Volume 23 — Georgia Appellate Reports

<p>Accusation o£ misdemeanor; from city court of Cartersville— Judge Aubrey. May 13, 1918.</p>

<p>Indictment for seduction; from Gordon superior court—Judge Tarver. April 10, 1918.</p>

<p>Accusation of sale of liquor; from city court of Millen—Judge Dekle. April 22, 1918.</p>

<p>Conviction of shooting at another; from Quitman superior court —Judge Worrill. April 20, 1918.</p>

<p>Accusation of misdemeanor; from city court of Houston county —Judge Biley. May 13, 1918.</p>

<p>The verdict finding the accused guilty of carrying a pistol is without evidence to support it.</p>

<p>Indictment for violation of prohibition law; from Cherokee superior court—JudgeMorris. May 20, 1918.</p>

Accusation of possession of intoxicating liquor; from city court of Floyd county—Judge Nunnally. June 27, 1918.

<p>Accusation of misdemeanor; from city court of Tifton—Judge Price. July 8, 1918.</p> <p>The accusation charged that the defendant, on February 17, 1918, in Tift county, did “lead a profligate and immoral life, and did then aid there wander and stroll about in idleness, being then and there able to work, and having no property to' support himself.” A ■ police officer testified: “I arrested Cleveland Johnson [the defendant] in Tifton, Georgia, about the 17th day of February, 1918. He was walking alóng the street . ■ . I saw him hereHór two or three days, idling and loafing around, and when T would see him he was walking about in town. The first time.I saw him was on Monday morning when he came to me and told me that he had put up $10 to act as a bond for the appearance of a negro woman by the name of Salutie Carter, and he stated he put up the' money for her appearance at the mayor’s court on Monday morning. On Tuesday morning he came to me again and asked me about the money, and I told him that the bond had been forfeited and he could not get the money back. • The next day I arrested him on a complaint made by some negroes about having given him some money to buy whisky with. . . He stated that he lived in Albany, Georgia, when I arrested him. . . He is a stranger in Tifton, as I have never seen him here before. From his looks I would say he is able to work.” The only other witness testified: “I was at the Union Depot when this man came to me and asked me if I did not want to buy some whisky. I asked him how much it was worth and he told me $2.50 a pint. I gave him $2 and told him to get me the whisky. He told me to wait until he came back, and Lwaited for some time, but he did not come, so I went on. He did not bring me any whisky. I had never seen him before I gave him the money to get the whisky and did not see him again until the trial in the justice’s court.” The defendant, in. his statement at the trial, said that he had never seen this witness before the trial in the justice’s court; that he had a regular job in Albany and worked all the time; that he came to Tifton on Sunday morning, February 15, 1918, intending to return to' Albany that night, but remained to get back $10 lent by him to Salutie Carter, which, on her arrest on Sunday, was put up for her appearance in the mayor’s court Monday; that he had more money than this $10, and was able to pay his way and expenses.</p>

<p>Accusation of misdemeanor; from city court of LaGrange— Judge Moon. July 6; 1918.</p> <p>The accusation charged the defendant with having unlawful possession of alcoholic, and spirituous liquors and whisky.</p> <p>Paragraph 4 of the decision relates to exceptions based on the following facts: When the Verdict of guilty was rendered the trial judge asked if any one present knew the defendant, and after hearing statements as to his character, and before the judgment was signed, announced that the defendant was sentenced to serve six months in the. chain-gang, “with the alternative of discharging the same by paying a fine of $300 within five days;” whereupon the judge was informed that some one else wished to speak about the defendant, and the judge said, “Hold on, I withdraw that sentence,” and heard other statements,, as to the bad character of the defendant,■ to which the defendant replied; after which the court imposed a written and signed sentence of six months in the chain-gang, without the alternative of paying a fine. • The bill of exceptions states that “the defendant objected and said objections were overruled,” and that he excepts to the action of the court “in withholding said sentence as first pronounced, and in hearing said unsworn testimony, and in sentencing the defendant to a term in the chain-gang without the alternative of paying a fine.</p>

<p>Accusation of misdemeanor; from city court of Floyd county— Judge Nunnally. July 15, 1918.</p> <p>The accusation charged the defendant with having had in his possession, custody, and control intoxicating liquor. The only testimony was that of the sheriff, who testified that in a stable in which the defendant kept a jackass, where one Mullen lived, across the street from where the defendant lived,' he found a keg with six or sevén gallons and a quart-bottle of whisky, and several other bottles of whisky around the keg, 'in the jackass stall, in a trench which had been dug there; and he arrested Mullen and the defendant, and both of them denied knowledge of the whisky. He testified that Mullen “did not use the stable where the whisky was found.” Over the objection that it was irrelevant and tended to prejudice the jury against • the defendant, the court allowed the witness to testify as follows: “On a former occasion I saw Will Martin [the defendant] with a basket of shucks on his shoulder, carrying them over to that jackass. I came up behind him. He-looked around,, saw me, and said, ‘Why, Mr. Smith, you scared me. Don’t run upon me that way. You liked to have made me drop this basket.’ ” This is the testimony referred to in paragraph 1 of the decision. The defendant, in his. statement at the trial, said that the whisky found was not his whisky, and he did not know it was in the jackass stall; that the barn where the jackass was kept was on the place rented to Mullen by Mr. Harvey, and Mullen gave him permission to keep the jackass in the stall; that!he (the defendant) had nothing further to do with it; and that Mullen admitted, after his arrest, that the whisky belonged to him (Mullen), and that he (Mullen) put it there.</p>

<p>Indictment for manufacture of intoxicating liquor; from Wilcox superior court—Judge Crum. June 26, 1918.</p> <p>The indictment charged the accused with “the offense of making liquor, for that,” on the 12th day of May, 1918, in Wilcox county, he did “unlawfully and with force and arms knowingly permit and allow to be located on his premises and did possess apparatus for the manufacture of intoxicating liquors, wines, and beers, contrary to the laws,” etc. The demurrer was on the following grounds: (1) No offense is charged. (2) The indict-</p> <p>ment fails to allege by whom the apparatus for the manufacture of liquors was located on the premises of the defendant. The contrary not appearing, the presumption would be that the apparatus was located on the said premises and in the possession of the defendant ; which, if true, would constitute no offense against the laws of this State. (3) There should be stricken from the indictment the words, “and did possess;” for these words, taken in connection with the'words, “apparatus for the manufacture of intoxicating liquors,” etc.', would constitute no offense.</p>

<p>Conviction of assault with intent to rape; from Early superior court—Judge Worrill. May 4, 1918.</p> <p>One of the grounds of the motion for a new trial was: “Because upon the trial of said case the court erred in the following point and particular: After the jury which was empanelled to try said case had been instructed by the court and had retired to their jury-room to deliberate on said case, the defendant left the courtroom in the custody of an officer of said court, crossed a corridor adjacent to said court-room, and entered a toilet, said toilet being so far removed from said court-room that he was outside of the hearing of the court, and while said defendant was so out of the court-room the presiding judge ordered the jury to be recalled, and upon their being recalled, the court, in the absence of the defendant, gave to the jury the following additional charge, to wit’: ‘Gentlemen of the jury, while it is not necessary to do so, I will charge the jury as to what the penalties are. The offense of assault with intent to rape is punishable by a term in the penitentiary for a period of not less than one nor longer than twenty years. Simple assault and assault and battery are both misdemeanors, and punishable by a fine or imprisonment, or else by fine and imprisonment,’-—-the said defendant not having waived his presence in any way; which charge, made in his absence from the court-room, movant insists is error, for the reason that the court had no right or authority to instruct the jury in the absence of the defendant from the court-room, the defendant not having waived his presence.” .After approving the grounds of the motion, the judge added thé following note: “The jury was called back in a few moments after the main charge. ’They had hardly had time to be well seated. If defendant was absent from the court-room his absence was voluntary, and the court was wholly unconscious of the fact, no notice having been given the court'of his intention to retire from the court-room. The court believed he was present, and, had the court’s attention been called to the fact that defendant wa.s out of the court-room, would not have given any part of the charge in his absence. The presentation of this amendment this morning is the first notice on my part that defendant claimed to have been absent at any part of the court’s instruction to the jury.”</p>

<p>Conviction of manslaughter; from' Warren -superior court— Judge Walker. July 16, 1918.</p>

<p>' Accusation of misdemeanor; from city court of .Carrollton-— Judge Beall, June 27, 1918. -</p>

<p>Indictment for sale of liquor; from Candler superior court— Judge Hardeman. July 22, 1918.</p>

<p>Indictment for assault with intent to murder; from Wayne superior court—Judge Highsmith. July 13, 1918.</p>

<p>A conviction under a municipal ordinance on the charge of disorderly conduct was authorized by the testimony of the police officers, who, in “making a raid on the house” of a woman, discovered in a room of the house, in which there was very loud and boisterous talking, the defendant, with two women, and a partly filled bottle of whisky, a glass of whisky, empty glasses “that appeared to have been just used,” and several empty whisky bottles.</p>

<p>1. The death of a member of the bar employed as counsel in a majority of the cases' pending in the superior court of a county is not such cause as will authorize the judge in vacation to order an adjournment of the next regular term of the court.</p> <p>(a) A request by counsel for an adjournment of a term of the court to a stated time to which it can he legally adjourned is not to be treated as a' consent to adjournment in a manner not. authorized' by law, and will not estop him from objecting to the trial of a case at that‘time, where- the judge’s order providing for adjournment to that time is issued at a time or in a manner not authorized by law.</p> <p>2. Under the provisions of the code as to special terms of the superior' court (Civil Code of 1910, § 4876), the judge was authorized to pass an order, on the day illegally set for the convening of an adjourned term, providing for the convening of a special term on that day, and. requiring the attendance of the jurors drawn for the preceding regular term, those- jurats being present when this order was passed.</p> <p>3. The affidavit of illegality having been filed before the time for the preceding regular term, the case stood for trial, and, counsel for the affiant being present and declining to try the ease when it was called for trial at the special term, the court' did not err in dismissing it for want of prosecution.</p>

<p>Action for damages; from Monroe superior court—Judge Searcy. January 12, 1918.</p>

<p>Complaint; from city court of Atlanta—Judge Eeid. October 11, 1917.</p>

<p>Action for damages; from Murray-superior- court—Judge Tarver. March 9, 1918.</p>

<p>Complaint;, from city court of Reidsville—Judge .Collins. May • 21, 1918;</p>

<p>1. The provision of the code that “admissions or propositions made with a view to a compromise are not proper evidence” (Civil Code of 1910, § 5781) does not apply to the testimony in this case as to the defendant’s statements to the plaintiff to the effect that he had damaged the plaintiff’s piano and that he would pay the full amount of the damage—$100 in a few days and the remainder after finding what the damage would be.</p> <p>2. There was evidence to authorize the verdict, and the judge of the superior court did not err in overruling the certiorari.</p>

<p>1. Grounds of the motion for a new trial which are not referred to in the brief of counsel for the plaintiff in error will be treated as abandoned.</p> <p>2. Exceptions in which it is contended that in the plaintiff’s petition a recovery was sought only for mental pain and suffering, and not for a physical injury, are without merit. The petition shows clearly that she sued on account of an assault and battery, praying for compensation for the injuries inflicted', and, by reason of certain aggravating circumstances, praying also for exemplary damages.</p> <p>3. The exception that the judge in charging the jury failed to set forth fully and fairly the contentions of the defendants, and “charged at much length and with greater detail the contentions of the plaintiff,” is without merit. The greater length of his statement of the plaintiff’s contentions does not indicate that undue stress was laid upon or undue prominence given to them.</p> <p>4,5. Although the defendant’s answer d'enied the plaintiff’s allegation that in the acts in question the defendant Harry May acted as agent of the defendant corporation, yet as there was no evidence to sustain this denial, and it was shown by the testimony of Harry May that at the time of the alleged acts he was an officer of the corporation and in charge of its place of business, it is not cause for a new trial that the court, in the absence of a request to charge the jury as to the law governing the responsibility of a principal for the acts of an agent, omitted to charge on that subject, or that the court charged on the assumption that the act of Harry May in ordering the plaintiff out of the place of business was an act of the corporation.</p> <p>6. Viewed in the. light of the entire charge to the jury, the exception tc a part of it, on the ground that the defendant corporation was operating a private business as distinguished from a public utility, and had a right to order the plaintiff out of its place of business, regardless of her belief or state of mind when she entered the place and regardless of the nature and manner of her questions, is not meritorious.</p> <p>7. The rule that grounds of a motion for a new trial which are incomplete and can not be understood without reference to another part of the record are not in proper form for consideration applies to the groun'd' that the court erred in charging as follows: “These are the contentions of the parties. If the plaintiff’s theory is correct, she is entitled to recover.”</p> <p>8. As the defendants were sued as joint tort-feasors, and the evidence showed conclusively that if there was any liability they were liable jointly and not separately, there was no harmful error in the charge of the court as to the form of the verdict.</p>

<p>Action on insurance policy; from city court of Thomasville— Judge W. H. Hammond. January 14, 1918.</p> <p>This was a suit on an insurance policy covering certain household furniture. The policy states that the property described therein is insured only while contained in the dwelling house situated at 303 N. Dawson St., Thomasville, Ga., “and not elsewhere.” From the plaintiff’s evidence it appears that on January 29th, 1917, the dwelling house described, in which the insured goods were stored, was- partially destroyed by fire, together with a portion of the goods thus insured; that the roof of the house was partially burned, and that in order to protect from rain such of the goods in the house as were not destroyed it was necessary to remove them to a place of safety; and, with the approval of the defendant’s agent, the heavy furniture was removed and placed in a storage house, and the other goods insured were removed to the Stuart Hotel in the same city; that on February 13, 1917, that hotel and goods of the value of $299.75 which .the plaintiff had removed to it were destroyed by ffre; and it is to recover this sum that the present suit was brought. It is alleged that before the goods were removed to the hotel the plaintiff obtained the consent of the defendant, through its duly authorized agent, to the removal, and that tlie plaintiff removed the said property “in pursuance of said parol agreement or contract, relying solely upon the consent of defendant and the contract of defendant.” By amendment, the plaintiff alleged, that the reason the goods were removed was that they were endangered by fire and required removal; that within five days from the date of removal he approached the defendant’s agent, who as such agent had the policy in his possession, and requested that he indorse the removal on the policy in‘writing, and he promised to do so, but he failed to keep the promise; and that the plaintiff thought the indorsement had been made, until the fire, occurred. He testified that within the five-days period provided for by the terms of the policy he went to Mr. Parker, the defendant’s agent, and requested him to indorse in writing upon the policy the removal of the goods from 303 North Dawson Street to the Stuart Hotel, since it was impossible to repair the dwelling house at 303 North Dawson Street within-that time;, that the agent promised to make such written indorsement upon the policy, and that on January 29, 1917, he left the policy with the agent for the purpose of having the agent make.the indorsement thereon, and for the purpose of getting an adjustment of the loss sustained at 303 North Dawson Street. He testified that it was "the general custom at Thomas-ville, Ga., for the .agent of an insurance company to indorse removal on the policy when the holder of the policy moved goods that were insured from one house to another;” that he had at previous times held policies with the defendant, and that its agent, whenever he moved, indorsed the removal on the policy when he carried it to the agent and so instructed him. He further testified : • “I don’t know whether or not the company’s agent, Mr. Parker, had. any authority except what is stated in the policy. I don’t know whether or not the defendant company had any knowledge of Mr. Parker’s custom in such matters, or of any local custom.” He further testified that the loss sustained by reason of the first fire was adjusted by the defendant, but that, on demand for payment of the loss sustained in the second fire, the defendant refused to pay it, stating that the policy had been cancelled, and refunding to him $2.25 as unearned premium.</p> <p>One of the conditions of the policy sued upon is as follows:. “If property covered by this policy is' so endangered by fire as to require removal to a place of safety, and is so removed, that part of this policy in excess of property remaining in the origina location shall, for the ensuing five days only, cover the property s removed in the new location. . .” The policy provides also that “This policy is made and accepted subject to the stipulations and conditions- printed on back hereof, which are hereby specially referred to and made a part of this policy, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto; and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto; and as to such provisions and conditions no officer, agent, or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy be claimed by the insured unless so written or attached.”</p> <p>On the conclusion of the plaintiff’s testimony the' court directed a verdict in favor of the defendant. The plaintiff made a motion for a new trial, upon general grounds only, which was overruled, and to this ruling he excepted.</p>

