execution recited that it was issued on a judgment recovered by Emma Harris on the 5th day of February, 1912, in the court of ordinary of Crisp county upon her application for a year’s support as the widow of said Ran Harris. The execution was dated June 2, 1915. It was levied on certain personal property of R. D. Mims. Mims filed an affidavit of illegality, in which he alleged that the-fi. fa. was proceeding illegally for certain reasons therein stated, one of which (paragraph -4) was that “on the day and at the time the said fi. fa. issued, the plaintiff in fi. fa., to wit, Emma Harris,' was dead,- and that no administrator had been appointed to take charge of her estate and made a party to the proceeding that-it is alleged that the fi. fa. issued from.” The sheriff made affidavit that he had made diligent search for other property belonging to the estate of Ran Harris, deceased, and failed to find any, and that his failure to make a formal entry of nulla bona on the fi. fa. was an oversight. After this affidavit had been made, the court permitted the sheriff to make a nulla bona entry on the fi. fa. The plaintiff interposed a general demurrer ore tenus to the affidavit of illegality. The court sustained the demurrer and’ dismissed the affidavit of illegality, and to this judgment exception was taken.</p>

<p>. 1. The allegations make a suit for the entire damage, to the land from the alleged tortious acts of the railway company.</p> <p>2. “When, by reason of a trespass thereon, realty has been so injured as to'render it permanently useless and valueless to-the owner, the damages thus occasioned are recoverable in a single action.”</p> <p>3. The petition in this ease being for permanent injury to the land, and not having been filed until August, 1914, and the last of the alleged acts of trespass having been committed in 1909, the action was barred by the statute of limitations.</p> <p>4. “A vendee of land upon which a trespass had been committed while it was the property of his vendor has no right of action against the trespasser for damages thus occasioned, which were recoverable by thé vendor.”</p> <p>5. The court erred in allowing the amendment to the petition.</p> <p>6. There was no error in dismissing the petition as amended.</p>

<p>Certiorari; from Putnam superior court—Judge Park. October 26, 1917.</p> <p>The Seneca Company Incorporated brought suit upon an account for $16.56, in a justice’s court against S. M. Schell, doing business under the name of Phoenix Supply Company. The justice rendered, judgment in favoi of the defendant. The plaintiff obtained certiorari, which the judge of the superior court overruled on the hearing; and the plaintiff excepted. The errors complained of in the petition for certiorari are: that the judgment is contrary to law and without evidence to support.it; contrary to the evidence; that “the court erred in refusing to allow the original contract or order given by Phcenix Supply Company to the Seneca Company for the purchase of the said goods to be introduced in evidence, said contract or order being set out in full'in par. 8 of this petition; as the said contract or order was the best evidence to be had by the court in the trial of the case;” and that “the court erred in allowing the testimony of S. M. Schell and S. E. Maddox to be introduced over the objection of plaintiff.”</p> <p>It was insisted by counsel for the defendant that, as the amount involved was under $50, and as appeal and not certiorari was the remedy, the judgment of the judge of the superior court in overruling the certiorari was correct.</p>

Action for breach of contract; from city court of Blakely— Judge Sheffield. October 2, 1917. The Twin City Lumber Company brought suit against J. B. Daniels, alleging in part that “On July 21, 1916, the defendant was, as he still is, the owner of a sawmill and a valuable tract of valuable pine timber in said county, located near Rowena, a small station on the line of the Georgia, Florida & Alabama Railway.

Action for damages; Horn city court of Hall county—Judge Wheeler. November 8, 1917. The second division of the decision relates to the following ground of the motion for a new trial: “Because the court charged the jury as follows: ‘ As before charged you, the question of notice to the municipal corporation is one for you to determine from the evidence. In that connection I charge you this: that notice to a police officer would not, as a matter of law, be notice to the city.

<p>Action for damages; from city court of Columbus—Judge Tigner. November 12, 1917.</p>

<p>Action for damages; from Early superior court—Judge Worrill. October 2, 1917.</p> <p>The petition as amended alleges, that the defendant 'has damaged the plaintiff in the sum of $50, by reason-of the following facts: “That on or about the ninth day of June, .1915, the defendant, by negligence of its servants, in and by the running and operating of its cars, engines, and other machinery, carelessly threw or otherwise set out fire from an engine on defendant’s railroad in said county and set fire to the grass and fence on plaintiff’s lands; which fire destroyed a considerable portion of plaintiff’s fence and damaged him in the above-named amount.” “Wherefore plaintiff prays judgment against defendant in the sum of $50, and. that process do issue,” etc. The grounds of the demurrer are: that no cause of action is stated; that “it is not alleged how much fence was destroyed, and the value of the fence alleged to have been destroyed is not alleged;” that “it is not alleged what the acts of negligence complained of consisted of;” and thát “the date on which the plaintiff claims that he was damaged is not alleged” (no date was given in the original petition).</p>

<p>Certiorari; from-Fulton superior court—Judge Pendleton. June 6, 1917.</p>

<p>Where no authority for a private sale of property of a testator’s estate was conferred by the will, a contract privately made in behalf of the executors, by one of them, for a sale of land of the estate, providing that title should be perfected, was contrary to public policy; and an action for breach of the contract was not maintainable. v</p>

<p>Action for damages;'from Bibb superior court—Judge Mathews. June 23, 1917.</p>

<p>Action for breach of contract; from Colquitt superior court-judge Thomas. October 30, 1917. ' ■</p> <p>L. Y. Stallings brought suit by attachment against the DeBardeleben Coal Company. The suit was for damages for failure of the defendant to ship 500 tons of Sipsey coal to the plaintiff according to the terms of a contract between them, dated April 12, 1916. The plaintiff, by amendment, alleged that he ordered 50 tons of coal on October 13, 1916, and 50 tons on October 18, 1916, and that on December 27, 1916, he ordered 200 tons to be shipped in January, 1917, and 200 tons to be shipped in February, 1917; all of which orders .the defendant failed and refused to fill, stating to him that it refused to ship any coal at all to him, and renounced and repudiated the contract. The defendant answered, admitting the contract as alleged, and pleaded certain provisions of the contract, which, so far as material, are stated in the following opinion. It pleaded the failure of the plaintiff to place any orders for coal with the defendant until October 15, and that it then received orders from its contract .customers for all of the Sipsey coal that could be mined and marketed prior to December 15. Further, that floods curtailed the output of the mines and that the shortage of cars prevented shipments from being made. Further, that it never declined or refused to ship to the plaintiff coal in conformity with the terms of the contract, but, on the contrary, that it agreed repeatedly to comply with the contract and to furnish to the plaintiff coal in such amounts as it was able to supply under a pro-rata division of available supply with other obligations, etc. After introduction of evidence by the plaintiff the court, on motion of the defendant, granted a nonsuit. The plaintiff made a motion to vacate the judgment of nonsuit and to reinstate the'case. The judge overruled the motion, and the plaintiff'excepted.</p>

<p>Action upon bond; from Richmond superior court—Judge IT. C. Hammond. August 8, 1916.</p>

<p>Affidavit of illegality of execution; from Glynn superior court— Judge Highsmith. .February 13, 1917.</p>

<p>Action upon bond; from city court of Nashville—Judge Christian. September 11, 1917.</p>

<p>Conviction of manslaughter; from Toombs superior court-.Judge Hardeman. October 4, 1917.</p>

<p>Illegality of execution; from Fulton superior court—Judge Bell. April 10, 1916.'</p>

<p>Action for damages; from city court'of Savannah—Judge Free^ man. February 14, 1917.</p>

<p>Trover; from city court of Albany—Judge Clayton Jones. December 1, 1917.</p>

<p>Under § 1066 of the Pqnal Code (J910), an accusation charging that the accused made “an attempt to steal” certain property, and not alleging, some overt act done toward the commission of the attempt, is lacking in definiteness and is insufficient.</p>

<p>Motion for new trial; from city court of Floyd county—Judge Nunnally. February 11, 1918.</p>

<p>Conviction of manslaughter; from Bibb superior court—Judge Mathews. February 22, 1918.</p>

<p>Conviction of manslaughter; from Jasper superior court—Judge Park. February 33, 1918.</p>

<p>Accusation of violation of prohibition law.; from city court of Macon—Judge Guerry. March 21, 1918.</p>

<p>Conviction of assault; from city court of Dublin—Judge Flynt. 'March 25, 1918.</p>

<p>Accusation of misdemeanor; from city court of Floyd county— Judge Nunnally. April 15, 1918.</p>

<p>The evidence authorized a finding that the taking of the seed from the store by the accused was done privately,. and that he was guilty of larceny from the house.</p>

<p>Indictment for burglary; from Dawson superior court—-Judge Jones. May 8, 1918.</p>

<p>Indictment for manufacturing intoxicating liquor; from Heard superior court—Judge Searcy presiding. April 20, 1918.</p>

<p>Indictment for shooting at another; from Laurens superior court —Judge Kent. May 7, 1918.</p>

<p>Certiorari; from Jones superior court—Judge Park. April 30, 1918. '</p>

Accusation of misdemeanor; from city court of Eastman--Judge Griffin. March 2, 1918.

<p>Accusation of unlawful possession of liquor; from city court of Columbus—-Judge Tigner. May 11, 1918.</p>

<p>1. The law of voluntary manslaughter may properly be given in charge to the jury on the trial of one indicted for murder, where, from the evidence or from the defendant’s statement at the trial, there is anything deducible which would tend to show that he was guilty of voluntary manslaughter, or which would be sufficient to raise a doubt as to which of these grades of homicide was committed.</p> <p>2. The instruction that “a witness may be impeached by disproving the facts testified to by him” was not reversible error for the reason assigned,—that this method of impeachment was not attempted as to any of the witnesses.</p> <p>3. In giving in charge to the jury provisions of the code-section as to impeachment of a witness by proof of contradictory statements (Penal Code of 1910, § 1052; Civil Code, § 5881)-, it-was not error to omit the part of that section which relates to sustaining the witness by proof of general -good character. There was no such evidence of general good character of a witness thus attacked as would require an instruction as to sustaining a witness by such proof.</p> <p>4. When the entire charge of the court is considered, a new trial is not required on any ground assigned in the exceptions to excerpts from the charge.</p> <p>5. As to the defendant’s statements to another person in regard to the homicide, made near the body of the man he had killed, which the court excluded on the ground that they were self-serving declarations, and which it was contended were admissible as a part of the res gestie of the homicide, the ground of the motion for a new trial relating to their exclusion is incomplete, in not showing how near to the time of the homicide they were made. It should appear from the ground itself that they were “so nearly connected [with the homicide] in time as -to be free from all suspicion of device or afterthought.” Penal Code, § 1024.</p> <p>6. There was evidence sufficient to support the verdict.</p>

<p>. Indictment for assault with intent to murder; from Taliaferro superior court—Judge Walker. May 37,1918.</p>

<p>Indictment for assault with intent to rape—conviction of assault; from Bibb superior court—Judge Mathews. Mdy 31, 1918.</p>

<p>Certiorari; from Fulton superior court—Judge Bell. April 12, 1918.</p>

<p>Conviction of manslaughter; from Early superior court—Judge Highsmith, presiding.</p>

<p>Conviction of sale of liquor; from city court of Hazlehurst— Judge Knox. April 10, 1918.</p>

<p>Indictment for murder—conviction of manslaughter; from Habersham superior court—Judge J. B. Jones. March 15, 1918.</p>

<p>Indictment for misdemeanor; from Ben Hill superior .court— Judge Crum. March 30, 1918.</p>

<p>Accusation of misdemeanor; from city court of Blackshear— Judge Mitchell. April 19, 1918.</p>

<p>Indictment for burglary; from Eulton superior court—Judge Hill. May 25, 1918.</p>

<p>Accusation of violating prohibition law; from city court of Bichmond county—Judge Black. March 25, 1918.</p>

<p>Accusation of violation of prohibition law; from city court of Richmond county—Judge Black. March 18, 1918.</p>

<p>Indictment for sale of liquor; from Whitfield superior court-judge Tarver. April 10, 1918.</p>

<p>Accusation of unlawful possession of liquor; from city court of Nashville—Judge Christian. April 8, 1918. .</p>

<p>Indictment for possessing intoxicating liquor; from Whitfield superior court—Judge Tarver. April 10, 1918.</p>

<p>“A party who has been tried and convicted by a court not having jurisdiction of the offense can not plead prior jeopardy if subsequently indicted for the same offense in a court having jurisdiction thereof.”</p>

<p>Indictment for unlawful fishing; from Liberty superior court— Judge Sheppard. March 30, 1918.</p>

<p>1. As to the alleged dying declaration, the exceptions are without merit.</p> <p>2. The charge of the court on voluntary manslaughter was authorized by evidence.</p> <p>3. The instructions consisting of provisions of the code as to criminal intent could not have -harmed the accused;</p> <p>4. The omission of instructions on a theory presented only by the defendant’s statement at the trial, where there is, no written request for such instructions-, is not cause for a new trial.</p> <p>5.. The verdict is supported by evidence.</p>

<p>Accusation of unlawful possession of liquor; from city court of Savannah—Judge Kourke. April 20, 19Í8.</p>

<p>Accusation of larceny; from city court of Macon—Judge G-uerry. May 23, 1918.</p>

<p>Action for damages; from DeKalb superior court—Judge Smith December ¿,1917'.</p>

Complaint; from Early superior court—Judge Worrill. January 5, 1918.