<p>Affidavit of illegality; from Colquitt superior court—Judge Thomas. January 22, 1918.</p> <p>In the briefs of counsel it is stated that the question for decision is whether affidavit of'illegality or an equitable proceeding is the proper remedy. Counsel for plaintiff in error cited: Platen v. Byck, 50 Gg. 245; 20 Cyc. 1199; Bartrom v. Collins Mfg. Co., 69 Ga. 751; Rich v. Kiser, 61 Ga. 370; Mitchell v. Cooper, 73 Ga. 796; Bowen v. Groover, 77 Ga. 196 (9a). Cited contra: Green v. Oliphant, 64 Ga. 566; Tumlin v. O’Bryan, 68 Ga. 65; Harbig v. Freund, 69 Ga. 184; Hood v. Parker, 63 Ga. 510.</p>

<p>Action for damages; from Troup superior court—Judge Terrell. January 15, 1918.</p>

<p>Complaint; from city court of Washington—Judge Wynne. February 8, 1918.</p>

<p>1. A servant is bound to obey a command, when given as such, by one occupying the relation of vice-principal to the master, if it pertains to the duties of the servant’s employment and' does not involve a violation of the law, and if the act required is not one which is of itself so obviously dangerous that no person of ordinary, prudence could be expected to perform it. If, under the circumstances existing at the time of its issuance, the giving of such an order constitutes an act of negligence, but the servant, acting under the duty and obligation thus resting upon him, proceeds to execute the command, and is injured as a consequence, the master is liable in damages to the servant for the injuries so sustained. Moore v. Dublin Cotton Mills, 127 Ga. 609, 616 (56 S. E. 839, 10 L. R. A. (N. S.) 772).</p> <p>2. Whenever the vice-principal of the master enters upon the discharge of duties which relate solely to the ordinary work and functions of a servant, lie will be presumed to have assumed the status of a servant, and when he is thus acting in the capacity of a mere fellow-servant the master is not liable for his acts of negligence whereby another servant is injured (Studevant v. Blue Springs Lumber Co., 16 Ga. App, 668 (3), 85 S. E.'977). If, however, one who is in fact a vice-principal of the master gives what ordinarily would amount to nothing more than a usual and customary work .signal, but in such manner as expressly to indicate with all reasonable clearness that he is then and there assuming to speak, not in the capacity of a fellow-servant, but as the representative of the master, and that with his authority he is engaged in giving a command, then the mere fact that the nature and character of the order may in effect actually correspond with what would ordinarily amount to nothing more than a work signal if issued by a servant, or by one speaking merely as such, would not prevent the order thus given by the vice-principal from having the full force and authority of a command.</p> <p>3. In this case it was a question for the jury to determine whether the vice-principal,- if he in fact was such, in giving the order complained of, was merely performing the ordinary work and duties of a servant, or whether, under the particular facts and circumstances sworn to, he was then and there assuming and purporting to act with the authority of the master, and as his representative was giving the order as a positive command.</p>

<p>Action upon bond; from Tift superior court—Judge Eve. March 6, 1918.</p>

<p>Condemnation under liquor law; from city court of Madison—• Judge Anderson. April 9, 1918.</p>

<p>Complaint; from Ben Hill superior court—Judge Crum. February 9, 1918.</p>

<p>Complaint; from city court of Valdosta-—Judge Cranford. April 12, 1918.</p>

Rule against attorney; from Fulton superior court—Judge Bell. April 4, 1918. The petition as finally amended was as follows: “The petition of Alfred Struck Company, a corporation, respectfully shows: “1. J. S. Slicer, of said county, was, on and for some years prior to May 19th, 1910, and continues still to be, an attorney at law and a member of the bar of this court. - “2.

<p>Action upon bond; from Laurens superior court—Judge Kent. April 22, 1918. .</p>

<p>Complaint; from Marion superior court—Judge Howard. April 24, 1918.</p> <p>The alleged debt was for culvert pipe used on roads.</p>

Conviction of manslaughter; from Fulton superior court—Judge Hill. December 5, 1917. The defendant was indicted for murder and was found guilty of voluntary manslaughter. He was charged with killing a China-man named Jung. He filed'a motion for a new trial upon a number of grounds.

Indictment for carrying intoxicating liquor; from Dade superior court—Judge Tarver. January 9, 1918. An indictment containing two counts was preferred against the Southern Express Company and W. J. Lloyd. On demurrer the first count was stricken.

Indictment for violating liquor law; from Crisp superior court— Judge Crum. March 30, 1918. The • Seaboard Air-Line Kailway Company was convicted of having, controlling, and possessing alcoholic, spirituous, malted, vinous, fermented, and intoxicating liquors, and was fined $1000 and costs of court.

<p>Accusation of possessing intoxicating liquor; from city court of Dublin—Judge Elynt. April 15,, 1918.</p> <p>The defendant was convicted of the offense of having in his possession intoxicating liquors. The State’s witnesses testified, that they found the defendant drunk in his store, and that he had about eight quarts of whisky iu suit-cases on the foot of his “bunk” in the store; that the store was locked; and that there was no one in there except the defendant. The defendant contended, that he was not drunk, but was sick; that he did not own the whisky or kno.w anything about it; and that it was put in his store without his knowledge or consent.</p>

<p>Conviction of manslaughter; from Jasper superior court—Judge Park. April 30, 1918.</p>

Accusation of misdemeanor; from city court of Cartersville— Judge Aubrey. May 3, 1918. The accused was convicted upon the charge that he did “unlawfully conduct and offer to do business as an emigrant agent without registering and procuring the license required by law and without paying the tax required by law.” He excepted to the overruling of his motion for a new trial.

<p>Accusation of carrying concealed weapon, etc.; from city court of Macon—Judge Guerry. May 7, 1918.</p>

<p>Indictment for assault with intent to rape; from Jeff Davis superior court—Judge Highsmith. May 4, 1918.</p>

<p>Indictment for burglary; from Hall superior court—Judge J. B. Jones. August 10, 1918.</p>

<p>Indictment for larceny; from Jefferson superior court—Judge Hardeman. August 6, 1918.</p>

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

<p>Indictment for fornication; from Decatur superior court—Judge Harrell. August 17, 1918.</p>

<p>Indictment for- manufacturing intoxicating liquor; from Decatur superior court—Judge Harrell. August 17, 1918.</p>

<p>Certiorari; from Chatham superior court—Judge Meldrim. June 27, 1918.</p>

<p>Accusation of possessing whisky; from city court of Albany— Judge Clayton Jones. February 22, 1918.</p>

<p>Complaint; from city court of Savannah—Judge Freeman. April 11, 1918.</p>

<p>Accusation of misdemeanor; from city court of Carrollton_ Judge Beall. July 2, 1918.</p>

<p>Indictment for manufacturing whisky f from Bandolph superior court—Judge Worrill. July 13, 1918.</p>

<p>Accusation of possessing intoxicating liquor; from city court of Beidsville—Judge Collins. July 30, 1918.</p>

<p>'Action for damages; from Coffee superior court—Judge Summerall. February 9, 1918.</p>

<p>(Certiorari granted by the Supreme Court.)</p> <p>Conviction of manslaughter; from Chattooga superior court—■ Judge Wright. January 19, 1918,</p>

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

<p>Action for breach of contract; from city court of Carrollton—■ Judge Beall. February -13, 1918.</p> <p>The motion to dismiss the writ of error was on the ground that “none of the rulings complained of amount to a final disposition of the cause, and if they had been sustained by the court they would not have amounted to a final disposition of the cause.”</p>

<p>Action for damages: from Jasper superior court—Judge Park. March 16, 1918.</p>

<p>“All officers charging costs, and exacting payment from the pocket of the citizen, must always show the authority of the law to do so.”</p> <p>{a) “A sheriff is not entitled to pay for any services as costs unless payment for the same be expressly and specifically provided for by statute.”</p> <p>(6) “Acts providing for costs and salaries are to be strictly construed.”</p>

<p>1. The motion to dismiss the writ of error- is denied'.</p> <p>2. The court did not err in sustaining the motion for a nonsuit and dismissing the case.</p>

<p>Action for damages; from Early superior court—Judge Worrill. April 2, 1918.</p>

<p>Action upon insurance policy; from city court of Floyd county— Judge Nunnally. March 23, 1918.</p>

<p>Appeal; from Laurens superior court—Judge Kent. May 7, 1918.</p>

<p>Action for damages; from Taliaferro superior court—Judge Walker. May 22, 1918.</p>

<p>Action for damages; from Fulton superior court—Judge Ellis.' April'20, 1918. ' '</p> <p>The plaintiff was a colored passenger in a street-car in which four seats at the front of the car were reserved for white passengers. These seats were vacant, the remaining seats were occupied by colored persons, and there was no white passenger in the ear when he entered it. He sat in one of these vacant seatsj- and the conductor required him to leave the seat. He sued the street-railway company for damages, alleging that he was greatly humiliated and was put in fear of bodily harm by the conduct and manner of the conductor ; that it was a gross violation of his rights' and of the duty which the defendant owed to him as a passenger, and that there was no reason or justification for the act of the conductor in requiring him to vacate his seat. On the trial he testified:- “The conductor said, ‘You can’t sit here,’ and I said, ‘There is no seats back there,’ and he said, ‘It don’t make any difference. Get back. •You can’t sit there.’ And I got up %nd went on back there, . . and stook on the back. I asked him when this kind of law happened—was made, and he said, ‘It .has been made for sometime;’ and I didn’t say any more to him.” Before the conductor, spoke to the plaintiff the motorman told him that he could not sit in that seat. He testified that they talked loud to him and could have been heard out of the car; that he was afraid of the conductor, and when they spoke to him “that way,” and ordered him to leave the seat and go back, he felt humiliated and wrongly treated.</p> <p>The defendant introduced in evidence, after its witness Matthews had testified, a rule directing conductors on “route 3” to reserve the four front seats (two on each side of the. aisle) for white passengers. The plaintiff was a. passenger on this route. Matthews testified: “I and Mr. Simmons are the. superintendents of the transportation department of the Georgia Bailway & Power Company. We all make the rules governing the traffic. We passed this rule, dated 5th day of December, 1916 [prior to the occurrence in question], addressed to conductors on route 3. We posted that bulletin. . . That rule was passed in order to conform to the laws of the State of Georgia that require you to separate white „ and colored passengers as far as practicable. It is peculiarly applicable to route 3, on account of the large number of negroes who ride that line. We have to reserve some space for the white people that we catch in the middle of the town and who ride—the few white 'people who do. There are a good many ladies included in the few white passengers that do patronize that line.” The conductor and the motorman testified that in asking the plaintiff to move from the seat occupied by him, they were acting in obedience to the rule. The motorman testified that they told him of the rule when he was asked to move. “I just asked him in a kind way.” The written copy of the rule was admitted in evidence over the objections that it was not signed by an officer of the corporation, and that it was not a reasonable rule,</p>

<p>Action for damages; from Fulton superior court—Judge Pendleton, April 4, 1918.</p> <p>The plaintiff, when driving an oil-tank wagon southwardly along the west side of Lee street in the city of Atlanta, turned his wagon to the left, and drove on the street-car track in order to pass an ice-wagon which was standing between the track and the sidewalk; and when he had passed the ice-wagon and was turning his wagon to the right, leaving the street car track, a street-car approaching from behind, and which he had seen before he drove on-the track, struck the left rear-wheel of his wagon with such force that he was thrown from the wagon and injured. He sued the street-railway company for damages, alleging that it was negligent as follows: (1) that the street-ear was being run at a reckless and dangerous rate of speed, to wit, at the rate of 30 miles an hour or more; (2) that no bell or gong was rung to warn him of his danger; (3) that the defendant’s servants on the car, after seeing his danger, made no effort to stop the car, so as to avoid injury to him, and their failure to do so was wilful, wanton, and malicious; and (4) that the car was running at a speed of more than 15 miles an hour, in violation of a municipal ordinance. On the trial the court, on motion of the defendant’s counsel, at the conclusion of the evidence introduced by the plaintiff, granted a nonsuit.</p> <p>The plaintiff testified: “When I got about half way of the block I seen an ice-wagon standing on my route that looked like it was about two feet or two and a half feet from the curb, which made it necessary for me to drive around with two wheels on the track to.pass this wagon, and I looked out to see if a car was coming. It was about half a block or over to my rear. I thought I had sufficient time to drive around that wagon; it is a good long block. I got started around that wagon, and just as soon as I got at the head of the mule I pulled around the wagon and commenced to pull’ off. I commenced to get off on my right, and about that time I heard a noise behind me, and I took my whip and pulled up my lines to try to hit my mule to hurry, and the car hit me about that time, hit the rear hind wheel on thq left-hand side and threw me out. . . When I drove on the car track I was just about as close as I could get to the ice-wagon to get around the wagon without hitting it, before I drove upon the track. That is when I looked back to see if the car was coming. . ... When I looked back it looked to me like the car was at least half a block or more back. . . I was about half way that block, or a little over. ... I reckon it was 60 or 70 feet . . before I got to the half-way stop. . . When I looked back that car was just crossing Oglethorpe [avenue]', just fixing to cross Oglethorpe.” As to the distance to Oglethorpe avenue and the length of the block, the estimates given by the plaintiff when he first testified were somewhat lower than the measurements given by him in subsequent testimony. He first testified that the distance to Oglethorpe avenue was about 300 feet, and the block was at least 400 feet long. He further testified: “This was daylight, early in the morning, but the sun was up. The street was straight. The car was coming towards me, but I could not tell how fast it was coming. . . I know it was so far behind that I thought I had the right of way. I couldn’t swear that it was 200 feet back or 100 feet or 20 feet, because I never measured it. . . I know it was running mighty fast when it hit me, or it wouldn’t have hit me so hard. . . After looking back and seeing the ear about 200 feet (exactly how far I couldn’t tell) and coming fast (but how fast I couldn’t tell), and knowing that I had the right of way, I turned to go around the ice-wagon, and, before I got around, the ear hit me. As to its coming either faster than I thought it was, or that it was closer to me than I thought it was—I don’t know; I guess it was; it was coming faster than I thought it was, I reckon. I guess that is right, that it was either coming faster than I thought it was, or that it was closer than I thought it was. I don’t know whether that is right or not. . . . I am satisfied that car was not closer than I thought'it was; it might have been coming faster than I thought it was. I know it was coming faster than I thought it was, if you will have it that way. Lee street, between this halfway stop and Oglethorpe avenue, has a little slant. . . The car was coming down a slight slant towards me. About the corner of Oglethorpe, I think, is where the highest point is in there; it was a very little slant, I suppose about two feet difference from tho corner down there. . . As to how many feet I had to drive to get around that wagon, I reckon the team would he about 18 feet somewhere, from the back of the wagon to the end of the mule. . . I had to go 28 or 30 feet while the car was going over 200 feet, to strike my wagon. My mule was walking when I got on the track.” Later, after having.made measurements, the witness testified, he found that the distance between Oglethorpe avenue and Beecher street (the next cross-street south) was 849-1/2 feet, and from.the half-way stop to Beecher street was 389 feet; also:.“Ffom Oglethorpe to that rise between.Oglethorpe and where I was struck is 185 feet—to the rise; from the crest of the rise to the water plug was 219 feet; that is where the ice-wagon was.” The witness stated that he heard no gong at or before the time the car struck his wagon; that the noise as to which he had testified was a rumbling noise, like that of a car. There was evidence as to the extent of his ’ injuries, and as to his earnings, etc. The driver of the ice-wagon testified that he saw the plaintiff start around the ice-wagon and saw the car coming, and “knew that there was going to be a collision, the rate the ear was running; . . there was no way not to have a' collision. . . . Mr. Harris [the plaintiff] had done gone around then.” It was testified that the street-car was “coming down that grade . . about 30 miles an hour, something like that.” A city ordinance limiting the speed of street-railroad ears at that place to 15 miles an hour was introduced in evidence.</p> <p>In the brief of counsel for the plaintiff it is stated that the trial judge, in granting the nonsuit, said that the case was controlled by the decision in Athens Ry. & Electric Co. v. McKinney, 16 Ga. App. 741.</p>