<p>Certiorari; from Monroe superior court—-Judge Searcy. 'December 11, 1917.</p>

<p>1. The evidence demanded a verdict for the defendant, and the court did not err in directing the verdict.</p> <p>2. The legal title to'bank stock purchased by and issued to W., “guardian,” was prima facie in him individually, and on his death descended to his personal representative; and his successor in the trust had no right, under the facts of this case, to recover from the bank money paid for the stock.</p> <p>3. In an action at law brought in behalf of wards against a bank to recover money alleged to have been paid from funds of the wards 'by their deceased guardian for stock issued to Mm by tlie bank^on Ms subscription and in Ms name as an individual, Ms declarations to others to the effect that the money invested in the stock belonged to his wards were not admissible against the defendant.</p> <p>4, Where both parties to a suit introduce evidence and the case as a whole turns upon a question of law which must be decided adversely to the plaintiff, it is not error for the trial judge to direct a verdict in favor of the defendant; and the plaintiff is not entitled to complain on the ground that the court should have awarded a nonsuit, instead of directing a verdict, where no motion for nonsuit or dismissal was made by the plaintiff'.</p>

<p>Action on insurance policy; from city court of Greenville—Judge Revill. December 7, 1917.</p>

<p>1. Dismissal of the writ of error is not required, because of incompleteness of the record transmitted to this court in this case.</p> <p>2. Where an answer to a summons of garnishment was, prematurely filed, and timely exception was taken on this ground in the justice’s court to which the summons was returnable, and the court sustained the exception and dismissed the answer, and no offer' to amend the answer or to file another answer was made until after several subsequent terms of the court had passed, and no reason was shown for this omission, it was not error to refuse to allow suchEan amendment or additional answer.</p>

<p>1. The question as to the value of an article is peculiarly for the jury. Jurors, are not absolutely bound to accept as correct the opinion or estimate of a witness as to the value of property, though uneontradieted by other testimony, but have the right to consider the nature of the property involved, together with any other fact or circumstance properly within their knowledge, throwing light upon the question, and they may by their verdict place a lower value upon the property than that stated in the opinions or estimates given in evidence.</p> <p>2. Since a new trial must be had, the general grounds of the motion for a new trial and those which amount to an amplification thereof need not now be passed upon.</p>

<p>Action on bond; from Floyd superior court—Judge Wright. January 15, 1918.</p>

<p>1. While a seller ordinarily can not convey a greater title than he himself 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 completed in form and duly signed, hut prior to its delivery is feloniously taken by the payee, and prior to. its maturity is indorsed and passed by such unlawful taker to a bona fide holder for value, the innocent purchaser is protected in his title and can recover 1 against the maker. Civil Code (1910), § 4286; Atlanta National Bank v. Bateman, 21 Ga. App. 624 (94'S. E. 853 ), and authorities there cited. See Garter v. Haralson, 146 Ga. 282 (91 S. E. 88).</p> <p>2. “The holder of a note is presumed to he such bona fide, and for value; if either fact is negatived by proof, the defendants’are let into all their defenses; such presumption is negatived by proof of any fraud in the procurement of the note.” Civil Code (1910), § 4288. Fraud in the procurement of the note, as here used, means fraud on the part of the holder thereof, and has no reference to the fraud in the contract out of which the note arose, or fraud of an intervening, indorser. “Any circumstances which, would place a prudent man upon his guard, in purchasing negotiable paper, shall be sufficient to constitute notice to a purchaser of such paper before it is due.” Civil Code (1910), § 4291.</p> <p>3. An apparent exception to the rule governing the legal presumption in 'favor of the holder of a negotiable note as set forth in the preceding headnote has been recognized and expressed as follows: “Possession alone of a security negotiable by delivery before due, is presumptive evidence of title thereto; but when such security is proven to have been stolen or otherwise appropriated in fraud of the rights of the owner, then the onus is upon the possessor to show that he took it bona Me and for value.”</p> <p>4. “A promissory note is negotiable by indorsement of the payee or holder, or, if payable to bearer, by transfer and delivery only.” Civil Code (.1910), § 4273.</p> <p>5. Thus, where a note is payable to a named person, .and after being indorsed by the payee is passed to a third person, such taker, by indorsement and not merely by delivery, would be protected by the general rule as to the presumption set up in his favor, and is not subject to the exception stated in the third headnote..</p>

<p>Action for damages; from Chatham superior court—Judge Meldrim. February 8, 1918.</p>

<p>Appeal; from Floyd superior court—Judge Wright. April 27, 1918.</p>

<p>Action on bond; from Jeff Davis' superior court—Jiidge High-smith. April 11, 1918.</p>

<p>Certiorari; from Berrien superior court—Judge Thomas. April 19, 1918. (See former decision, 21 Ga. App. 319.)</p>

<p>Appeal; from Floyd superior court—Judge Wright. April 27, 1918.</p>

<p>Action for damages; from city court of Savannah—Judge Ereeman. April 19, 1918.</p> <p>■ The special grounds of the motion for a new trial g,re: “1. Because the court, after reciting in detail the allegations of the plaintiff’s petition, and thereby bringing to the jury’s attention all the contentions of the plaintiff, failed to state the following contention of the defendant: that plaintiff’s horse could have easily gotten off of the railroad tracks between the time he saw the engine coming and the time he attempted to cross the' railroad trestle.” 2. The court refused to charge the jury as follows: “If you find that plaintiff’s horse could have easily gotten off of the railroad tracks between the time he saw the engine coming and the time he attempted to cross the trestle, there can be no recovery against the defendant.”</p>

<p>. Action-for damages; from Muscogee, superior court—Judge Howard. May 20, 1918.</p>

<p>Complaint; from Glascock superior court—Judge Walker. May 20, 1918.</p>

<p>Action for damages; from city court of Americus—Judge Harper. May 34, 1918.</p>

<p>Action on contract; from city court of Atlanta—Judge Reid. May 10,1918.,</p>

<p>Appeal; from- Crawford superior court—Judge Mathewsi ' October' 17, 1917.</p>

<p>Complaint; from city court of Houston county—Judge Riley. March 14, 1918.</p>

<p>Claim; from Echols superior court—Judge Thomas. October 13, 1917. '</p>

<p>The contract entered into by the plaintiff, whereby another was substituted as debtor in place of the sheriff, amounted in itself to an abrogation of the demand against the sheriff. The foundation of the rule absolute being the contempt of the court on the part of the sheriff by his failure to pbey its order, and it having been made to appear that the officer was not really liable, but had been thus relieved by l1’-' plaintiff from complying with the court’s order, there was no error in refusing to make the rule absolute.</p>

Trover; from Colquitt superior court—Judge Thomas. January 23, 1918. In this action the Studebaker Corporation of America sought to recover certain wagons which it had sold to the defendant and to which, the plaintiff contended, title was retained in it by the contract of sale. The trial judge directed a verdict in favor of the defendant, but granted a new trial, and the defendant excepted.

<p>Trover; from city court of Thomasville—Judge W. H. Hammond. January 16, 1918.</p>

<p>Trover; from Candler superior court—Judge Hardeman. January 1, 1918.</p>

Complaint; from Clarke superior court—Horace M. Holden, judge pro hac vice. January VI, 1918.