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

<p>Indictment for burglary; from tlaralson superior court—Judge Bartlett. June 11, 1918.</p>

<p>Eviction; from Taliaferro superior court—Judge Walker. May 27, 191-8.</p>

<p>(Certiorari granted by the Supreme Court.)</p> <p>Conviction of manslaughter; from Ben Hill superior court-judge Crum. July 9, 1918.</p> <p>Charlie Fountain, a White man, was indicted for the murder of Crockett Gallimore, a negro, and was convicted of voluntary manslaughter. His motion for a new trial was overruled and he excepted. Two of the grounds of the motion were that the court erred in refusing to continue the case, .and in refusing to order a-mistrial on account of a certain occurrence during the progress of the trial. As to these two grounds the trial judge says, in a qualifying note: “When this case was called on March 11th for trial Mr. J. H. Quincey, of counsel for movant, made the showing that Mr.'John W. Bennett was leading counsel for the defendant. At his request the case was postponed until as late as Wednesday morning, March 30th, Mr. Quincey at that time knowing that he .vould be engaged in the regular term of Berrien county superior court, and not sure that he would be loose from that' court at that time, Wednesday. On Wednesday morning, March 30th, the leading counsel, Mr. Bennett, and Mr. Bice, Mr. Quincey’s partner, were present in court, as well as the defendant’s father who, as the record shows, was in charge of the active' preparation of the case on the facts.' The court had summoned near one hundred jurors in order that this case might be tried by a jury drawn from the box. The coiirt, knowing that [of] all men connected with the case the defendant’s father was better prepared to strike the jury than any one else, ruled the case to trial in so far as the selection of a jury on that date, and postponed the taking of testimony until the following day. Mr. Quincey came into the. court-room a few minutes after the selection of the jury had been completed, and had the opportunity of. consultation with the witnesses, along with all the other counsel, during the remainder of the afternoon, from about four o’clock. . As to the witnesses for ■whose absence continuance was asked, John Bennett, E. D. Murray, and Dock Armatrout were secured and were accessible to the defendant and his counsel during ¿11 of the actual trial of the ca.se, and were not used by them. Iverson McCook was sworn. After the motion for continuance was made, neither the defendant nor his counsel ever called on the court to procure the ■ attendance of Sam Dixon, although he lived in the city. When the motion was overruled on Wednesday, March 30th, the court furnished a special officer with an automobile to search for Charlie Baker, and the defendant’s counsel were notified that they could provide any friend or relative of the defendant to go along with this special officer to make search for Charlie Baker, and they availed themselves of this privilege. After being gone all day the 'officer reported that they had gone to those portions of the county designated by the defendant and his counsel, and that they were unable to find Charlie Baker, or to find any one who knew or had ever heard of him. When this report was made, defendant was asked if they desired any further search made, or could suggest where Baker might be. found, and, there being ho further suggestions as to the whereabouts of Baker, further efforts to find him were abandoned.”</p> <p>“Note to the second ground of the amended motion: During the trial of the case the court was privately informed by the sheriff that a man under the influence of whisky had been in the witness room, and treating the witnesses to whisky. The court privately informed the sheriff to be sure as to this, and, if he found that such was the case, to arrest the offending party and bring him into court. The witness-room referred to is in the corner of the courthouse building, adjacent to the front-entrance door to the courtroom, that entrance door being a folding door, situated about 50 feet in front of, and in full view of, the judge’s stand, the upper two-fifths of each panel of the doors being of opaque glass. There is a strong light coming through this door from the outside of the building, to such an extent that the court could see through this opaque glass movements of the bodies of parties outside the door.' Anticipating that the sheriff might make an arrest, the court was on the lookout for what did occur. As soon as he saw a commotion beyond the door outside of the court-room he divined what was coming, and immediately turned to the jury and a'ddressed them direct, ‘Gentlemen,’ go to the jury-room.’ The jurors immediately arose from their seats and were making their way to the jury-room door, which was within a few feet of the jury-box, when the sheriff came through the front door with one Tom Fuller, and while he was making his way down the aisle the jurors’were filing out. A few of the jurors hesitated, and the court spoke to them again and asked them to retire to the jury-room, which they did.' The sheriff brought the prisoner around on the opposite side from the jury to the judge’s stand and placed a bottle partly filled with what appeared to be whisky on the judge’s stand. Without making any inquiry as to what had occurred, and without anything being said within the possible hearing of the jury as to the cause of the arrest, the- court, addressing the sheriff, ordered the prisoner taken to jail.- In this connection the court further certifies that while the name of Tom Fuller was called as a witness for the defendant when he called his list of witnesses, Fuller did not respond, and was not brought to the bar of the court and sworn with the other witnesses, and sent to the witness-room. The court being of the opinion that nothing had occurred to prejudice the defendant, or his ease, and as defendant’s counsel were unable at the time to point out wherein or how his case had been in any wise prejudiced, the court declined to grant, the mistrial as asked for.”</p>

<p>Application for bail; from Ben Hill superior court—Judge Crum. July 27, 1918.</p>

<p>Conviction of manslaughter; from Cherokee superior court— Judge Morris. July 15, 1918.</p>

<p>Indictment for murder; from Calhoun superior court—Judge Harrell. August 17, 1918.</p>

<p>1. While in every criminal case, where it is sought to show the guilt of the defendant by circumstantial evidence alone, the jury should be instructed and cautioned that he should not be convicted on circumstantial evidence, unless the proved facts exclude every possible reasonable hypothesis save the guilt of the defendant, still it is immaterial what language is employed to convey this instruction, if all possible hypotheses arising from the circumstantial evidence which are favorable to the defendant be presented in concrete statement to the jury, and the jury are told that if they believe any one of these hypotheses the defendant should be acquitted. This rule is substantially complied with where, as in the present ease, only two inferences can be drawn from the evidence,—the one of innocence, and the other of guilt,—and the hypothesis . consistent with innocence is fully and fairly stated to the jury, and the jury are instructed that if they are satisfied that the hypothesis consistent with innocence is true, or if they have a 'reasonable doubt as to its truth, the defendant should be acquitted. Mangum v. State, 5 Ga. App. 445 ( 2) (63 S. E. 543); Barrow v. State, 80 Ga. 191 (3) (5 S. E. 64) ; Richards v. State, 102 Ga. 569 (27 S. E. 726) ; Jones v. State, 105 Ga. 649 (31 S. E. 574).</p> <p>2. While some of the excerpts from the charge which are complained of are subject to criticism, none of them, when considered in the light of the entire charge and of the facts of the case, requires a new trial.</p>

<p>Conviction of manslaughter; from Calhoun superior court— Judge Harrell. August 17, 1918.</p>

<p>Complaint; from city court of.Albany—Judge Clayton Jones. April 11, 1918,</p>

<p>Levy and claim; from Colquitt superior court—Judge Thomas. May 4, 1918.</p>

<p>Indictment for murder; from Walton superior court—Judge Cobb. May 15, 1918.</p> <p>1. In the motion for a new trial the charge of the' court on the law of manslaughter was complained of on the ground that the evidence did not authorize instructions on that subject.</p> <p>3. The 5th ground of the motion was: “That the court erred in excluding from the jury the following evidence of J. L. Gibson, a witness for the defendant, to wit: Question: ‘Mr. Gibson, where did you first see Paul Williams [the defendant] after this crime was committed?’ ‘He came up here and gave himself up.’ This evidence was objected to by the solicitor-general and was ruled out by the court, as a self-serving declaration; which the movant contends was error and harmful to the defendant; defendant’s counsel stating that it was offered for the purpose of showing that the defendant surrendered^ himself to the deputy sheriff, Mr. Gibson, the witness, before a warrant was issued for him.”</p> <p>3. . On the subject of flight the court charged the jury as follows: “Plight of one accused of crime, if shown to the satisfaction of the jury beyond a reasonable doubt, may be considered by the jury, for the jury to determine whether, undfer all the circumstances, an inference of conscious guilt should be drawn from such flight, if proven. But flight is subject to explanation, .and the weight to be given it, and whether the jury will draw an inference of consciousness of guilt or not, is for the jury. It is for the jury to determine whether the flight of the defendant, if flight has been shown by the evidence, was due to a sense of guilt or to other reasons; and if the.jury are satisfied that-flight has been shown, but that it was due to other reasons than a consciousness of guilt, then no prejudicial inference should be drawn by the jury from such, flight.” In the motion for a new trial it is contended that “the evidence was not sufficient to justify this charge to the jury, and the same was harmful to the defendant.”</p>

<p>Accusation of possession of intoxicating liquor; from city court of Dublin—Judge Flynt. June 4, 1918.</p>

<p>Indictment for manufacture of intoxicating liquor; from Randolph superior coiirt—Judge Worrill. June 22,1918.</p>

<p>Conviction of manslaughter; from Meriwether superior court— Judge Terrell. July 10, 1918.</p>

<p>Indictment for burglary; from Bibb superior court—Judge Mathews. July 15, 1918.</p>

<p>1. The act of 1898 (Acts 1898, p. 41; Civil Code of 1910, § 112), which provid'es that “Where the tax-collector of any county is succeeded by another, the outgoing collector shall make final settlement with the State and county for the taxes levied and chargeable for the year for ’ which he was elected, and for the collection of which he has given bond; the incoming collector being charged,and responsible only»with the collection of the taxes due for the years for which he is chosen and bonded,” applies only when the tax-collector is succeeded by another, and has no application where the collector is succeeded by himself.</p> <p>2. The failure to pay over taxes collected By a tax-collector, and not the date of the collection, constitutes the breach of his official bond.</p>

<p>Indictment for larceny of automobile;' from Fulton superior court—Judge Hill. July 13, 1918.</p>

<p>Action for damages; from city court of Quitman—Judge Long. April 9, 1918.</p>

<p>Complaint; from Twiggs superior court—Judge Kent. April 30, 1918.</p>

<p>Indictment for misdemeanor; from Ben Hill superior court—•. Judge Crum. January 22, 1918.</p>

<p>Accusation of sale of liquor; from city court of Sylvania—Judge Evans. April 13, 1918.</p>

<p>Indictment for larceny; from Laurens superior court—Judge Kent. May 10, 1918.</p>

<p>Indictment for violation of prohibition law; from Jasper superior court—Judge Park. June 14, 1918.</p>

<p>Indictment for misdemeanor; from Jasper superior court— Judge Park. June 14, 1918.</p>

<p>Indictment for misdemeanor; from Floyd superior court—Judge Wright. September 24, 1918.</p> <p>The indictment charged the defendant with having control and possession of intoxicating liquors. From the evidence it appeared that in a three-story building divided into two sections by a hall running through the center, and occupied by a number of tenants, the defendant had a restaurant “on the lower floor of the left section.” Police officers found behind the restaurant and on a table against the wall’at the rear door a half-gallon fruit-jar containing whisky, and, just above this table and on a concrete .embankment, . a quart-bot.tle containing “a mixture of something like cider and whisky,” wrapped in an old pair .of'trousers. A cement wall about five or six feet high and about three or four feet from the rear end of the building runs along at the back, and there is an opening in the center of the building by which all tenants can use the rear part where the whisky was found. An undertaker’s establishment and a pressing club occupy the'section opposite that occupied by the defendant, and doors from these places as well as from the center hall open on the space back of the building. The table on , which the whisky was found was just outside a door of the defendant’s restaurant, and on it were several coca-cola bottles. A" cook employed in the restaurant testified: “The table just outside of the door of the restaurant ... is his [the defendant’s] table, and we use it in connection with the restaurant, to put coca-cola bottles, milk bottles> and other things- on. . . No one else uses this table. The public used the rear part of the building, where the table was, as well as the cement part to the rear. All the occupants of these two upper stories use the back part of the building, as-well as tenants in the undertaker’s parlor, and negro pressing club, as do also the patrons of these tenants. The public use the back part of the building throughout the day and night. You can go through the building from the street; ' . . it stays open all the time. There is a toilet in the rear . . which is used • tenants, patrons of tenants, and the public. The defendant uses half-gallon fruit-jars in the restaurant for the purpose of keeping ■milk in them.” . The defendant'was away from the restaurant from about four o’clock in the afternoon until nine o’clock at' night, 'and on his return at nine the police officers' searched the premises and discovered the liquor. None was discovered in the restaurant, and he denied that he knew anything of the liquor or the trousers found with it. The cook testified that he was in the restaurant and had . the back door locked all the time during the absence of the defendant that afternoon and night, and during that time went to the rear, where the table was, but did not notice any whisky there.</p>

<p>Indictment for manufacture of liquor; from Jasper superior court—Judge Park. June 14, 1918.</p>

<p>Indictment for assault with intent to murder; from Eorsyth superior court—Judge Morris. August 31, 1918.</p>

<p>Indictment for felony; from Wilkes superior court—Judge Walker. September 10, 1918.</p> <p>Herbert Neville was found guilty under an indictment charging him with having distilled and made alcoholic, spirituous, and malt liquors. It was testified that a still was found on a branch about a hundred yards back of the house of his father; and he stated that he had helped his older brother to move it there, but that he had nothing further to do with it. Six barrels which had had whisky in them were found near the house, and bottles which had contained whisky were found “around there;” some vats which had been used to put malt in, to make beer with, were found “down the branch a little;” and at the corner of the garden was a barrel containing two bushels of wet corn, which was sour and was used for malt, and which had been there a week or ten days. “There was no complete liquor there.” There was a hole which áppeared to' have been dug for a furnace, but it was not completed. The still “had not been used in that place; they had just moved it there.” The defendant said it had been moved from across the river, which was the boundary between that county and another county. At the time these things were found by the witness the defendant’s mother said in the defendant’s presence that “the boys were making whisky because they didn’t want to make a crop, for they were going to war.” The defendant “did not deny it.” Ilis mother has two other boys, and one of them went to the war; one of them, it was testified, “was hiding.”</p>

<p>Indictment for'violation of prohibition law; from Wilkes superior court—Judge Walker. September 17, 1918.</p>

<p>Indictment for larceny of cow; from Troup superior court— Judge Terrell. September 25, 1918.</p>

<p>Indictment for possession of liquor; from Cherokee superior court —Judge Morris. August 26, 1918.</p>

<p>1. The folio-wing charge of the court was not error: “Who -used the first opprobrious words, if any were used? I charge you that if you should find that although there might have been opprobrious words used, yet if you find the defendant Eolds used the first opprobrious words, that . would not justify him in striking Moseley on account of his (Moseley) using opprobrious words.”</p> <p>2. When considered in the. light of the entire charge of the court and the facts of the ease, there is no material error in any of the other excerpts from the charge upon which error is assigned.</p> <p>3. A portion of the request to charge contains a reference to “the relative size and strength” of the prosecutor and the defendant. The evidence is silent as to the relative strength of these parties, and accordingly the court did not err in refusing to give the requested instructions. Thompson v. State, 20 Ga. App. 178 (6) (92 S. E. 959).</p> <p>4. The verdict was amply authorized by the evidence, and the court did not err in overruling the motion for a new trial.</p>

<p>Where a defendant in a criminal ease has entered a plea of guilty and sentence has been pronounced thereon, he can not as a matter of right withdraw the plea. His motion to he allowed' to dp so is addressed to the sound, legal discretion of the court, and the judgment thereon will not be controlled unless a manifest abuse of such discretion appears. Where, however, in such a case the accused, during the same' term of court, flies a written motion to be allowed to withdraw his plea of guilty, and, from uncontradicted evidence in support of the motion, it appears that the plea was entered under a misapprehension by him as to the offense to which-he was pleading guilty, and that he thought he was pleading guilty to another offense, refusal to grant the motion is an abuse of discretion.</p>

<p>Accusation of misdemeanor; from city court of Thomasville— Judge W. H. Hammond. September 17, J918.</p>

<p>1. When the judge gives to the jury a charge as requested} in writing, it is not erroneous for him to add comments that are pertinent and correct. Under rulings of the Supreme Court the comments added to the written request in this case were “pertinent and correct.”</p> <p>2. “When the verdict is apparently decidedly against the weight of the evidence, the trial judge has a wide discretion as to granting or re- - fusing a new trial; but whenever there is any evidence, however slight, to support aj verdict which has been approved by the trial judge, this court is absolutely without authority to control the judgment of the trial court.”</p>

<p>Indictment for possession of intoxicating liquor; from Forsytb superior court—Judge Morris. September 21, 1918.</p>

<p>Indictment for larceny after trust; from Whitfield superior court—Judge Tarver. June 29,-1918.</p>

<p>Action for damages; from Cobb superior court—Judge Patterson. December 22, 1916.</p>

<p>Complaint; from Liberty superior court—Judge Sheppard. September 19, 1917.</p>

Action for damages; from city court of Richmond county— Judge Black. February 7, 1918.

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

<p>Action on contract; from city court of Richmond county— Judge Black. February 8, 1918.</p> <p>The petition alleges: “2d. That on the 12th day of March, 1912; defendant purchased of your petitioner 250 gross of Honest John Bluing at $2.75 per gross net, less the freight, to be delivered at Augusta, Georgia, by a written order, a copy of which said order is hereto attached. . . [The attached order is for goods of the quantity and price named, "to be used as ordered within 12 mos. from date. . . 25 gross now.”] 3d. That said 250 gross of Honest John Bluing were to be manufactured by plaintiff and put up under their particular brand in a special package for defendant, in accordance with defendant’s instructions. 4th. That your petitioner was at all times prepared to deliver said 250 gross of Honest John Bluing to defendant at Augusta, Georgia, under the terms of said contract, at any time during the twelve months between the 12th day of March, 1912, and the 12th day of March, 1913. 5th. That defendant ordered out 45 gross of said 250 gross of bluing during the time specified in said written order, but refused to accept the remainder of said contract of 205 gross. 6th. That notwithstanding your petitioner had fully, complied with the terms of the contract and stood ready and prepared to deliver said bluing under and in accordance with the terms and conditions of said order, defendant, without lawful warrant or authority, refused to accept the same, and notified your petitioner that it would not accept the 205 gross of Honest John Bluing. 7th. That your petitioner has been damaged in the sum of $194.75 by defendant’s breaching its contract, in that the actual cost of manufacturing, crating, and delivering said 205 gross of bluing at Augusta was $1.80 per gross, leaving a. net profit to your petitioner of 95 cents per gross on 205 gross. Wherefore your petitioner prays judgment for $194.75, and that process issue,” etc.</p> <p>The defendant demurred on the grounds: (1) No cause of' action is stated. (2) The alleged contract is without consideration. (3) The alleged order appears not to have been accepted. (4) The alleged order is unilateral, wanting in mutuality, and not binding on the plaintiff, and consequently not binding on the defendant. (5) There are no sufficient allegations on which to base the alleged claim for damages. (6) The allegations do not show that the plaintiff is entitled to recover damages; and if any wrong was committed, it was without damage.</p> <p>P. C. O’Gorman, Charles G. Reynolds, for plaintiff, cited: (On ground 1 of the demurrer) Oklahoma Vinegar Co. v. Ford, 116 Ga. 140; Linder v. Cole Brothers Co., 10 Ga. App. 102; Levy v. Bixler Co., 20 Ga. App. 766; Rounsaville v. Leonard Mfg Co., 127 Ga. 735; Civil Code (1910), §§ 4246, 4242. (On grounds 3 and 4 of the demurrer ) Civil Code, § 3222, par. 7; Columbus Crate Co. v. Evans, 130 Ga. 432; Maine v. Howell, 7 Ga. App. 311; 2 Elliott, Contracts, §§ 1332, 1319-20; Damon v. Osborn, 1 Pick. 476 (11 Am. Dec. 227); Garfield v. Adams, 96 D. S. 557; Gault v. Brown, 48 N. H. 183 (2 Am. B. 210); Towne v. Davis, 22.Atl. 450; Theilen v. Both, 50 N. W. 183; Gabriel v. Kildare Elevator Co., 10 L. R. A. (N. S.) 638; Linton v. Williams, 25 Ga. 391, 394; 1 Gr. Ev., § 268; Trigg Candy Co. v. Emmett Shaw Co.. 9 Ga. App. 358; Luke v. Livingston, 9 Ga. App. 116; Capital City Brick Co. v. Atlantic Ice & Coal Co., 5 Ga. App. 436; Groover v. Warfield,, 50 Ga. 645, 654; Justice v. Lang, 42 N. Y. 493 (1 Am. R. 576); Le Vine v. Whitehouse, 37 Utah, 260 (Ann. Cas. 1912C, 407); Smith v. Jones, 66 Ga. 338; Wemple v. Knopp, 15 Minn. 440 (2 Am. R. 147); Re Neff, 157 Fed. 57 (28 L. R. A. (N. S.) 349; Hodges v. Kowing, 7 L. R. A. 87; Lee v. Vaughn Seed Store, 141 S. W. 496 (37 L. R. A. (N. S.) 352; Flegel v. Dowling, 54 Oreg. 40 (19 A. & E. Ann. Cas. 1159, 2 L. R. A, (N. S.) 221; Ulsperger v. Meyer, 217 Ill. 262 (3 A. & E. Ann. Cas. 1032, and note, 1036); Bailey v. Leishman, 32 Utah, 123 (13 A. & E. Ann. Cas. 116, and note); Wharton v. Tolbert, 65 S. E. 1056; Beckwith v. Clark, 188 Fed. 171; Crutchfield v. Donathon, 49 Tex. 691 (30 Am. R. 112); Mizell v. Burnett, 69 Am. D. 744; Old Colony R. Corp. v. Evans, 60 Am. Dec. 394; 35 Cyc. 52, par. 3, 58, par. 6; Strickland v. Jelks, 18 Ga. App. 86; Harris v. Amoskeag Lumber Co., 97 Ga. 465 (4); Phillips v. Ocmulgee Mills, 55 Ga. 634 (4); 9 Cyc. 257, 260; Draper v. Macon Dry Goods Co., 103 Ga. 661; Bluthenthal v. Moore, 106 Ga. 424 (2); Anderson v. Hilton & Dodge Co., 121 Ga. 688; Georgia Engineering &c. Co. v. Horton, 135 Ga. 58 (1), and cit.; Freeman v. Matthews, 6 Ga. App. 164; Ansley v. Hightower, 120 Ga. 719 (3); Allen v. Powell, 125 Ga. 438 (1); Crovatt v. Baker, 130 Ga. 507. (On ground 5 of the demurrer) Carolina Portland Cement Co. v. Columbia Improvement Co., 3 Ga. App. 483; Cen. Ry. Co. v. Cooper, 14 Ga. App. 738, 740; United Roofing Co. v. Albany Mill Supply Co., 18 Ga. App. 184; 35 Cyc. 594-5, par. 2, 596.. (On ground 6 of the demurrer) . Gabriel v. Kildare Elevator Co., 10 L. R. A. (N. S.) 638. (In reply brief, as to acceptance 35 Cyc. 52, 58; 6 R. C. L. 605, 686-7; 13 C. J. 339; Brown v. Bowman, 119 Ga. 153; Robson v. Weil, 142 Ga. 429, and cit.</p> <p>Callaway & Howard, for defendant, cited cases cited in the following opinion, and Simpson v. Sanders, 130 Ga. 365; Oliver Construction Co. v. Reeder, 7 Ga. App. 376; Cooley v. Moss, 133 Ga. 707; Mallet v. Watkins, 133 Ga. 700 (1); Glessner v. Longley, 135 Ga. 676 (4); Civil Code (1910), §§ 4346, 4330, 4341, 4317; 13 Corpus Juris, 339-40-41.</p>

<p>Trover; from city court of Blakely—Judge Sheffield. February 19, 1918.</p>

<p>1. The meritorious special demurrers to the petition were sufficiently cured by amendment, and the petition as amended was not subject to the general demurrers interposed by the three defendants. There was no misjoinder of parties, under the allegations made.</p> <p>2. The evidence disclosed liability on the part of the Georgia Northern Railway Company and the Western Union Telegraph Company, but failed to fix liability against the Southern Bell Telephone and Telegraph Company.</p> <p>3. There was no harmful error in the failure of the court to instruct the jury that' they might find one or-more or all of the defendants liable.</p> <p>4. Whether or not the defendant failed to exercise ordinary care was a question for determination by the jury.</p> <p>5. Where a series of propositions are presented en bloc in a single request to charge, the court is not required to give them or any part of them, if any one of them is erroneous or inapplicable to the case on trial.</p> <p>6. The court erred in overruling the motion for a new trial made by the Southern Bell Telephone and Telegraph Company, but the judgments overruling the motions for a hew trial made by the Georgia Northern Railway Company and the Western Union Telegraph Company are affirmed. - ’ -</p>

<p>Condemnation under liquor law; from city court of Dublin— Judge Flynt. February 16, 1918.</p>

<p>Complaint; from city court of Bichmond county—Judge Black. January 24, 3918.</p>

<p>Complaint; from Spalding superior court—Judge Searcy. February 9, 1918.</p> <p>Albert B. Mayer, for plaintiff, cited:</p> <p>E. M. & G. F. Mitchell, for defendants, cited:</p>

<p>Complaint; from city court of Morgan—W. H. Gurr, judge pro has vice. February 18, 1918.</p>

<p>Action on bond; from Cherokee superior court—Judge Morris. March 2, 1918.</p>

<p>Action for damages; from Glynn superior court—Judge High-smith. January 24, 1918.</p>

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

<p>Complaint) from city court of Yaldosta—Judge Cranford. April 5, 1919. '</p>

<p>Action on contract; from Catoosa superior court—Judge Tarver. March 9, 1918.</p>

<p>Action on insurance policy; from Floyd superior court—Judge Wright. February 15, 1918.</p>

<p>Complaint; from city court of Nashyille—Judge Christian. April 9, 1918.</p>

<p>1. Tt does not appear that the discretion vested in the judge was abused by his refusal to allow additional evidence in behalf of the plaintiff after announcing that a nonsuit would be awarded, it appearing both that counsel for the plaintiff had knowledge of the existence of the proposed' additional evidence and that the same evidence was available before closing the case, and no reason being assigned why it had not been previously presented. Cushman v, Coleman, 92 Ga. 772 (19 S. E. 46) ; Penn v. Georgia So. Ry. Co., 129 Ga. 856 (60 S. E. 172) ; Polhill v. Postal Telegraph-Cable Co., 16 Ga. App. 601 (3) (85 S. E. 936); Moore v. Dixie Fire Insurance Co., 19 Ga. App. 800, 807 (92 S. E. 302).</p> <p>2. There was no error in awarding a nonsuit on the 1st and 2d counts of the petition, as the evidence failed to establish that at the time of the injury the defendant was engaged and the plaintiff employed in inter* state commerce. According to the plaintiff’s testimony he was “inspector for engines, tanks, wheels, and all siich as that—engine carpenter,” and inspected engines engaged in both intrastate and interstate commerce. He inspected any engine that came into the roundhouse; and an engine might run to Chattanooga, Tennessee, on one day, to Jacksonville, Florida, on another day, or to Macon, Georgia, on still another day. Minneapolis &c. R. Co. v. Winters, 242 U. S. 353 (37 Sup. Ct. 170, 61 L. ed. 358, Ann. Cas. 1918B, 54). The answer of the defendant to the allegation as made in the petition (which was afterwards made more definite by amendment), that the plaintiff was ' injured while employed in interstate commerce, was not so evasive as to constitute an admission of the truth of the alleged fact and to supply, when introduced in evidence, sufficient proof that the plaintiff was engaged in interstate commerce.</p> <p>3. The court erred in granting the second application to remove the case from the State to the Federal court, after sustaining the motion to award a nonsuit .as to the two counts in the declaration alleging that the plaintiff was employed in interstate commerce at the time of the injury, since he did not admit any failure of proof' as’ to the character of the employment; nor did he amend his complaint, but at all times insisted and still insists that the allegation was supported by the evidence; and- it did not appear that the allegations as to employment in interstate -commerce were made for the fraudulent purpose of evading the removal of the ease from the State court.</p>

<p>Complaint; from Madison superior court—Judge W. L. Hodges. March 4, 1918.</p>

<p>Action for damages; from city court of Brunswick—Judge Krauss. April 20, 1918.</p>

<p>Complaint; from Heard superior court—Judge Terrell.. February 13, 1918.</p>

<p>Action for damages; from city court of Floyd county—Judge Nunnally. March 8, 1918.</p>

<p>Complaint; from I-Iaralson superior court—Judge Bartlett. April 15, 1918.</p>

<p>Action for damages; from’ city court of Eloyd county—Judge Nunnally. May 13, 1918.</p>

<p>Action for damages; from city court of Macon—Judge Guerry. May 8, 1918.</p>

<p>Certiorari; from Bibb superior court—Judge Mathews. April 24, 1918.</p>

Complaint; from Whitfield superior court—Judge Tarver. May 11, 1918. The consideration recited in the note sued on was “value received.” The defendant pleaded failure of consideration, and alleged: “The note ’sired upon . . was executed as a part of an offer to purchase two shares of the capital stock of the Cosmopolitan Life Insurance Company of Atlanta, Georgia; . . no stock-has ever been issued and tendered to defendant in compliance with the consideration in said note.

<p>Affidavit of illegality; from Fannin superior'court—Judge Morris. May 31, 1918.</p> <p>On September 3,1917, an execution for $156,75 and interest was issued by the ordinary of Fannin county against M. K. McKinney, county treasurer for the years 1913 and 1914, and the sureties' on his official bond as treasurer, the execution reciting that the said sum was due to the county as county money in his hands, collected for county purposes. Daves, one of the sureties, on whose property the execution was levied, filed an affidavit of illegality, in which it was alleged'in substance that the execution was for money which McKinney, after .he had ceased to be treasurer, received from his successor in office, Wheeler; and it was contended that the sureties were not liable for money thus received; that if the money paid by Wheeler to McKinney was more than was due McKinney by the county, the remedy of the county was against Wheeler and the sureties on Wheeler’s bond as treasurer, and not against sureties on the bond of McKinney. The judge of the superior court (who by agreement tried the case without a jury, upon an agreed statement of facts, set out in the following opinion), rendered a judgment sustaining the' affidavit of illegality; and the county excepted.</p>

<p>Action on contract; from Pike superior court—Judge Searcy. May 17, 1918.</p> <p>The petition alleged: “Defendant is indebted to petitioner in the sum of $326.25, for that the said defendant did, on the —• day of-, 1916, execute to petitioner his contract for his delivery of certain cotton, and which he failed to do, thereby causing a breach of said contract, to the injury and damage of petitioner in the . sum mentioned above.” By amendment it was alleged: “The defendant wanted to sell plaintiff 9 bales of cotton at 12 cents per pound, each to weigh 500 pounds, to be delivered at Neal, Ga., between the first day of October and the 30th day of November, 1916, said cotton to grade ‘Atlanta Middling (4s).’ Plaintiff told défendant that he did not care to buy the cotton. Defendant then insisted that plaintiff sell said cotton for him. This the plaintiff agreed to do as an accommodation to the defendant, and this was to be done without any profit or compensation to the plaintiff at all, and in March or April, 1916, did sell said cotton to George W. Cavenaugh & Co. for 12 cents per pound. When said cotton was to be delivered by defendant, under his agreement with plaintiff, he failed and refused to deliver the same, and plaintiff, to comply with the contract he had made for defendant, was forced to buy on the market 9 bales of cotton, and had to pay for it 19-1/4 cents per pound, that being the market price for that grade of cotton at the time and place of delivery, to wit, Neal, Ga. By reason of defendant’s failure to comply with his said contract, plaintiff has been injured and damaged’ in the sum of $326.25, this being the difference between the price for which plaintiff sold said cotton for defendant and the market price that plaintiff had to pay for the same grade of cotton at the time and place of delivery.”</p>

<p>Indictment for murder—petition for change of venue; from Burke superior court—Judge Henry C. Hammond. October 3, 1918.</p>

<p>Action for damages; from city court of Atlanta—Judge Reid-December 15, 1917..</p>