<p>Complaint; from city court of Sparta—Judge Johnson presiding. February 18, 1918.</p>

<p>Action for breach of contract; from Habersham superior court— Judge J. B. Jones. February 5, 1918.</p>

<p>Complaint; from Newton superior court—Judge Smith. January 7, 1918.</p>

<p>Complaint; from city court of Savannah—Judge Freeman. March 4, 1918. .</p>

<p>Complaint; from Banks superior court—Judge Cobb., January 26, 1918.</p> <p>The answer admitted the allegations of each paragraph of the petition except the 2d and the 3d. Paragraph 2, which alleged that the defendant was indebted to the plaintiif in stated sums on a promissory note, a copy of which was attached, was answered as follows; "Defendant denies paragraph 2 as to amount.” Paragraph 3, which alleged that the debt was past due, and that the defendant refused to pay it or any part of it, was answered as follows: “Defendant admits that he owes plaintiif some, but denies that he owes as much as plaintiff alleges.” The plaintiff demurred to these paragraphs' of the answer, and moved to strike them, on the grounds that they were too vague and were not sufficient to set up a defense; that the execution of the note sued on was thereby admitted, and an indebtedness was admitted; that the correct amount of indebtedness was not set out therein, and the answer was not sufficient as‘a,plea of payment. An amendment, setting up that the note was for a loan of a stated sum less than the amount of the note, and that a certain sum included in the note was usury, was offered at the trial term. The court refused to allow the amendment, and sustained the demurrer and struck the paragraphs of the answer set out above, and thereupon directed a verdict for the plaintiff; to all of which the defendant excepted.</p>

<p>Coniplaint; from city court of Brunswick—Judge Krauss. March 9, 1918.</p>

<p>Complaint; from city court of Savannah—Judge.Davis Freeman. March 4, 1918.</p> <p>In the original petition it is alleged, that the Mount Zion Baptist Church is an unincorporated religious organization under the governmgnt and control of a pastor and a board of trustees; that H. D. Butler is the pastor of said church, and William Black and others named are the trustees of said church, and that the said Mount Zion Baptist Church and the pastor and trustees thereof are indebted to petitioner in the sum of $500; that the said pastor and trustees are likewise indebted to petitioner in the sum of $500 individually, by reason of their being officers and members of said unincorporated religious organization and successors of the former pastor, officers, and trustees of said church. It is prayed, that the petitioner may recover judgment in the sum of $500 of the- said Mount Zion Baptist Church, an unincorporated religious organization, and of the said pastor and board of trustees as- officers and as individual members thereof. In the first count of the petition it is alleged, that said indebtedness arises by reason of a contract entered into .between petitioner and the former pastor and board of trustees representing said church (naming them), according to the terms of which petitioner was to prepare and deliver detailed plans and specifications for the improvement of the church building of the said Mount Zion Baptist Church; that his compensation for such services was to be 5 per cent, of the contract price of the building, and the contract price of the building was $10,000; that he has drawn the detailed plans and specifications of the' said church and delivered them to the pastor and board of trustees then acting for said church and representing it, and the said debt is due and payable, and no part of it has been paid. In the. second count it is alleged that the plans and specifications mentioned were prepared and delivered to the former pastor, trustees, and officers representing th.e church and duly authorized by the church, at their special instance and request, and that the reasonable value of the services rendered by him to the church and to the said officers, trustees, and individuals is $500.</p> <p>Ael amendment, filed after demurrer to the petition, strikes from the suit “the names of the various individuals, so that the suit shall proceed alone' against the Mount Zion Baptist Church, an unincorporated religious organization, and against the parties named as pastor and as trustees thereof;” and alleges that “the plans and specifications were delivered to the Mount Zion Baptist Church some time prior to April 28, 1912, and accepted by the church on that date or a few days prior to that time.” On May 18, 1917, the demurrer as amended was sustained in a judgment providing that “Plaintiff is allowed until June 1st, 1917, to amend to meet the demurrers; if not so amended by said date the case will stand dismissed.” On June 23, 1917, the court allowed .(“subject to objection and demurrer”) an amendment in which it is alleged: At the time plaintiff performed the service for which suit is brought, the Mount Zion Baptist Church owned a lot in the City of Savannah, described, and the said plans prepared by plaintiff and accepted by said church were for a building on this lot. Shortly after the plans were submitted the defendant church sold this lot for $6,000, and with the proceeds purchased a lot at Waldburg Street Lane and West Broad Street in the City of Savannah, on which there was a completely equipped church. The lien of plaintiff’s claim against said organization attached to the first lot and to the proceeds thereof, and follows' the same into the lot in which the proceeds were finally invested. The Mount Zion Baptist Church has entered of record in the clerk’s office of the superior court of Chatham county the name of the said religious organization, together with the names of its trustees and officers. Such entry appears on the record of the superior court of Chatham county, Georgia, in Book of Deeds, 8-B, 298. The property first above described was conveyed to such trustees and officers and to such church as an unincorporated religious body. Such entry appears in the deed, dated August 14, 1899, wherein J. Livingston Minis conveyed said lot to George Anderson and others named, as trustees of Mount Zion Baptist Church, an unincorporated religious body, and to their successors, with pówer to them to sell the property at private or public sale, without order of court and without advertisement, when authorized by the congregation of the church. The said deed was accepted by the church and recorded in the clerk’s office, and the land thereunder was sold and the proceeds reinvested-in the lot on Waldburg Street Lane. The Mount Zion Baptist Church again entered its name and the names' of its trustees and officers in said clerk’s office on January 25, 1913. Such entry appears in the deed dated January 17th, 1913, wherein two lots of land in Savannah (described), being the land on which now stands the church building occupied by the Mount Zion Baptist Church, were conveyed by the First Bryan Baptist Church, a corporation, to B. L. Lockley and others named, as trustees for the Mount Zion Baptist Church, for $9,500; the said entry reciting that by virtue of the sale of said property the Mount Zion Baptist Church went into possession thereof and has been in possession1 ever since, under said deed, and the defendant entered the same, containing the recitals mentioned, in the said clerk’s office. After this amendment to the petition the demurrer was xenewed orally; the court sustained the demurrer and dismissed the petition, and the plaintiff excepted.</p> <p>In the demurrer it was contended that no cause of action was set out against the defendants, and that there was a misjoinder of parties, in that the plaintiff undertook to join as defendants the Mount Zion Baptist Church, the defendants as individuals, and the defendants as pastor and trustees of the church. The allegations that the pastor and trustees were indebted were demurred to as not setting forth any good reason why they were indebted.</p> <p>In the brief of counsel for the plaintiff in error it was contended that “the record of the name, style, and objects of the association, as provided by section 2830 of the Civil Code (1910), does not make an unincorporated réligious organization a corporation in the true sense of the term, but merely makes it a legal entity capable of being sued and having 'the privileges of a corporation in specified particulars;” that the filing for record-in the clerk’s office of an instrument conveying property to the church, reciting the name of the organization, the names of its trustees and the' purposes of the organization and the trust, renders the organization subject to suit; that in'a suit against the trustees the trust property may be subjected to the payment of a debt for services' rendered for the improvement of the property; and that the suit, if erroneously brought, was amendable.</p>

<p>Complaint; from Wilkes superior court—Judge Walker. March 2, 1918.</p>

<p>Complaint; from city court of Tifton—Judge Price-. 'April 4. 1918. ■ A</p>

<p>Certiorari; from Habersham superior court—Judge J. B. Jones. March 15, 1918.</p>

<p>Distraint “ ’from city court of Eloyd county—Judge Nunnally. March 28, 1918.</p> <p>The distress warrant, after reciting that Katherine Benjamin has made affidavit that W. B. Elliott is justly indebted to J. 'B. Benjamin in a stated sum, directs a levy on the property of the defendant to make the said sum due to J. B. Benjamin, etc. The amendment is sworn to by Katherine Benjamin, and begins“And now comes Katherine Benjamin as agent for J. B. Benjamin in the above-stated matter, and amends the affidavit of foreclosure in the distress warrant,” etc. On objection by the defendant, on the ground tha,t it .made a new party plaintiff, the court refused to allow the amendment. The court then sustained a motion to dismiss the distress warrant, on the ground that it did not follow the affidavit, “in that the affidavit alleges that W. B. Elliott is indebted to Kate Benjamin, and the warrant issued in .the name of J. B. Benjamin.” J. B. Benjamin excepted to the refusal to allow the amendment, and to the dismissal of the distress warrant.</p>

<p>Levy and claim; fropi Talbot superior court—Judge Howard. March 6, 1918.</p>

<p>Where the pendency of a former suit ill the same court between the same parties for the same cause of action was pleaded in abatement of an action, and the record of such a suit was introduced in evidence, and there was no entry of dismissal of the suit, the court was not authorized to allow counsel for the plaintiff, over objection of the defendant, to make an entry nunc-pro tunc dismissing the former suit, as of a date prior to the filing of the second suit, although it was testified that before the filing of the second suit the plaintiff’s attorney, in vacation, paid the costs of the former suit and directed the clerk of the court to mark it dismissed.</p> <p>The court erred in directing a verdict against the plea in abatement.-</p>

<p>Trover; from city court of Americus—Judge Harper. April 15, 1918.</p>

<p>Action for damages; from city court of Atlanta—Judge Eeid. April 2, 1918.</p>

Complaint; from Fulton superior court—Judge Bell. April 3, 1918.

<p>'Complaint; from city court of Floyd county—Judge Nunnally. March 5, 1918..</p>

<p>No title to the lumber in question passed tinder 'the parol 'contract of purchase relied on by the plaintiff, and the action of trover was not maintainable.</p>

<p>Certiorari; from Bibb superior court—Judge Mathews. April 25, 1918.</p>

<p>Complaint; from city court of Atlanta—Judge Beid. April 16, 1918.</p>

<p>Certiorari; from Bartow superior court—Judge Tarver. April 16, 1918. .</p>

<p>Complaint; from Warren superior court—Judge Walker. May 30, 1918.</p>

<p>Certiorari; from 'Fulton superior court—Judge Pendleton. ■ May 34, 1918. ,</p>

<p>The jury were authorized to find that the presumption of negligence on the part of the railroad company, which arose on proof of the killing of the plaintiff’s cow by a train of the company, was not rebutted by the evidence introduced by the defendant. The testimony of the fireman of the locomotive authorized the inference'that he was' not exercising due care.</p>

<p>Where there. has been no actual delivery of personal property' and no agreement as to the price, but vendor and vendee agree to meet at some future day, when the vendee is to inspect the property and a price is to be agreed upon, the contract is executory, title to the property remains in the vendbr, and the property is subject to a judgment obtained against the vendor.</p>

<p>Complaint; from Colquitt superior court—Judge Thomas.: May 11, 1918. ' ■</p>

<p>Under the undisputed evidence in this ease the plaintiff entered the office building to see a tenant on business of her own, and was therefore a licensee only, and was not there by the invitation, express or implied, of the owner of the building.. The trial judge did not err in granting a nonsuit.</p>

<p>Complaint; from city court ;of Sandersville—Judge • Jordan. December 1, 1917,</p>

<p>Complaint; from Murray superior court—Judge Tarver. March 9, 1918. '</p>

<p>Certiorari; from Ifultou-superior court—Judge Bell. March 29, 1918.</p>

<p>1. Assignments of error on a judgment overruling a certiorari can not add other grounds of certiorari to those of the petition for certiorari.</p> <p>2. Whether there was such bad faith as would authorize the recovery of attorney’s fees on account of refusal to pay the amount claimed under the contract of insurance sued on, as provided, for in the Civil Code (1910), § 2549, was, under the facts of this case, a question for the jury. .That' they awarded such fees without also awarding damages of twenty-five per cent., or less, as provided for in that section of the code, is no ground for setting aside their finding as to the attorney’s fees.</p> <p>3. The evidence was sufficient to support the verdict.</p>

Trover; from city court of Savannah—Judge Freeman. December 6,1917. 1. On November 21, 1916, the Cable Piano Company brought trover against Mrs. Nellie Barbee for a piano. .

<p>Complaint; from Talbot superior court—Judge Howard. December 1, 1917.</p>

<p>Trover; from city court of Springfield—Judge Shearouse. September 6, 1917.</p>

<p>Complaint; from Banks superior court—Judge Cobb. February 2, 1918.</p>

<p>Under the Civil Code (1910), § 6288, a second affidavit of illegality is not maintainable if based on “causes which existed and were known, or in the exercise of reasonable diligence might have been known at the time of filing the first.” The court, therefore, did not err in directing a verdict against the affidavit of illegality in this ease.</p>

<p>■ Complaint; from city court of Savannah—Judge Freeman. March 4, 1918. . ' .</p> <p>The petition alleges that the Port Wentworth Lumber Company is indebted to the plaintiff in the sum of $125' on an account, a copy of which is attached to. the petition. The account consists of two items, dated November 28, 1916, as follows: “2 timber cars complete, $100; 125 feet of steel loading chain, $25.” The demurrer was on the following grounds: “ (1) The petition sets forth no cause of action and is insufficient in law. (2) The petition fails to show when, where, or through whom the alleged account was contracted on the part of the defendant. (3) The petition fails to show the terms or conditions of the alleged contract of sale, and fails to show when the alleged indebtedness was to be paid. (4) The petition fails to show whether the alleged sale was made orally or in writing.” (5) The petition shows no writing signed by or in behalf of the defendant, and, being an account for the sale of goods and merchandise to the amount of more than $50, the sale is unenforceable under 'the statute of frauds, there being no allegation that the defendant accepted and actually received the goods or a part thereof,'or gave something to bind the bargain or in part payment.</p>

<p>Appeal; from Liberty superior court—Judge Sheppard. February 19, 1918.</p> <p>A petition to the'ordinary, to require Davis Dubberly, as administrator of the estate of Mrs. Sarah J. Yarnedoe, to make a settlement with the heirs at law, was filed by the heirs in March, 1915. In his answer, made at the May term, the administrator admitted that he had not made returns as required by law, and he attached to the answer what was designated as “annual return of Davis Dubberly, administrator of estate of Mrs. Sarah J. Yarn'edoe.” This return shows that the administrator received $525 from the sale of land, and contains an itemized statement of “cash paid out,” but none of the items are dated, and no vouchers accompany them. The petitioners -filed objections to all of these items except two, amounting to $28. The ordinary “rendered his judgment thereunder .finding in favor of the objections and against said inventory made by said administrator.” The administrator appealed to the superior court. The judge of the superior court ruled that “the burden was upon the administrator to show that his return was true and correct,” the administrator refused to offer testimony in support of his return, and the judge directed a verdict for the amount that the administrator in his return admitted'he had received from the sale of land, less the two items conceded to be correct, and for interest from March 10,- 1906.' The administrator excepted to the rulings stated.</p>

<p>Affidavit of illegality; from Jenkins superior court—Judge Henry C. Hammond. March 12', 1918,</p>

<p>- Trover; from Baldwin superior court—Judge Park. February 12, 1918.</p>

Indictment for robbery; from Fulton superior court—-Judge Hill. April 8, 1918.