<p>1. The exceptions taken pendente lite are without substantial merit; and' the evidence was sufficient to authorize the verdict.</p> <p>2. While the testimony as to the time when the previous and similar derailments took place was of doubtful admissibility and not as explicit ' as it might be, its reception on the theory of tending to show notice to the defendant of the physical conditions was not such harmful error as to authorize this court to set aside the verdict.</p> <p>3. It was not illegal to reject the testimony of an employee of the defendant, that he had been accustomed to pass every night by the watchman’s shanty in which the plaintiff was injured by the derailed car, that he had seen the plaintiff in there several times, usually asleep (he thought), and that several times he looked in and saw him asleep; since the “several” occasions not particularized, and referred to as having occurred within an indefinitely stated period, could not properly show a general habit of the plaintiff.</p> <p>4. The instruction to the jury upon the presumption of negligence and' the burden of proof was not erroneous.</p> <p>(а) In an action against a railroad company for damages on account of negligence resulting in injury to an employee but not in his death, the presumption of negligence was the same after the act of 1909 (Civil Code, §§ 2182 et seq.) as before its passage.</p> <p>(б) The injury having been caused by a derailment of the defendant’s cars, a common-law presumption of negligence arose against the defendant, independently of the statutory presumption.</p> <p>(c) The duties of the defendant’s watchman were such as to demand a finding that he could not have been connected with the derailment that caused the injury, and could not have assumed the risk of such danger.</p>

<p>Money rule; from Taylor superior court — Judge Howard. December 1, 1917.</p> <p>Reynolds Banking Company brought a petition for a money rule against Beeland, sheriff, alleging, that in a suit of the Southern ■ Pacific Guano Company against Reynolds Banking Company, upon a forthcoming bond given by the bank in a claim case, a judgment was rendered in favor of the guano company, which judgment (having been affirmed) was satisfied by the Reynolds Banking Company paying the money into court; that the property for which the forthcoming bond had been given belonged wholly to the Reynolds Banking Company; that while the bank had previously interposed its claim to this property, the claim had been dismissed upon motion of the plaintiff in fi. fa. because of a defect in verification, and over the objection of the claimant, and that it had been unable to .renew its claim, for the reason that it had disposed of the’ property after obtaining possession thereof under the bond. It was prayed that the money thus held by the sheriff be turned over to the petitioners. To this petition the defendant demurred generally and specially, the demurrer was sustained, and the plaintiff excepts. Little, Powell, Smith & Goldstein, Jere M. Moore, for plaintiff. J. G. Jones, R. S. Foy, W. F. Weaver, for defendants.</p>

<p>Contempt; from city court of Dublin—Judge Flynt. March 8, 1919. ' '</p>

<p>/Where an action ,of trover for intoxicating liquor was pending at the t-irnp of the adoption of the act of 1917 which prohibits the possession of such liquor, and by subsequent amendment to the petition the plaintiff elected to recover only the value of the liquor at the time of the. conversion, a recovery was not. prevented by the adoption of that law. The court erred in dismissing the petition.</p>

<p>Action on guaranty; from city court of Cairo—Judge Willie. November 7, 1917.</p>

<p>1. Where an application for insurance is not attached to the policy nor referred to therein, it cannot be considered as a part of the contract, or introduced in evidence as such or to show that certain statements there made were contracted or warranted to be true (Civil Code of 1910, § 2471); but a failure to make the application a part of the policy does not prevent the insurer from pleading and proving that the insured made false and fraudulent statements as to the name and address of the doctor or doctors that attended him within a certain period, and that he thus fraudulently induced the insurer to issue the policy, and it was therefore void.</p> <p>2. A material representation is one that would influence a prudent insurer in' determining whether or not to accept the risk, or in fixing the amount of the premium in the event of such acceptance.</p> <p>3. Questions as to the truth and materiality of representations are generally issues of fact, for determination by the jury; but where all the testimony relating to a question of fact excludes every reasonable inference but one, the issue becomes an issue of law, for determination by the court.</p>

<p>Certiorari; from Fulton superior court—Judge Bell. March 33, 1918.</p> <p>C. E. Frazier brought suit in the municipal court of Atlanta against J. S. and C. B. Collins, alleging that he was an architect, and that the defendants employed him to prepare plans and speei-_ fications for a building to be erected by them, he agreeing to prepare the’ plans and specifications 'for a price that he would consider reasonable and that he thought would be satisfactory to the defendants; that about sixty days after the plans and specifications had been prepared and delivered to the defendants, he called on them for a payment, stating to them that his charge would be-one and three-fourths per cent, of the cost of the building, and the defendants then paid him $100 on account. The petition as amended alleged that the defendants were indebted to him in the sum of $437, the building having cost approximately $35,000. He after-wards amended the petition by adding a count based oU a quantum meruit. The defendants answered, setting up that they employed the plaintiff to. prepare plans, specifications, and estimates, he agreeing to prepare the same regardless of price, and to make the price satisfactory to them; that the work was done in a" very unsatisfactory manner, and they denied indebtedness. They subsequently amended their answer by setting up that the estimates which the plaintiff had agreed to prepare were not prepared according to contract, that the $100 paid to him was paid before they knew or had opportunity to know of the errors and mistakes in the estimates, and that, by reason of his failure to make the estimates with reasonable care and skip, he broke his contract and was not entitled to anything; and they prayed for a judgment against him' for $100. The trial of the case resulted in a verdict in favor of the plaintiff for $350. The defendants sued out certiorari, the certiorari was overruled, and they excepted to that judgment.</p>

<p>Action for damages; from Douglas superior court—Judge Bartlett. March 28, 1918.</p> <p>W. H. Swafford sued W. B. Keaton, M. M. Daniel, D. ~W. Daniel, J. T. Lee, and Thomas Carnes, in Douglas superior court, claiming damages in the sum of $10,000. Petitioner alleges as follows: He had been a member in good standing of Cold Springs Primitive Baptist Church, located in said county. On the Saturday before the first Sunday in April, 1917, a regular preaching day for said church, the Reverend Thomas Carnes announced the call of a church conference; whereupon, without any previous notice to petitioner, the clerk informed the said Carnes that a certain charge had been handed ip against the said W. H. Swafford, and in the presence of the public assembly, including petitioner, his wife, their sons and daughters, neighbors, and friends, as well as many members of said church, proceeded to read said charge, in form as follows: “After careful investigation of the report, we the undersigned Brothering of the Primitive Baptist Church at Cold Springs deem it our duty to present a charge against Brother W. H. Swafford for making what we consider a false affidavit to avoid paying the sum of $1.75 court cost in making an appeal in a lawsuit between him and J. T. Duncan from the Justice Court to the Superior Court. This being what is usually termed a pauper oath. Signed: W. R. Keaton, W. M. Daniel, D. W. Daniel.” While the paper thus read was signed by only three of the defendants, its preparation and publication as aforesaid was the joint and several action of all five of the defendants named, who, it is alleged, had previously conspired together to write and publish the same. Although petitioner then and there arose • and disclaimed •any previous notice that the charge would be preferred, and attempted to be heard in explanation and defense, and sought to have the matter investigated before it came up for consideration, the said Carnes would not permit any discussion in his behalf, and made the announcement that the church was going to exclude petitioner, and that any member of the church who voted to retain him would be likewise excluded: ITpon the vote being then and there taken six members voted to ^retain petitioner, and twenty-. eight, acting under the' intimidation of the said Carnes, voted to exclude him, whereupon the said Carnes announced that such six members would be given until the next regular meeting day to make acknowledgement for having voted to retain petitioner, and that in the event this was not done, they would be excluded. Petitioner alleges that the charge as prepared and read was knowingly and maliciously false; that it was intended by defendants to injure and damage .him, and that it resulted in the defamation of his character and standing, and exposed him to public hatred, contempt, and ridicule, all to Kis injury and damage in the amount claimed.</p> <p>The defendants filed a demurrer to the petition on the following grounds: “1. This court has no jurisdiction of said cause, same b'eing privilege matters growing out of and concerning the deliberations of a church body and tribunal, no property right being involved. 2. The petition shows on its face that this question and all matters complained of transpired in an ecclesiastic court and.tribunal, said tribunal being within its power, authority, and jurisdiction, and only a question of doctrines of a church and crime and discipline concerning and involving such questions, this court has no jurisdiction in such matters.” The court sustained the demurrer and dismissed the petition, and the plaintiff excepted.</p>

<p>A cause of action against the city is stated in the petition, from which it appears that the plaintiff, a child; was injured in the city, in the courthouse square belonging to the county, by the fall of an iron shaft on which he and other children were playing when it fell, one end of which - was lying on a slab at the edge of the court-house steps and the other end on a brick pier situated at the edge of a public street of the city; that it was placed there by the city authorities, who under an agreement with the county commissioners had charge of the court-house square and had been improving the square and keeping it in condition for use by the citizens of the city; that for years many people, including children, had been frequenting the square at the place where the injury occurred; that this shaft was alluring and attractive to children; that it was not braced or fastened, and slight pressure was likely fo cause it to fall, and that the city had notice of these facts. The court did not err in overruling the demurrer to the petition.</p> <p>(Certiorari granted by the Supreme Court.)</p> <p>Action for damages; from Warren superior court—Judge Walker. April 3, 1918.</p>

<p>Complaint; from city court of Madison—Judge Anderson. April 8, 1918.</p>

<p>Mortgage foreclosure; from city court of Floyd county—Judge Nunnally. May 4, 1918.</p>

<p>Certiorari; from .Chatham, superior court—Judge Meldrim. January 14, 1918. .</p> <p>An execution issued by a,justice’s court in the City of Sa/annah , was attacked on grounds which in substance were: (1) that the justice’s court was without jurisdiction to render a money judgment in a proceeding in which such a judgment was not sought, but which was merely an attempt to obtain specific performance under an alleged contract; and (2) that the judgment was not rendered on the regular day fixed for the holding of the court,, and the defendant, although it had filed with the justice a demurrer • to the jurisdiction of the court, had no notice of the hearing and did not waive notice. The affidavit of illegality was heard in the municipal- court of Savannah (the courts of the justices of the peace in Savannah having been abolished, and the municipal court having superseded them). The judge of the municipal court sustained the affidavit of illegality, quashed the fi. fa.,- and dismissed the levy'made under it. The plaintiff in fi. fa. brought the case to the superior court by certiorari, and in the petition set forth the grounds of the affidavit of illegality, and stated that “No facts were necessary to a determination of the issues involved, the questions presented being exclusively questions of law.” The petition complained of the failure of the judge of 'the municipal court to sustain a motion to strike the grounds of the affidavit of illegality, for the reason that they did not present "any sufficient matter in law why the execution should not proceed to satisfaction.” The judgment sustaining the affidavit of illegality,, dismissing the levy, and quashing the fi. fa., was complained of for the reason that “No one or all of the "several grounds of illegality presented any legal reason why the fi. fa. should be quashed, and plaintiff therein denied satisfaction thereof.” The chief judge of the municipal court, who tried the case, adopted for his answer to the certiorari “all the allegations of fact as contained in the petition.” No evidence was embodied in the petition. The record sent to the superior court in response to the writ of certiorari consisted of the answer of the municipal court, the judgment óf the municipal court, and the fi. fa. A copy of what purports to have been the original summons was with the record sent up, but was not referred to in the petition for certiorari or in the answer. On the hearing in the superior court the judge rendered the following judgment:</p> <p>“Usually in certiorari cases the issues are clearly presented by the petition and answer, but in the instant case there is so much confusion that it is difficult to reach a satisfactory conclusion. It appears that a suit, was commenced in the justice court of the 3d district, G. M., that this court was abolished, and that its duties devolved upon the municipal court of Savannah. It further appears that the justice court had rendered a judgment in favor of Bellinger against the insurance company for $80, besides interest and costs. I say ipferentially, because in the record before me there is no judgment, and I assume there was a judgment, because it is so recited in the execution. The execution was levied on April 7, 1917. and affidavit of illegality was interposed on April 13, 1917. The plaintiff in fi. fa. moved to dismiss the affidavit of illegality. It does .not appear except inferentially what action was taken in the court on this motion to dismiss. As the illegality was sustained, I must assume that the .motion to dismiss was overruled, although no order or judgment to that effect appears. . His honor Judge Bourke, on the 8th day of' August, 1917, rendered a judgment sustaining the affidavit of illegality, dismissing the levy, and quashing the fi. fa. To this judgment plaintiff in fi. fa. excepted, and these exceptions form the grounds of the petition for certiorari. To the writ of certiorari the court' below answers that ‘all the allegations of fact contained in the' petition are true.’ There is no exception or traverse to the answer, and I am now compelled to dig out of the debris of the abolished court and fifteen grounds of illegality the legal truth. I find among the papers what purports to be a copy of the original summons and exhibit. The order setting up the copy of the pleadings in lieu of the lost original is not signed by the judge, and it neither appears in the petition for certiorari nor in the answer thereto that this copy was ever established or introduced in evidence. How it gets into the papers before me does not appear, and yet the first six grounds of illegality are based on the alleged illegality of the judgment. . What that judgment was, or if any were rendered, only appears from the recital in the fi. fa., which fi. fa. is dated April 6, 1917, and recites that in the justice court for the third -district a judgment for $80 was rendered. No evidence whatever seems to have been introduced. The petition for certiorari avers: ‘2. No facts were necessary to a determination of the issues involved, the questions presented being, exclusively questions of law.’ As illustrative of the almost inextricable confusion which exists, look at the.7th ground' of illegality, which is: ‘Said justice court was not' in session at the ‘time said alleged judgment was rendered.’ This ground raises a great, big eontroling issue of fáct. The burden was on the defendant in fi. fa. to sustain by evi'dence'this averment, and yet I am told by the plaintiff in fi. fa. in his petition for certiorari that ‘no facts were necessary to a determination of the.issues involved.’ I can only understand from this that it was conceded in the .court below that the ground in the affidavit of illegality, that the ‘justice court was not in session at the time said alleged judgment was rendered,’ is true. It is toó clear for argument that justice courts must be held at stated times and places, and if the court that rendered the judgment was not in session at the túne when the judgment was rendered, then such judgment is void, and illegality is the proper defensive remedy. A consideration of the several grounds of'illegality is not necessary. If the affidavit is good on any of the grounds, that is sufficient. The burden is on the plaintiff in certiorari to show affirmatively that the judgment of the court below should be reversed, and the error committed must be alleged in the petition. It has not been so made to appear. The certiorari is overruled and the judgment affirmed. [Signed] Peter W. Meldrim, Judge, E. J. C.,' G-a. January 14; 1918.”</p> <p>In the bill of exceptions to the judgment overruling the certiorari are-grounds based upon the-theory that the judgment itself shows that it was arrived at from consideration of certain pleadings in the case which were not a part of the record in the certiorari proceeding; and_ that the judgment itself indicates that' it rests upon a conceistion of the facts in the case which is not supported by any evidence contained-in the certiorari record; and finally it is alleged that “No one or all of the several grounds of illegality constitute any legal reason why the fi. fa. should have' been quashed.” The plaintiff in error specifies as material to a clear understanding of the errors complained of: the fi. fa., with all entries thereon; the affidavit of illegality; the petition for certiorari, with all entries; the.answer thereto; the judgment on the certiorari; and the alleged copy summons of the justice’s court from which the fi, fa. issued.</p>

<p>Action for damages; from Chatham superior court—Judge Meldrim. April 25, 1918.</p>

<p>1. - The demurrer to that part of the answer in which a credit on the account was claimed, for certain boxes alleged to have been charged but not received, should have -been sustained, as no such item was included in the account attached to the contract sued upon.</p> <p>2. The ’court, erred in allowing the defendants to amend their plea by setting up an agreement at variance with the written contract sued upon, since the amendment failed to allege explicitly that the additional agreement was in writing or that it was made after the execution of the written contract.</p> <p>3. The evidence failed to show that certain credits allowed by the jury by virtue of an alleged agreement between the purchaser of the goods and one who was described as a “representative” of the plaintiff were authorized', there being no testimony tending to show that the alleged representative had authority to modify the written contract or make the' alleged agreement. The verdict returned necessarily depended upon the allowance of these credits, and was therefore unauthorized; and the court erred in overruling the motion for a new trial.</p>

<p>Action for damages; from city court of Sandersville—Judge Jordan. April 33, 1918.</p>

<p>Complaint; from city court of Sandersville—Judge Jordan. April 23, 1918.</p>

<p>1. This case has been transferred back to this court by the Supreme Court; under the ruling of that court that the assignments of error involving constitutional grounds were too indefinite to be considered.</p> <p>2. The evidence demanded a verdict in favor of the plaintiff; and the special ground of the motion for a new trial, assigning error upon the court’s refusal to charge the jury as requested, is without merit.</p>

<p>Certioiari; from Fulton superior court—Judge Bell. March 26 1918.</p>

Certiorari; from Fulton superior court—Judge Bell. April 1, 1918. Exception is taken to a judgment of the superior court, overruling a certiorari in a case from the municipal court of Atlanta.