<p>Complaint; 'from .New’ton superior court—Judge Smith. March 21, Í918.</p>

<p>Distraint; from city court of Statesboro—Judge Proctor. February 28, 1918.</p>

<p>Indictment for larceny of an automobile; from Fulton superior court—Judge HilL April 27, 1918.</p>

<p>Eviction; from Tattnall superior court—Judge Sheppard. May 22, 1918.</p>

<p>Motion for discharge of prisoner; from city court of Oglethorpe —Judge Greer. July 25, 1918.</p> <p>The facts in the agreed statement were as follows:</p> <p>“ (1) There were pending three cases in city court of Oglethorpe against movant, and the same against five brothers, which last had not been arrested. Movant was convicted before Hon. Z. A. Little-john, presiding, and a jury, and defendant was sentenced for twelve months on the chain-gang, and after serving five months could be relieved upon the payment of a fine of' $200. A motion for new trial was-made and is now pending. (2) The movant importuned the solicitor, through counsel and friends, and conferences were had which ultimated in a promise from' the solicitor to recommend the disposition which is herein recited; which proposal was stated in open court by the solicitor. (3) All of the said defendants and three others came into court, and, after full, open, public recommendation of solicitor Jule Felton, said six defendants entered a plea of guilty in one case each, and fines were imposed; in one case each the costs were paid, aggregating $950 from said six named and three other, defendants, including costs and fines. A plea of guilty was entered by all six of said defendants, including movant, and a straight cháin-gang sentence was imposed upon each and all in another case, for keeping prohibited quantities of whisky. The court stated that he was willing to adopt the recommendations of the solicitor, and, while he had no authority to suspend sentence, the defendant was making the proposition, and if said defendant ever appeared in the State of Georgia. after the first day of the following May, following the sentence, the sheriff would take charge of him and put him on the chain-gang to execute said sentence. This course was adopted as to all of the defendants. (4) Movant maintained his family at the same residence, in a mile and a half of Montezuma, Macon county, and State of Georgia; and, over objection of the solicitor and in the teeth of his agreement as to leaving the State, said movant came to his house at will, at least once a week, from the day of the imposition of the sentence complained of. The solicitor notified movant’s counsel of many complaints as to the breach of his agreement and continuance of infractions of the prohibition law. (5) Movant is held in confinement under the sentence hereto attached and marked Exhibit ‘A/ and is now in the chain-gang. The sentence was at once placed upon the minutes of the court. After the payment of the fines and costs as. above stated, the defendants were permitted to leave the court unattended and unguarded. ' There has never been any service of said sentence attached by movant except since June 19, 1918, when he was arrested by the sheriff at Macon, Georgia, and placed in charge of the warden of the chain-gang. (6) On June 19, 1918, movant brought against D. M. Hicks, shériff, and J. T. O’Shields, chain-gang warden, a writ of habeas corpus, before the judge of the superior court, raising the question of the validity and legality of the detention of movant in the chain-gang, of Macon county. All the facts set out herein were substantially proven in evidence upon the trial of said habeas corpus. The judge decided-the case against movant—that the detention was legal— and remanded movant to the custody of said chain-gang warden. Movant presented a bill of exceptions whigh has not yet been heard or disposed of.” “Exhibit A. The State vs. Quill Avery. No. 1421. Accusation for keeping more than 2 quarts of whisky on hand. In city court ¡of Oglethorpe. Plea of guilty. April term, 1917. Whereupon it is ordered, considered, and adjudged by the court that the defendant, Quill Avery, be confined to labor in the chain-gang on the public works for and during the term of twelve months. Judgment signed this 19th day of April, '1917. R. L. Greer, J. C. C. O.’ ”</p>

<p>1. The court did not err in overruling the demurrer to the indictment.</p> <p>2. The special grounds of the motion for new trial from the 1st to the 5th, inclusive, not being complete within themselves, and it being necessary to refer to other portions of the record in order to understand the assignments of error, they cannot be considered by this court.</p> <p>3. There is no merit in the ground that the colloquy which took place between. the court- and counsel for the defendant disparaged certain evidence offered by the defendant.</p> <p>4. Counsel for the defendant made a motion for a mistrial, because of the ' inquiry by the court, of counsel for the State, as to the introduction of a certain paper. Under the facts as stated in the 7th special ground of the motion for a new trial, the court did not err in overruling the motion for a mistrial.</p> <p>5. The 8th special ground is based upon the refusal of the court to permit the' defendant to make another statement after the State had offered certain testimony in rebuttal. No abuse of discretion by the court appears from the facts as stated in the -record. Jones v. State, 12 Ga. App. 133 (2), 135 (76 S. E. 1070).</p> <p>6. When considered with the entire charge of the court and the facts of the case the excerpt complained of is not error for any reason assigned.</p> <p>7. There was some evidence to authorize the verdict, and, the trial judge having approved it, this court will not interfere.</p>

Trover; from city court of Thomasville—Judge W. H. Hammond. January-3, 1918. ' . Gilbert sued Gopeland in trover, alleging- as follows: “1.

<p>Complaint; from city court of Millen—Judge Dekle.January 21, 1918.</p> <p>The First National Bank of Millen sued A. S. Anderson, C. M. Gay, and R. D. Kent on a promissory note of the defendants for $500 principal, dated September 10, 1915. The defendants filed an answer in which they denied indebtedness and pleaded as follows: “Defendants say that said note is one of A. S. Anderson’s and which C. M. Gay and R..D. Kent are only indorsers, and that said First National Bank is due said A. S. Anderson more than he is due them, and therefore there is nothing due thereon.” By amendment it was averred: “that during the year 1915 said A. S. Anderson was elected and acted as vice-president of said First National Bank of Millen, 'and was to be paid for his°.services as such and as attorney and other clerical work done during 1915, and the amount to be decided upon and was to- be a reasonable salary; and in addition thereto was to he loaned certain sums not over $2500 in all; that said A. S. Anderson served as such vice-president and attorney and was never paid anything at all for such, and said hank refused not only to make the loans as agreed upon, but also to renew the loans already made. Defendants say that six hundred is not an excessive amount to ask for said services, and that hi’s services were worth that sum, and «'said bank is justly indebted.to said A. S. Anderson in said amount, and said sum or any part has never been paid, and defendants ask to be allowed to set off this sum against the- amount herein sued for, with judgment for balance of said amount. Said hank having regularly authorized, approved, and accepted such services.” An additional amendment was as follows: “Defendants allege and say that from January 12, 1915, to January 12, 1916, said A. S. Anderson, in addition to his services as vice-president of said First National Bank of Millen, also acted as the attorney for said bank for said time, and in such capacity was, during the months of January, February, March, April, and May especially, and also the remainder of said term, in constant attendance at said bank, advising with them or their attorney and looking after its interest generally; that such services were well worth the sum of $600 for said months of January, February, March, April, and May, 1915,. not considering his other services or any other time; that said services were rendered‘at request of the officers and directors of said First National Bank, with the understanding that they would be paid for, and under such conditions as to put said bank and its officers and agents that said A. S. Anderson would be paid; that said bank, its officers and agents, accepted, approved, and profited by his said services for said time said sums and more, and that said First National Ban& can not escape payment therefor.” ' ■</p> <p>The plaintiff filed a motion to strike the plea and answer, for the following reasons: (1) No legal defense is set up. (2) The defendants do not fully, plainly, and distinctly set forth the cause of action that they seek to set off, and do not attach to their answer an itemized statement of the indebtedness they hold against the plaintiff. ■ (3) Defendants do not show how plaintiff is indebted to A. S. Anderson; they do not show whether the alleged indebtedness to A. S. Anderson is due under a written or a parol contract; they do not show how the plaintiff has become indebted to A. S. Anderson for salary as vice-president, or that the plaintiff has ever agreed to pay him any salary as vice-president; they do not show when he became vice-president, or when the plaintiff contracted to pay him for services as vice-president. It is not shown 'how the plaintiff became indebted to him for services as attorney; it is not shown whether there was a specified amount due him for services generally as attorney, or whether the same originated by special employment for specific .services, or of what the services consisted. (5) It is not shown that any legal contract was’ ever made to pay said Anderson a salary as vice-president, or to pay him for services as an attorney.</p>

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

<p>Certiorari; from Pike superior court—Judge Searcy. January 12, 1918.</p>

<p>Certiorari; from Fulton superior .court—Judge Bell. March 29, 1918. .</p>

<p>Accusation of violation of prohibition law; from city court of Dublin—Judge Flynt. .March 13, 1918.</p>

<p>The verdict being warranted by the evidence, and no reversible error of law. appearing, this court will not interfere with the judgment overruling the certiorari.</p>

<p>“Objection that a sentence imposed in a criminal case is excessive, or for any reason illegal or irregular, can not be properly made the ground of a motion for a new trial.”</p> <p>■(a) Where in such case a motion for a new trial in a city court is based upon the ground that the sentence is excessive, and the ,trial judge overrules the motion and the case is carried by certiorari to the superior court, the certiorari presents no question to the judge of the superior, court upon which to exercise his discretion.</p>

Indictment for blackmail; from Fulton superior court—Judge Hill. March 30, 1918.

<p>Motion to arrest judgment; from Whitfield superior court— Judge Tarver. April 10, 1918.</p>

<p>Indictment for possession of intoxicating liquor; from Whitfield superior court—Judge Tarver. April 10, 1918.</p>

<p>Indictment for sale of intoxicating liquor; from Whitfield superior court—Judge Tarver. April 10, 1918.</p>

<p>Accusation of assault and battery; from city court of Bainbridge—Judge Spooner. June 19, 1918.</p>

Indictment for violating prohibition law; from Cherokee superior court—Judge Morris. May 20, 1918. The instruction complained of was that “if the defendant knowingly had in his possession in Cherokee county any quantity of corn whisky, even a spoonful, since the approval of the prohibition act on March 28, 1917, he would be guilty under the law.”

<p>Indictment for felony; from Paulding superior court—Judge Bartlett. May 21, 1918.</p>

Accusation of misdemeanor; from city court of Floyd county— Judge Nunnally. June 25, 1918. The accusation charged Leila Ward with maintaining a lewd house. The State’s witness testified that he peeped through a blind of the house of Miranda Ward, the mother of the defendant, with whom the defendant resided, and saw the defendant, in a room of the house, have sexual intercourse with three soldiers, each of whom came in turn- from an adjoining room.

<p>Indictment for simple larceny; from Haralson superior court— Judge. Bartlett. June 10, 1918.</p> <p>The indictment charged larceny of. “one yellow heifer, horns standing about straight up, about two years old, being a female, and a young cow, of the ox species, . . of the value of fifteen dollars.” The grounds of the demurrer were: (1) The indictment is duplicitous; it charges in one and the same count that the animal alleged to have been stolen was a heifer, a young cow, and a male castrated of the ox species. (2) The description of the animal is so contradictory that the defendant is not put on notice as to whether he is charged with stealing a male or a female, a heifer, a young cow, or a young steer or ox. (3) The indictment charges the theft of one animal only, but the description is so contradictory that the defendant is not put on notice as to the charac-' ter of the animal. .</p>

<p>Indictment for manufacture of intoxicating liquor; from Carroll superior court—Judge Terrell. June 3, 1918.</p>

<p>Indictment for burglary; from Bleckley superior court—Judge Graham. July 17, 1918.</p>

<p>Accusation of assault and battery; from city court of Jefferson— Judge Mahaffey. March 12, 1918.</p>

<p>Accusation of misdemeanor; from city court of- LaGrange— Judge Moon. July 8, 1918.</p> <p>1. The accusation charged J. F. Cook with “the offense of violating prohibition law, for that the said J. F. Cook,” in the county of Troup, “on the 9th day of May, 1918, did then and there unlawfully have, possess, and control alcoholic liquors," spirituous liquors, and whisky.” The defendant filed a plea of autrefois convict, from which it appeared that on May 36, 1917, he was convicted on an accusation charging him with “the offense of misdemeanor, for that the said J. F. Cook,” in the county of Troup, “on the 36th day of May, 1917, did then and there have in his possession, custody, and control alcoholic, spirituous, vinous, malt, and intoxicating liquors.” After the filing' of this plea the accusation and the affidavit on which it was based were amended “by adding thereto, after the word ‘whisky/ the\following: ‘After the 36th day of May, 1917, and on the 9th day of May, 1918, and at divers other times after the 36th day of May, 1917, and prior to the filing of the accusation in this case; and at no time before May 36, 1917, is this charge made.” The amendment was demurred to on the following grounds: (1) It is an effort to limit thé range of the evidence against the accused, contrary to law. (3) ■ The amendment comes too late, after the defendant has' filed his plea of former jeopardy. This, demurrer was overruled. The court sustained a-demurrer to the plea of autrefois convict and struck the plea. The defendant filed exceptions pendente lite to the rulings stated, and error is assigned thereon in the final bill of exceptions,</p> <p>2. Grounds 5, 6 and 7 of the motion for a new trial relate to the rulings stated above.</p> <p>3. A motion for a continuance was made by the defendant, on the ground that he was surprised by the amendment to the accusation and was not prepared to go to trial on the charge made in the accusation as amended. The overruling of this motion is complained of in the motion for a new trial.</p> <p>4. Ground 8 of the motion for a new trial is as follows: “Because the court, erred in overruling defendant’s motion to declare a mistrial, under the following circumstances, to wit: In his opening remarks to the jury and’before the introduction of evidence, "the solicitor stated to the jury that he expected to show that the defendant had in his possession, custody, and control alcoholic liquors, spirituous liquors, and whisky on the 9th day of May, 1918, and at various times before that date and the 26th of May, 1917, but not at any time before the 26th day of May, 1917, thereby referring [?], certainly by suggestion, that on or about the 25th day of, May, 1917, the defendant had been guilty of the same offense for which he was on trial in the instant case; said motion being then and there urged; and in reply thereto the court overruled and refused said motion, and at the time instructed the jury that he would not permit any evidence before the 26th day of May, 1917.”</p>