<p>One who tacitly permits himself to be held out to the public as a partner, though he in fact has no interest in the partnership, will be estopped from denying his connection with the firm, and will be bound, where the opposite party was misled by the putative status and acted thereon. Civil Code (1910), § 3157; Bowie v. Maddox, 29 Ga. 285 (74 Am. D. 61) ; American Cotton College v. Newspaper Union, 138 Ga. 147 (4) (74 S.E. 1084); Mims v. Brook, 3 Ga. App. 247 (59 S. E. 711) ; Meinhard v. Bedingfield Co., 4 Ga. App. 176 (61 S. E. 34). Thus, where a pei'son knows that his name is being used as that of a member of a firm, and that he is being held out as a partner in a particular business, he is not only under the duty to prohibit such use, but it is also incumbent upon him to take such steps as an ordinarily prudent person would take in the circumstances to notify the public, as well as individuals to whom he knows that he has been so held out as a partner, that he is not a. partner. 30 Cye. 393, 394.</p>

<p>Complaint; from Haralson superior court—Judge Bartlett. April 15, 1918.</p>

<p>Action for damages; from Laurens superior court—Judge Kent. April 25, 1918.</p>

<p>Trover; from DeKalb superior court—Judge Smith. May 6 1918.</p>

<p>Complaint; from city court of Hall county—H. H. Perry, judge pro hac vice. May 1, 1918.</p>

<p>Action for damages; from Bibb superior court—Judge Mathews, June 7, 1918.</p>

<p>Exceptions -to auditor’s report; from city court of Kichmond county—Judge Black. May 2, 1918.</p>

<p>Complaint; from city court of Nashville—Judge Christian. June 8, 1918.</p>

<p>Action for damages; from Whitfield superior court—Judge Tarver. June 6, 1918.</p>

<p>Certiorari; from Fulton superior court—Judge Pendleton. May 38, 1918.</p>

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

<p>Action on contract; from city court of Atlanta—Judge Reid. Hay 6, 1918.</p>

<p>Certiorari; from Jones superior court—Judge Park. June 1, 1918. .</p> <p>Miller signed a contract for the purchase of certain land fol $537, for which sum (except a cash payment of $3) it was provided therein that he should give certain promissory notes upon the tender and delivery of a deed conveying the property to him udthin ninety days. The deed was tendered and he was requested to sign the notes, within the time stated, but he refused to accept the deed or sign the nqtes, and suit for the amount stated in the written contract was brought against him in the city court of Gray by Walker, the other party'to the contract. The foregoing "facts appear from the allegations and admissions in the pleadings. The nature of the defense set up in the defendant’s plea appears from his testimony, which was the only evidence introduced on the trial. He testified: “I was at my home . .and was busy, and a man who said he was named Mr. E. C. Potts came up and said he was working for a Mr. Walker in Macon, and they wanted to sell me some lots. I told him I was very busy and didn’t need any lots, , . that I was already involved and owed more than I could pay.. . . . He said it was a big thing, that some fine streets and parks would be there,-—made beautiful pictures in talking. . . I told him I had a house and lot at Haddock, that if he would sell this for $1,000 I would give them a commission of $50 and would buy the lots, or some of them. . . We got in his automobile and went to Haddock, and he looked at the property and said he could sell it; then we went on towards Macon-, out to see the lots. . . . I am ignorant, am not educated at all, can just read and write a little bit. They told me I could sign up, and I still told them I could not buy any lots, and would wait until they sold my house and lot, and then I would, take them and pay for them. They did not read over the paper to me, nor did I ask them to read it, because they talked so fair; so it seemed to me then. They told me the paper was nothing but an option to buy if I wished, and did not bind me to anything if I did not want to buy, but if I would put up $3 and sign the option paper, then at the end of ninety days, if I decided to buy, I could, and that if I then decided I did not want the lots, I would only lose $3. I relied absolutely on what they told me, and the reason I signed the paper was because I thought I was signing an agreement whereby I could buy or not if I wanted to, but I never did think I was signing a paper like this one, and never knew it until about three months afterwards when they came out to my house and said they had' a deed to the lots for me. . I never would have signed any such paper except they told me a different thing, that it wasn’t a thing in the world but an- option, at first. I did not read the paper when they told me to sign, for I thought they were telling me the truth about what it was. . They never sold my Haddock property, and I never heard that they tried to sell it. ! . I am ignorant and have never been to school, and can’t tell much about reading and writing.” The court directed a verdict against the defendant; certiorari was sued out; the certiorari was overruled, and he excepted.</p>

<p>Complaint; from Grady superior court—Judge Harrell. June 29; 1918.</p>

<p>Complaint; from city court of Atlanta—Judge Reid. June 14, 1918.</p>

<p>Indictment for possession of liquor; from Forsyth superior court—Judge Morris. March 4, 1918.</p>

<p>Assumpsit; from city court of Savannah'—Judge Freeman. October 8,. 1917.</p> <p>Suit was instituted by the Bank of Quitman as payee and holder of a draft for $1,350, drawn by Thompson on the defendants,' Dixon & Company, who unconditionally accepted it in writing before it was discounted by the plaintiff. This acceptance was the last of a series of similar transactions. The defendants contend that they should not be held liable on their acceptance, for several reasons, in substance as follows: (1) Because it was merely for accommodation and without any benefit flowing to them, and that this was known to the plaintiff when it discounted the draft. This ground of defense is not, however, relied upon by counsel, who state that it was made only by way of inducement, in order to show the relationship between the parties. (3) Because when Thompson deposited with the plaintiff the proceeds of the draft, the plaintiff knew; both by virtue of the previous course of dealings and by the statement then made to it by Thompson, that this was done with the understanding and agreement that thesamount of the draft was to be applied in part payment of a check for $1,500 which Thompson was to draw in favor of the defendants, to cover their acceptance and payment of a previous draft in the latter amount, and yet, despite such knowledge and understanding, the plaintiff applied these funds and other sufficient funds, later deposited by Thompson for the same understood and stated purpose, to the payment of other checks drawn by Thompson. (3) Because the plaintiff failed to pay the said $1,500 cheek drawn on it by Thompson in favor of the defendants, although it had sufficient funds of Thompson for that purpose at the time of its presentation. (4) Because the plaintiff failed to pay a draft drawn on Thompson by the defendant with the said check attached, as the plaintiff had promised and agreed in writing to do, but applied the funds of Thompson held by it, and which were sufficient for -that purpose, to the payment of other claims against Thompson. .</p> <p>The evidence shows that Thompson had been engaged for a number of years in the sawmill business, and had shipped a large part of his lumber to the defendants; and that during this period an arrangement between Thompson and the defendants, and for the accommodation of Thompson, was in operation, whereby Thompson was accustomed to draw sixty-day and ninety-day drafts upon them, which they would accept, and which Thompson would then discount with the plaintiff, and which' when due would be paid by the acceptors giving their check therefor, and that Thompson, for the purpose of. settling the obligation thus raised in their favor, would send to them his check on the Bank of Quitman for a like amount, and, in order to take care of the chedk thus sent to them, would draw another draft upon them, but for a less amount, which would also be accepted by them, and which would in turn be discounted by Thompson with the plaintiff bank, and the proceeds thereof placed in the said bank to the credit of Thompson’s general account; and that Thompson would then have on deposit or else would place on deposit a sufficient amount to cover the difference between the amount of his check and the proceeds of the second draft. There was no direct testimony from either the defendants or Thompson that the plaintiff had knowledge that the last acceptance made by the defendants, and on which the suit is •entered, was for the purpose of providing a portion of the funds whereby Thompson would be enabled to discharge his previous indebtedness to the defendants; while on the other hand the cashier of the plaintiff bank testified positively and unequivocally that neither he nor the bank had such knowledge; and the judge trying the case without a jury, was therefore authorized-to find that this was true, and that so far as the bank knew or was informed, each of these transactions was a separate and distinct transaction, and bore no relation to each other. There was no evidence to sustain the allegations of the defendants’ answer that-the drafts on other’ persons, deposited by Thompson with the plaintiff bank, were deposited with the agreement, direction, or understandihg that the proceeds should be applied to the payment of the $1,500 check drawn by Thompson in favor of the_ defendants and upon the plaintiff bank; nor was there any evidence that Thompson subsequently directed the bank to pay this check or the defendants’ draft out of these or other funds. The evidence fails to disclose that there was on deposit with the said bank, ‘to the credit of Thompson,, sufficient funds to pay the $1,500 check or the draft at the time of their several presentations. The letter and telegram relied upon by the defendants to show a promise on the part of the bank to pay from these funds the defendants’ draft on Thompson are as follows: ,</p> <p>(Telegram.) “Quitman, Ga., October 13th. “J. M. Dixon & Co., Savannah, Ga. John E. Thompson has deposited enough items here for collection to make your draft for fifteen hundred good. Think' can remit in few days, as soon as returns are had. The Bank of Quitman.”</p> <p>The letter was dated October 21, 1914, addressed to the Exchange Bank of Savannah, and was as follows: “I have yours of the 20th relative to draft of J. M. Dixon & Company on Jno. E. Thompson for $1500.00. I have been holding this draft here trying to collect it. Mr. Thompson has been depositing items for collection and we put them through with some paid and a good many of them being returned unpaid. We have worked the collected balance up to within a few hundred dollars of having enough to take up the draft. We may get enough to-day to finish it, and if so will remit it this week, possibly to-day or to-morrow, depending upon just what we get from him to-day. We are protecting balance collected against anything else. We hope this is, satisfactory. [Signed] H. M. Stubbs, Cashier.”</p> <p>Upon the trial of the case the court rendered the following judgment: “The above cause was submitted to the court for its determination (without the intervention of a jury) of the law and the facts. The objections to testimony are all overruled. I think the testimony shows that the paper sued on was an accommodation paper. I think also that it shows that plaintiff was not advised of this fact at the time it was discounted. But these facts do not affect the respective rights of the parties involved here. Some of the questions propounded to Thompson were leading, but notwithstanding this, I think the objections on that ground were properly overruled. In my judgment the defense and counterclaim of James M. Dixon & Co. are not Sustained by the record. An agreement to which the bank was a party, as contended for by the defendant, is not established by the evidence. It is therefore considered, ordered, and adjudged that the plaintiffs above named do recover from the defendants above named the principal sum of $1,250 principal, with interest thereon at 7% per annum from December 11, 1914, and also $1.50 protest fees, 25 cents revenue stamp affixed to certificate of protest, and also all costs of court, without-offset or deduction on account of the defensive matter and counterclaim set up by defendants.”</p>

<p>Complaint; frond city court of Waynesboro—Judge W. H. Davis. February 25, 1918.</p>

<p>It does not, as a matter of law, appear from the petition as amended that the injury resulted from failure.on the part of the plaintiff to exercise ordinary care. The court erred in sustaining the general demurrer and dismissing the ease.</p>

Action for damages; from Camden superior court—Judge High-smith. April 3, 1917.

<p>1. Where a renting agent, acting for the owner of the property, enters into a contract of lease with a tenant, it is not competent to engraft thereon, without the consent of the owner, stipulations relating to'the mutual obligations arising out of the contract between the agent and the owner, so as to bind the latter thereby, since stipulations of this character are foreign to the subject-matter of the lease contract and do not concern the parties to that agreement.</p> <p>2. But where, at the instance of the agent and without the practice of any fraud upon his part, the owner of the property, with actual knowledge that such terms and provisions are in the contract, enters his own endorsement upon the contract of lease as signed by the agent and by him presented to the owner for approval, then the stipulations referred to become mutually binding upon both the agent and the owner as an agreement thus arrived at by and between them.</p> <p>3. Where one who occupies such a confidential or fiduciary relationship as agent presents to his employer for approval such a contract made in the employer’s behalf with a third person and relating to the business and purposes of his employment, but also containing a stipulation foreign to the subject-matter of the lease and concerning and effecting the rights and interests of the employer and the agent as to matters arising out of the contract, the employer will not be bound to the agent by his approval of the stipulations thus embraced in the writing, unless he had actual knowledge that it contained such provisions.</p> <p>4. “Generally, an agency is revocable at the will of the principal. The appointment of a new agent for the performance of the same act, or the death of either principal or agent, revokes the power. If, however, the power ie coupled with an interest in the agent himself, it is not revocable at will; and in all cases the agent may recover from the principal, for an unreasonable revocation, any damages he may have suffered by reason thereof.” Civil Code (1910), § 3575 (1). The interest of the agent, above referred to, must lie in the subject-matter of the agency, and not merely in the profits which are to result from the exercise of the power;' that is to say, in a case like the instant one, the agent must have an interest in the contract of rental, and not merely in the contract of agency by virtue of which he is to be compensated for his future services in the collection of the rents. The work and expense of an authorized agent in finding a tenant and securing a lease could-be taken as sufficient to establish such an interest in the contract of rental.</p> <p>5. While, as a general proposition, all dioses in action arising upon contract and involving property rights may be assigned so as to vest title in the assignee (Civil Code of 1910, §§ 3653, 3654), there is a well recognized exception to this rule, which applies in those instances where the contract involves a relation of personal confidence, such as to show that the party conferring the rights must necessarily have intended them to be exercised only by him upon whom they were actually conferred. Tifton &c. Ry. Co. v. Bedgood, 116 Ga. 945 (43 S. E. 257); Cowart v. Singletary, 140 Ga. 435, 446 (79 S. 1. 196, 47 L. R. A. (N. S.) 621, Ann. Cas. 1915A, 1116); 5 C. J. 880, §§ 46, 47. But even though the subject- matter of a contract might of itself in a sense indicate that it was intended to be personal in its nature, the parties thereto can nevertheless by the express terms of the agreement manifest a different purpose and intent (5 C. J. 875) ; and thus where the contract is within itself and by its own express terms made assignable, a contrary purpose will not, as a matter of law, be set up and enforced, unless from a consideration of the entire instrument such a contrary construction is clearly demanded. Where the agreement in effect provides that the service may be performed either by the contracting party himself or by such other person as the contract may be assigned to, in order that a construction contrary to such expressed intent can as a matter of law be inferred it must appear, from the nature of the contract, that the. performance of tlie obligation by another would be essentially different in result from what had been contracted for.</p> <p>5. Where a rent contract, after having been procured and effected at the expense and trouble of an agent, has been approved for him by the owner, with actual knowledge on the owner’s part of a stipulation therein providing that a stated commission from the rent shall go from him to the agent, and stating that the rent shall be paid to the agent named, “its successors or assigns,” an assignee of the contract, upon his acceptance thereof, will ordinarily assume the burdens and acquire the benefits provided for by the terms of the agreement See Alden v. Frank Improvement Co., 57 Neb. 67, 69 (77 N. W. 369).</p>

<p>1. Where less than tho amount of an execution is received from one of joint defendants therein, under an agreement made or authorized by the plaintiff that the payment thus received shall relieve that defendant from further liability, the agreement will discharge the other defendants; but such an agreement by a sheriff, made without authority from the plaintiff, will not have that effect.</p> <p>2. The doctrine of ratification is not applicable against a person as to an act of one who did not assume to act in his name or under authority from him.</p>

<p>Action for damages; from Walker superior court—Judge Wright. April 26, 1918. (See 144 Ga. 716.)</p>

<p>Complaint; from city court of Millen—Judge Dekle. April-26, 1918.</p>

<p>Libel; from city court of Way cross—Judge McDonald. December 31,1917.</p> <p>1-3. The matters ruled upon in paragraphs 1, 3, and 3 of the decision are sufficiently stated therein.</p> <p>4. The 5th ground of the motion for a new trial is that the court erred in charging: “The relation of attorney and client has always been regarded as one of special trust and confidence. The law therefore requires that all the dealings between an attorney and his client shall be characterized by the utmost fairness and good faith, and it scrutinizes with great closeness all transactions had between them.” The exception taken is that this “was calculated to lead the jury to believe that in the trial of the issue presented to them, they could find for the -defendant upon a weaker showing of justification than would be required if the plaintiff had not been a lawyer.”</p> <p>5. The 6th ground is that the court erred in charging: “If Mr. Estes was not guilty of the matters and things set up and charged against him in that circular, and Mr. Thomas [the defendant] published that circular, and it was for the purpose of injuring and damaging Mr. Estes, then Mr. Estes, the plaintiff in this case, would be entitled-to recover against him in such amount as you think in your judgment would be fair, just, and proper.” This is alleged to be error because “if the charge was untrue, the law implies malice, no matter what the. purpose of the defendant wasf”</p> <p>6. The 7th ground is that the court erred in'charging: “The existence of a fact testified to by one positive witness is to be believed, rather than that such fact did not exist because many witnesses who had the same opportunity of observation swear that they did not see or know of its having transpired.” (Civil. Code of 1910, § 5751.) It is alleged that this instruction “was not applicable to any issue or circumstance in the case, and was calculated to mislead and confuse the jury.”</p>

<p>Confiscation; from city court of Miller county—Judge Geer. June 10, 1918.</p>

Certiorari; from Fulton superior court—Judge Pendleton. June 4. 1918. A possessory warrant for a certain motor-truck was sued out by Brigman Motors Company against Mathewson and Lane, and on the trial of the case in tbe municipal court of Atlanta possession was awarded to the plaintiff. .Certiorari was sued out by the defendants, the superior court overruled the certiorari, and they excepted.