<p>Accusation of misdemeanor; from city court of Thomasville— •Judge W. H. Hammond. July 13, 1918.</p>

<p>Indictment for larceny from house.; from Stewart superior court —Judge Littlejohn. July 3, 1918.</p> <p>It was testified that on the morning of January 19, 1918, the prosecutor missed from his crib thirteen bushels of Spanish ground-peas which were there when he locked the crib about sundown of the preceding day, and he went from there a short distance into the woods and saw the defendant cutting wood on a steep hillside, “where nobody ever went to get wood before,” and he found in a bush, about 31 steps from where the defendant was cutting wood, .thirteen bushels of groundpeas of the Spanish variety in five sacks, one of which belonged to the defendant. “There were no tracks of any kind around the groundpeas.” The defendant, in his statement at the trial, denied that the sack mentioned in the testimony belonged to him. He said that he spent the night of January 18 at the house of Jonas Morris Sr., and at the request of Jonas went the next morning to cut and haul wood. Witnesses for the defendant testified to the same effect.</p>

<p>Indictment for murder; from Randolph superior court—Judge Worrill. July 13, 1918. • .</p>

<p>1. When considered in connection with the entire charge of the eourt there is no material error in any of the instructions of which complaint is made in the motion for a new trial.</p> <p>2. If there was a theory of the case upon which the judge might have charged on involuntary manslaughter in the commission of a lawful act without due caution and circumspection, it was raised solely by the defendant’s statement at the trial. There was no request to charge on such a theory, and the judge did not err in failing to charge thereon. That part of the opinion in Warnach v. State, 3 Ga. App.- 590 (2), 595 (60 S. E. 288), relied upon by plaintiff in error, as authority requiring the judge in murder cases to charge on the various grades of homicide, upon a theory raised by the defendant’s statement only, was expressly declared, in Lott v. State, 18 Ga. App. 747 (3), 748 (90 S. B. 727), to be obiter, and not binding as authority. An examination of all the cases which apparently hold that it is the duty of the judge to charge on a theory raised only by the statement of the defendant will reveal the fact that there was in each ease, in addition to the statement, evidence authorizing the charge, or the attention of the court was expressly called to the statement and a request made in reference thereto.</p> <p>3. This case is controlled by the ease of Olonts v. State, 18 Ga. App. 707, (90 S. E.- 373), and the verdict of involuntary manslaughter in the commission of an unlawful act was proper.</p>

<p>Indictment for possessing intoxicating liquor; from Emanuel superior court—Judge Hardeman. July 22, 1918.</p>

<p>Indictment for manufacture of intoxicating liquor; from Bibb , superior courts Judge Mathews. July 29, 1918.</p>

<p>Indictment for misdemeanor; from Colquitt superior court— Judge Thomas. íuly 16, 1918.</p>

<p>Indictment for larceny of cotton; from Grady superior court— Judge Harrell. August 7, 1918.</p>

Indictment for misdemeanor; from Houston superior court— Judge Mathews. November 7, 1918.

<p>Indictment for assault with intent to murder; from Toombs superior court—Judge Hardeman. June 25, 1918.</p>

<p>Indictment for violation of prohibition law; from Muscogee superior court—Judge Howard. March 9, 1918. ■</p> <p>In .the instructions set out in the 1st, 2d and 3d special grounds of the motion for a new trial the court used the expressions, “if you should believe,” and “if you should believe beyond a reasonable doubt,” without adding the words, “from the evidence.” This is complained of in each of these grounds.</p>

<p>Certiorari; from Fulton superior court—Judge Pendleton. November 27, 1918.</p>

<p>Accusation of larceny from house; from city court of Houston county—Judge Riley. March 18, 1918.</p> <p>From the evidence it appeared that cottonseed of the kind known as “pull not” seed were stolen from Hodge’s gin-house on Wednesday night, February 13, and cottonseed of the same kind were found on the ensuing Friday where the defendant lived, about four and a half miles from Hodge’s gin-house. Cottonseed had been missed from the same gin-house about ten days before that time. The total amount stolen was about 35 bushels. Several sacks of cottonseed of the “pull not” variety were found in the defendant’s smoke-house, some of the same kind were found in his cotton-house, and some were on the floor of his buggy, on the seat and on the back. When the seed in the buggy were discovered he was asked why they were there, and he replied that he .did not know, ■ that some enemy of his had put them there, that his brother, was mad with him and might have put them there to give him trouble; but about two hours later, at the commitment trial, he stated that the waste cottonseed in the buggy were from seed he had fed to his cow; that he had placed in the buggy the bucket, containing the seed, to keep the hogs from getting them^ and some of them were spilled in the buggy. In his statement at the final trial he said that when asked what the seed were doing in the buggy he did not know what to say, and replied as stated above, but when he had time to think, about two hours later, he remembered and gave the explanation at the commitment trial as stated by the witnesses. íhe prosecutor testified that he could, not say that the seed found at the defendant’s place were seed stolen from the gin-house, but they were like those seed; the “pull not” variety had been planted by several farmers in the community. It was testified that the defendant grew “pull not” cotton, that he had “a good big patch, . . seven or eight acres,” and that “some time before Christmas” he offered to trade three sacks of “pull not” cottonseed which the witness saw at his gin-house. A witness testified that on the night on which the cottonseed were stolen he saw a mule and buggy driven on the plantation road leading from the main public road towards Hodge’s gin-house; it was a dark night and the curtains of the buggy were up, and the witness could not tell who was in the buggy, but the mule looked like the defendant’s mule; his only reason for thinking this was the size of the mule. Another witness testified that he lived on the Hodge place, and that within about three weeks prior to February 13 the defendant came to his house ^on three nights, about eight or nine .o’clock; that on the first night the defendant inquired if the witness had syrup to sell, but did not then'buy any syrup, that the defendant bought a half-gallon of syrup from him on the next visit, and bought a gallon on the third visit; that on the Saturday preceding the 13th of February he told the defendant not to come to his house at night, that Mr. Hodge had been missing cottonseed, and the defendant’s coming to his house at night might get them into trouble; the defendant did not reply to this, but did not again come to the house of the witness. 1 '</p>

<p>Indictment for robbery; from Spalding superior court—Judge Searcy. March 16, 1918.</p> <p>The ground referred to in .paragraph 1 of the decision is as follows: “Because movant contends the verdict of the jury did not speak the sentiment and conviction of the entire jury, because the jury was dismissed for a while by the court after the reading of the verdict, before the defendant’s counsel had an opportunity to poll the jury.” The trial judge’s note as to this ground is as follows: “No request was made at the time the verdict was returned, or at any time, to poll the jury; counsel for defendants being present in court, and the defendants also, at the time the verdict was returned.”</p>