Trover; from city court of Dublin—T. E. Hightower, judge pro hac vice. June 12, 1918. Witherington bought of Ilodges two bales of cotton and stored them for hire with the warehouse company. Subsequently the warehouse company was sued in bail-trover for the cotton by Summerlin, who claimed to be the true owner and entitled to possession of it by reason of the relationship of landlord and cropper existing between himself and Hodges.

<p>Trover; from Crawford superior court—Judge Mathews. June 19, 1918.</p>

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

<p>Complaint; from Pulton superior court—Judge Ellis. April 4, ,1918. '</p>

<p>Levy and claim; from Screven superior court—Judge Hardeman. March 21, 1918.</p>

Conviction of manslaughter; from Wilcox superior court—Judge Crum. September 3, 1918. The charge referred to in. the decision was as follows: “ Certain evidence as to alleged declarations of the deceased in this ease has been admitted for yonr consideration. Those alleged declarations are not admitted for your consideration as dying statements, and should not be considered by you as such.

<p>Conviction of manslaughter; from Cobb superior court—Judge Morris. May 11, 1918.</p>

<p>Accusation of misdemeanor; from city court of Hazlehurst— Judge Knox. August 29, 1918.</p> <p>The accusation was in two. counts, charging respectively the offenses of keeping a lewd 'house and keeping a disorderly house, as defined in sections 382 and 383 of the Penal Code (1910). There was a general. verdict of guilty. From the evidence it appeared that the defendant was a farmer, living on his farm with his family, in which were two daughters. He lived there three months, and while he lived there the house had the reputation of being .a lewd house; but the witnesses testified that they did not see any act of lewdness there. “During all the time he staid there a great many automobiles with men in them went there; day and night. It was a continual thing. ” Some of the men were married and some single. Sometimes the cars would run back and forth there most of the night. Seven automobiles'were seen standing in front of the gate one morning about sunup. It was testified that two men went there one night, and after they had been in there a little time the witness “saw a light in the house, and they stayed there a little while and the light went out, and they came out and got in the automobile and went away.” Another witness testified: “I took King and Highsmith out there. They went in and sat down on the porch and talked to tbs' girls for a while, then Highsmith and one of the girls went out into the yard and went around the house and came in the back way; they tipped across the porch and'went into a back room. Then King and the other girl got up and went out into the yard and went around behind the house. Both couples were gone about fifteen or twenty minutes, and when they came back the boys said they were ready to go, and we left. It was at night and dark.” A few nights later the witness saw two men lying on a bed in the house, drunk, and they asked if he would come and get them in his car about daylight the next morning. One of these men was seen at another time in a swing on the porch with his arm around the back of one of the girls. Men would sometimes take the girls out in cars. Some of the men who went there appeared to be drunk. Cursing and loud talking by men leaving the house and by men'going to it were heard in the neighborhood. Pistol shooting was also heard there. The cursing and pistol shots caused a neighbor to leave her home one night because she was afraid. Fourteen of the neighbors went to the house on the third day after the defendant had moved into it and told him that too many people visited there, and they could not put up with it in that community, and that he would have to control it or move, and he said he would like to control it and would like to have them help him control it. No testimony was introduced for the defendant. His statement at the trial was that several people came to his house, but they did not mistreat him, and if his girls did wrong, or anything wrong was carried on around his place, he did not know of it, and he did the best he could.</p>

<p>One charged with buying or receiving goods, knowing them to have been stolen, can not be indicted and punished until after the conviction of the principal offender, or until it appears that the principal offender can not-be taken so as to be prosecuted and, convicted. It follows that the principal and the “accessory after the fact” can not be jointly indicted, where the prosecution is under § 168 of the Penal Code of 1910.</p>

<p>Accusation of possession of intoxicating liquor; from city court of Carrollton.—Judge Beall. August 17, 1918.</p>

<p>Action for damages; from Fulton superior court—Judge Ellis. December 5, 1917..</p>

<p>Indictment for sale of liquor, etc. from Taylor superior court— Judge Howard. June 7, 1918.</p>

<p>Action on insurance policy; from Colquitt superior court—-Judge Thomas. April 10, 1918.</p>

<p>Action, for damages; from Fulton superior court—Judge Reid .presiding. April 7, 1918.</p>

<p>Rule; from city court of Eastman—Judge Griffin. May 1, 1918.</p>

Complaint; from Baker superior court—Judge Harrell. March 18, 1918. Boberts, Johnson & Band sued B. L. & W. H. Hall for $315.65 alleged to be due on an open account, and the defendants filed an answer at the appearance term. The answer, after admitting that the defendants were residents of the county, was as follows: “2.

<p>1. “In order for a servant to recover for an injury on the ground that it resulted from his compliance with a direct order of his master, or of his master’s representative, the servant must show that the order was a negligent one.”</p> <p>2. In this case the injury received by the plaintiff was the result of the negligence of a fellow servant, and it was error to overrule the motion for a new trial.</p>

<p>Action on contract; from Fulton superior court—Judge Pendleton. April 9, 1918.</p>

<p>Action for damages; from Fulton superior court—Judge Bell. May 3, 1918.</p>

Action for damages; from Troup superior court—Judge Terrell. April 10, 1918. . ‘ The plaintiff sought to recover the value of the life of her hus-' band, who it was alleged was killed by the negligent operation of the defendant company’s cars at and upon a public crossing in the city of LaGrange. It was admitted by her counsel upon the trial that if the deceased was not upon the public crossing at the time he was killed, she could not recover.

<p>Complaint; from Terrell superior court —Judge Worrill. May 80, 1918.</p>

<p>Action for damages; from city court of Columbus—Judge Tigner. June 4, 1918.</p>

<p>Certiorari; from Berrien superior court—Judge Thomas. May 4, 1918.</p>

<p>(Certiorari granted by the Supreme Court.)</p> <p>Complaint; from Wilkes superior court-r-Judge Walker. November 20,1917.</p>

<p>Trover; from Newton superior court—Judge Smith. April 17, 1918.</p>

<p>Accusation of larceny; from city court of Jefferson—Judge Mahaffey. March 23, 1918.</p>

<p>Conviction tor manslaughter; from Dooly superior court—Judge Crum. April 23, 1918.</p>

<p>Conviction of manslaughter; from Floyd superior court—Judge Wright. May 10, 1918.</p>

<p>Action for damages; from Whitfield superior court—Judge Tarver. May 7, 191&</p>

<p>Trover; from Colquitt superior court—Judge Thomas. May 4, 1918.</p>

Indictment for misdemeanor; from Eloyd superior court—Judge Wright. September 24, 1918.

Certiorari; from Putnam superior court—Judge Park. September 16, 1918. Will Griffin, alias Beck, was convicted in the county court under an indictment which charged that, with intent to cheat, swindle, and defraud M. C. Carnes, he secured from Carnes $1 by representing that he had in his possession five cords of cord wood, and by agreeing to sell and deliver the wood to Carnes, when in fact the wood was not in his possession.

<p>Indictment for murder—conviction of voluntary manslaughter; from Calhoun superior court—Judge Harrell. August 17, 1918.</p>

<p>1. Under the act passed by the General Assembly of the State of Georgia at its extraordinary session held in March, 1917, pure alcohol for medicinal purposes can not be legally shipped from one point to another, both of which are in the Statq of Georgia.</p> <p>2. Under .the law referred to. above, the act of transporting aleoholie liquors is a separate and distinct offense from that of having,' controlling, and possessing such liquors.</p>

<p>Indictment for carrying intoxicating liquor; from Mitchell superior court—Judge Harrell. May 24, 1918.</p>

<p>Conviction of assault with intent to murder; from Troup superior court—Judge Terrell. September 25, 1918.</p>

Affidavit of illegality; from Baldwin- superior court—Judge Park. December 39J1917. Application for certiorari to review this decision was denied by the Supreme Court.

<p>Complaint; from Gordon superior court—Judge Tarver. February 25, 1918.</p>

<p>Action for damages; from city court of Elberton—Judge West presiding. March 30, 1918.</p>

<p>Complaint; from city court of Macon—Judge Guerry. March 27, 1918.</p>

<p>There is'no evidence to support the finding and judgment in favor of the plaintiff, and the court erred in overruling the motion for a new trial.</p>

<p>Action on insurance policy; from Colquitt superior court— Judge Thomas. May 4, 1918.</p> <p>Mrs. Mary Sorrels sued the Pennsylvania Fire Insurance Company for a sum alleged to be due on a policy of fire insurance. The petition alleged: The defendant made to the plaintiff a policy of fire insurance for $3,000, a copy of which is attached to the petition. The policy became effective on December 12, 1916. For twelve months next preceding that date the property described in this policy (designated as Policy No. 1305) was insured by the defendant under Policy 1215, which expired simultaneously with the taking effect of this policy. This policy was issued to the plaintiff and retained by the defendant, as is shown by a letter written by Harper & Clark Company, agents of the defendant at Moultrie, Georgia, a copy of which, attached to the petition, is as follows: “Moultrie, Georgia, December 14, 1916. Mrs. Mary Sorrels, c/c Mr. A. S. Dalton, Moultrie, Ga. Dear Madam: We are herewith enclosing bill for balance due, $57.80. You will note that this covers the policy written December 13, 1915. This policy expired on December 13, 1916, and in order-to protect you fully we have rewritten it so as to protect you in case of fire. However, we cannot afford to deliver the policy unless this bill is paid at once. We have been to see Mr. Dalton, but have been unable to find him at his office. We have been carrying this bill for quite a while, and trust that you will give it your prompt attention; if paid at once, we will make no charge for interest for the many months we have- carried it, and if you will send us a check, we will wait on the new policy until February 1, 1917, for the money. Trusting you will give this your prompt attention, as we can not let the matter stand in its present shape, very truly yours, Harper & Clark Co.,- by Park Harper. We await your prompt advice.” The plaintiff was not indebted to the defendant in the sum of $57.80 on the date that the letter was written, nor in any other sum on account of the previous policy, No. 1315, or any other policy; for the plaintiffs, on September 36, 1916, paid .to the said Harper & Clark Company, agents of the defendant at Moultrie, Ga., the full amount due by her as a premium on the said policy No. 1315, and was not indebted to the defendant on that policy or otherwise. The plaintiff, in two or three days after the receipt of the said letter, called the attention of the defendant’s said agents, Harper & Clark Company, to the fact of payment of the premium due on that policy, on September 36, 1916, and promised the said agents that she would pay the premium on the new policy, No. 1305, on or before February 1, 1917, as stipulated in the said letter. The property insured in the said policy was destroyed by fire on January 8, 1917. The petition contained allegations as to the plaintiff’s subsequent tender of the premium on the new policy, refusal of the tender, demand for thé policy, demand for payment of the sum alleged to be due thereon, refusal of these demands, etc.</p> <p>At the trial of the case counsel for the defendant moved orally to dismiss the petition, on the ground that no cause of action was set forth. The motion was overruled, the trial resulted in a verdict for the plaintiff, the defendant’s motion for a new trial was overruled, and exceptions to the rulings stated were duly taken.</p>

<p>Indictment for burglary; from Muscogee superior court—Judge Howard. September 19, 1918.</p>

<p>Action for damages; from Baldwin superior court—Judge Park. January 14, 1918.</p> <p>Mrs. Leah V.' Hearn sued the Texas Company, alleging, in substance, as follows: that the petitioner is the mother of Cline Hearn, who in his lifetime contributed to her support; that on December 29, 1916, the said Cline Hearn, then a minor 19 years old, was employed by the defendant, and, while engaged in the discharge of his' duties, was killed as a result of the negligence of defendant and its agent, Homer A. Massey; that prior to December, 1916, the said agent employed the deceased to drive a truck and' to sell and deliver gasoline; that said agent furnished the deceased, for use by him in performing his duties, an' automobile truck and a number of ten-gallon oil cans, to be carried on said truck for the transportation of oil and gasoline; that the platform of the truck upon which the cans. stood was 40 inches above the surface on which the truck ran, and the cans were 24 inches high; that it was Hearn’s duty to carry these cans, filled with gasoline and oil, to the point of delivery, and take them from the truck and pour their contents info the tanks of dealers to whom he sold; that a Humber of the cans furnished Hearn had defective covers, in that the covers did not fit the opening of the cans tight enough to prevent their falling out when they were tilted; that on the date of his death Hearn drove his truck to Gordon, and there made a sale of gasoline for his employer to a dealer, and, in taking the can of gasoline from the truck for the purpose of-delivering it, tilted the can,” and the defective cover came off and gasoline poured out over the said Hearn’s body and clothing; that within five minutes after making this delivery he was in the drug store of Dr. Evans at Gordon, standing at the counter near a cigar-lighter, which was burning a small flame, and standing more than 12 inches therefrom, when the fumes of gasoline from his clothing caright fire from the flame, and the fire was communicated to his gasoline-soaked clothing, and the burns therefrom caused his death; that Cline Hearn never handled gasoline until after' his employment by the defendant, which was less than four months prior to his death; that he had no. knowledge of the danger attending the handling of the same, and that he had no knowledge of the inflammable nature of its fumes, while the defendant well. knew of the dangers incident to his employment, and the inflammable nature of the gasoline; that the defendant well knew the youth, inexperience, and lack of knowledge of Hearn about his business; that the track ánd cans furnished Hearn were defective and dangerous tools, in that Hearn was only 5 feet,'4 inches tall, the floor of the truck was 40 inches above ground, the top of the can 24 inches above the floor of the truck, and the cans, when full, weighed more than 100 pounds, and, in order for Hearn to remove the cans from the truck, it-was necessary to .tilt the can until he could encircle it with his arms; and that Hearn had no opportunity to learn of the dangerous character of the tools. It is alleged that the defendant was negligent in furnishing Hearn with dangerous ■ machinery and tools, with,a machine whose floor was too high for him to.safely remove theyefrom cans of the character furnished him filled with gasoline, with cans having defective covers that permitted the spilling of gasoline on his body and clothes, with a truck and cans which necessitated the tilting of the cans in unloading; in failing to warn him of the dangerous character of the machinery and tools furnished him, of the dangers attending his duties, of-the dangers of spilling gasoline upon his clothes, of the inflammable character of the fumes of gasoline, and in failing to instruct him to use the machine furnished and handle the gasoline in a safe manner.</p> <p>‘Demurrers, both general and special, were overruled, and the defendant excepted:</p>

<p>Action on contract; from city court of Albany—Judge Clayton Jones. February 13, 1918.</p>

<p>Where a vendor of land executed to the vendee a bond- for title and delivered to him the possession of the land, and thereafter the vendee rented the land and transferred the rent contracts to the vendor, the only legal effect of the transfer was to place the title to the rent contracts in the transferee and “carry the liens as a necessary incident thereof,” as provided in the Civil-Code of 1910, §§ 3345, 3346, and with the right in the transferee to enforce the liens arising under the contracts as provided in § 3347 of the code.</p> <p>(a) The fact that the transferee of the rent contracts was also the vendor of the land did not cancel or -rescind the original contract of sale, or create the relation of landlord and cropper between the vendor of the land and those cultivating it under contract with the vendee, nor did it place the title to any portion of the crop in the vendor.</p>

<p>Conviction of manslaughter; from Talbot superior court^Jndge Howard. March 33, 1918.</p>

<p>Action on insurance policy; from city, court of Waycross—Judge Crawley. March 19, 1918.</p>

<p>Complaint; from Pike superior court—Judge Searcy. March 16, 1918.</p>

<p>1. Demand by the plaintiff for the property involved was not necessary before an action of trover for a machine in the defendant’s possession, sold to him by the plaintiff, under a contract by which title to it was retained in the vendor until full payment of the purehase-pricei where ' the defendant refused to pay the agreed pr-ice in full, contending that the property was worthless to him.</p> <p>2. The value of the property was shown prima facie by the agreed price: in the contract of sale. The direction of a verdict for that amount, less payments made, was authorized, under the pleadings and the evidence.</p>

<p>1. Defects in machinery purchased were no ground for defense to an action on promissory notes for the purchase-money, where a written agreement between the parties, made at the time of the execution of the notes, provided that no complaint should be made by the purchaser after being in possession of the machinery thirty days, and he was in possession of it thirty days under the contract, and it did not appear that he made any complaint as to the machinery during that time.</p> <p>2. The request to award damages against the plaintiff in error, as provided by the Civil Code, § 6213, for bringing the case to this court for delay, is denied.</p>

<p>Action for damages; from Fulton superior court—Judge Ellis. April 29, 1918.</p>

<p>Certiorari; from Fulton superior court—Judge Bell. April 1, 1918.</p>

<p>_The demurrer on the ground of misjoinder of parties and of causes of action should have been sustained, the action being against a constable and the surety on his official bond and a third person for damages on account of arrest and confinement of the plaintiff by the constable and the third defendant together, without a warrant or other legal process and without probable cause, in which arrest and confinement it was alleged the constable acted in his official capacity and committed a breach of the bond.</p> <p>Jurisdiction as to a cause of action arising under the bond could not be obtained by merely joining as defendants the principal and the surety with a third person sued as tort-feasor, in a county in which he resided and in which the other defendants did not reside, for acts in which the . surety did not participate.</p>

<p>1. A policy of fire insurance issued to one who has only a life-estate in the property insured is inoperative as to loss occurring after his death, since the termination of the life-estate by his death terminates his insurable interest in the property.</p> <p>2. “A deed, signed, sealed, and delivered, and expressing a valuable consideration on its face, imports a legal consideration; and the maker is estopped from alleging or proving the contrary to defeat the depd as title, if to do so involves setting up his own turpitude, and convicting himself of a deliberate intent to defraud his creditors.” Parrott y. Baker, 82 Ga. 373 (9 S. E. 1068).</p> <p>(a) “Where a properly executed deed, purporting on its face to have been delivered, was recorded, this raises a presumption of delivery.” Shelton v. Edenfield, 148 Ga. 128 (96 S. E. 3).</p> <p>(5) If there be any reason why the deed in question could be set aside, it cannot be accomplished by a collateral attack in a suit in which the grantee is not a party. Moore v. Mobley, 123 Ga. 424 (51 S. E. 351).</p>

<p>(Certiorari granted by the Supreme .Court.)</p> <p>Complaint; from Bibb superior court—Judge Mathews. January 8,1918.</p>

Complaint; from city court of Miller county—Judge Turnipseed presiding. March 12, 1918.

<p>Complaint; from city court of Macon—Judge Guerry. March. 22, 1918.</p>

Appeal; from Houston superior court—Judge Grabam presiding. April 3, 1918.

<p>Complaint; from Coffee superior court—Judge Summerall. March 16, 1918.</p>

<p>Complaint; from city court of Statesboro—Judge Proctor. May 13, 1918.</p>

Action for damages; from city court of LaGrange—Judge Moon. April 6,1918.

Action for damages; from Fulton superior court—Judge Bell. May 3, 1918. McLendon sued Myers, Pierce, • and Healey Real ^Estate & Improvement Company for damages on account of personal injuries from falling through a hole in the floor of a building owned by the Healey Real Estate & Improvement Company.

<p>Motion for a new trial; from city court of Blakely—Judge Sheffield. May 16, 1917.</p>

<p>The -verdict not being demanded by the evidence, the grant of a first new trial will not. be disturbed.</p> <p>Certiorari; from Fulton superior court—Judge Pendleton. November 30, 1917.</p>

<p>Complaint; from Ben Hill superior court—Judge Crum, March 4, 1918.</p>

<p>Action for damages; from Fulton superior court—Judge Bell. April 15,1918.</p>

<p>Action on bond; from city court of Hazlehurst—Judge Knox. April 22, 1918.</p>

<p>While a master may be liable for an injury to his servant resulting from the master’s negligence, although the master, in the exercise of ordinary care, could not have foreseen that his negligence would result in an injury of the particular kind produced, or in the particular servant being injured, yet he can not be held liable unless the injury sued for was the natural and probable result of his negligence. He is not liable unless, by the exercise of ordinary care and diligence, he could have reasonably apprehended that his negligence would or might result in injury to some one of his servants. Mitchell v. Schofield’s Sons Co., 16 Ga. App. 686 (85 S. E. 978).</p>

<p>Complaint; from city court of Quitman—Judge W. H. Long. April 8, 1918.</p>

<p>Action for damages; from Fulton superior court—Judge Pendleton. December 7, 1917.</p>

<p>1. Under the present prohibition laws of this State there is no independent crime of keeping for sale intoxicating liquors, distinct from the crime of having, controlling, and possessing such liquors.</p> <p>2. “Articles taken from the person or premises of the accused, tending to establish his guilt of the offense of which he is charged, are admissible in evidence against him, notwithstanding the articles were discovered by an unlawful search and seizure.”</p>

<p>Under the decision of this court in a former action between the parties to this case, in which a judgment of nonsuit was affirmed (9 Get. App. 628, 71 S. E. 1076), the award of a nonsuit on the trial now under review was not error, the cases on each trial being in all material respects substantially the same, both in the petitions and in the evidence.</p>

Trover; from city court of Sandersville—Judge Jordan. April 18, 1918. In this action L. J. Martin sought to recover a certain automobile from B. A. English, sheriff of Washington county, Georgia.

<p>1. “In passing upon an application for mandamus to compel a judge to certify a bill of exceptions wliich is presented in proper form, this court will not look into the merits of any assignment 'of error therein made; but mandamus will not lie to compel the trial judge to sign and certify a bill which is so defective in form as to necessitate a dismissal of the writ of error in case it should be certified and brought to this court.” Sistrunk v. Pendleton, 129 Ga. 255 (58 S. E. 712).</p> <p>(a) Where no sufficient assignment of error is contained in a bill of exceptions, the writ of error will be dismissed. Fidelity & Deposit Co. v. Anderson, 102 Ga. 551 (28 8. E. 382) ; Kimball v. Williams,, 108 Ga. 812 (33 S. E. 994) ; Peavy v. Athinson, 108 Ga. 167 (33 S. E. 956) ; Wheeler v. Worley, 110 Ga. 513 (35 S. E. 639) ; Collins v. Carr, 111 Ga. 867 (36 S. E. 959) ; Carter v. Jackson, 115 Ga. 676 (42 S. E. 46) ; Patterson v. Beck, 133 Ga. 701 (66 S. E. 911) ; Willingham v. Cedartown Supply Co., 11 Ga. App. 464 (75 S. E. 823) ; Joiner v. Stovall, 12 Ga. App. 19 (76 S. E. 753).</p> <p>2. “There are three exceptions to the general rule that this court will not consider the merits of the bill of exceptions upon the application for mandamus. One is where an extraordinary motion for a new.trial has been made. Another is where all of the points made in the bill of exceptions have been passed upon by the appellate court, or where the bill of exceptions is so defective in form as to necessitate a dismissal of the writ of error should it be certified. And the third is in that class of eases in which the reviewing court is without jurisdiction. In the latter case, of course, a dismissal necessarily results. . . Barring these exceptions the appellate court, upon an application for mandamus, will not itself consider the merits of the bill of exceptions; though it will decline to’ make the mandamus absolute ii the judge in his answer presents a sufficient reason for not having certified the bill of exceptions.” Pelham Manufacturing Co. v. Scaife, 7 Ga. App. 446 (67 S. E. 111).</p> <p>3. Under these rulings and the facts of the instant case, if the bill of exceptions tendered to the judge should be certified and brought to this court, a dismissal of the. writ of error would result. This court therefore will not by mandamus compel the judge to certify the bill of exceptions.</p>

<p>Indictment for forgery; from Bibb superior court—Judge Mathews. July 15, 1918.</p>

<p>Accusation, of misdemeanor; from city court of Blackshéar— Judge Mitchell. October 26, 1918.</p>

<p>Accusation of sale of liquor; from city court of Nashville— Judge Christian. October 14, 1918.</p>

<p>Accusation of possession, of intoxicating liquor; from Butts superior court—Judge Searcy. November 2, 1918.</p>

<p>Accusation of carrying pistol; from city court of Millen—Judge Dekle. October 28, 1918.</p>

<p>Indictment for possession of intoxicating liquor; from Cherokee superior court—Judge Morris. September 24, 1918.</p>

<p>Indictment for assault with intent to rape; from Forsyth superior court—Judge Morris. November 2, 1918.</p> <p>The accused was convicted of assault and battery. In the fourth ground of the motion for a new trial it is alleged that the court eTred in charging the jury as follows: “If this defendant assaulted this woman named in the indictment, put his hands on her in a rude manner, whether in an angry manner or not, with the intention of gaining [her] consent to have sexual intercourse with him, and without the intent to overpower her and commit rape, then he would be guilty of the crime of assault and battery.” It is alleged that this was error because the laying of hands upon a person in a rude manner must be without the consent of the person, to be criminal; that however rude the manner of the man might be, if it was with the consent of the woman it could not be assault and battery. Instructions to the same effect as those set out above are complained of in the fifth ground of the motion for a new trial.</p>

<p>Motion for correction of brief of evidence; from Forsyth superior court—Judge Morris. December 24, 1918.</p>

<p>Indictment for manufacture of intoxicating liquor; from Lincoln superior court—Judge Walker. November 27, 1918.</p>

<p>Accusation of manufacture of intoxicating liquor; from city court of Macon—Judge Guerry, January 28, 1919.</p>

<p>Action for-damages; from city court of Richmond county—Judge Black. June 9, 1917.</p>

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

<p>Under the terms of the life-insurance policy sued on, the loan value available for automatic payment of premium which the insured had failed to pay was riot sufficient to “carry the policy in force, in the form as written,” to the date of his death.</p> <p>The insurance company was not estopped from declaring a forfeiture of the policy, it appearing that the sum necessary to pay the past-chje premium was not paid or tendered until after the death of. the insured.</p> <p>The court did not err in sustaining the general demurrer to the second . count of the petition, but erred in overruling the general demurrer to the first count, and in refusing to dismiss the petition.</p>

<p>Petition for certiorari; from Camden superior court—Judge Highsmith. Marcli 20, 1918.</p>

<p>Indictment for misdemeanor; from Wilcox superior court— Judge Crum. December 7, 1918.</p>

<p>Indictment for violation of liquor law; from Houston superior court—Judge Mathews. December 6, 1918.</p>

Indictment for assault with intent to murder; from Butts superior court—Judge Searcy. January 11, 1919. Squire Carson was convicted under an indictment which charged that he shot at J. E. McNair and O. E. Maddox with intent to murder them.

<p>Garnishment; from city court of Athens—Judge West. December 18, 1916.</p>

<p>Indictment for robbery; from Fulton superior court—Judge Hill. October 25, 1918.</p>

<p>Accusation of misdemeanor; from city court of Jesup—Judge Clark. November 4, 1918. - '</p>

<p>The evidence being insufficient to support the verdict of guilty, the trial judge erred in overruling the motion for new trial.</p>

<p>Indictment for assault with intent to murder; from Charlton superior court—Judge Summerall. September 25, 1918.</p>

<p>Conviction of voluntary manslaughter; from Jasper superior court—Judge Park. December 10, 1918.</p> <p>Prom the 4th ground of the motion for a new trial it appears,' that there was testimony to the effect that when, in reply to a question of J. L. Burney, the defendant said that Shep Saffold, the person he was charged with having killed, was killed by his own pistol, Burney said, “That won’t do; I have got his. pistol here, and Shep’s pistol hadn’t been shot;” and the defendant said nothing then. This statement of Burney was objected to as his mere opinion on facts to be passed upon by the jury, and-counsel for the defendant moved to rule it out. The court held that it was admissible as a part of the conversation between Burney and the defendant. It is alleged that the court erred in refusing to exclude it.</p>

<p>Indictment for carrying concealed weapon; from Wilkinson superior court—Judge Park, December 11, 1918.</p>

<p>Conviction of manslaughter; from Worth superior court—Judge Eve. December 7, 1918.</p>

<p>Indictment for obstructing legal process; from Taliaferro superior court—Judge Walker. November 27, 1919.</p>

<p>Accusation of misdemeanor; from city court of Brainbridge— Judge Spooner.' December 16, 1918.</p>

<p>Indictment for misdemeanor; from Rabun superior court— Judge J. B. Jones. December 28, 1918.</p>

<p>Certiorari; from Thomas superior court—Judge Thomas. D&cember 1, 1917.</p> <p>In, this case it was held by the Supreme Court that under the act, creating the city court of Boston (Acts 1914, p. 194) a counter-affidavit to a distress warrant properly returned to that court is triable at the first term thereafter.</p>

<p>Complaint; from Pike superior court—Judge Searcy. May 4, 1918.</p> <p>W. A. LeSueur, as transferee of Mrs. Frances Amanda Fitts, brought suit against J. T. Crawford in the superior court of Pike county, for $300, based upon the following contract:</p> <p>“Georgia, Pike'County.</p> <p>Jan. 13, 1914.</p> <p>“As soon as the matter between M. B. Fitts and the ^Barnesville Bank, amounting to $275.00, now due them by M. B. Fitts as endorser for Bobert Nelson, is adjudicated through the courts, I promise to pay Mrs. Frances Amanda Fitts three hundred dollars, provided said courts decide the question in favor of said Mrs. Frances Amanda Fitts. Otherwise, should the courts decide this property of a certain farm located in the 7th district of said county subject to the above described indebtedness of M. B. Fitts, then I agree that the said maker of this paper is authorized to settle for the amount of the claim with the Barnesville Bank, and I also agree to deliver this paper without value received to the said maker. Three hundred dollars so held and due is the balance of purchase-price to be paid as above indicated.</p> <p>J. T.- Crawford (L. S.)”</p> <p>“Witness: L. C. Tyus, N. P.</p> <p>“This note payable to W. A. LeSueur. Jan. 31, 1914.</p> <p>“Mrs. Frances Amanda Fitts.”</p> <p>. The petition alleges that this contract was given to Mrs. Frances Amanda Fitts for the balance of the purchase-money due her by the said J. T. Crawford for a certain tract of'land sold and conveyed under a warranty deed by Mrs. Fitts to the defendant; that this land was levied on as the property of her husband, M. B. Fitts, under a fi. fa. against him in favor of the Barnesville Bank, and a claim was interposed by the said Crawford; that at the April term, 1916, of the superior court of said county Crawford colluded with the Barnesville Bank and consented that’ the land should be found subject to the fi. fa., and he now refuses to pay the amount due for the purchase-price of the land; that Mrs. Fitts had no notice of this trial,' and that the verdict finding the property subject was fraudulent and void as to her and the plaintiff. By amendment it was alleged that M. B. Fitts had no title to or interest in the land, and had never had any; that after it had been levied on under the fi. fa. and the claim had been interposed by Crawford, it was understood between Mrs. Fitts, the bank, and Crawford that Mrs. Fitts was to be notified when the claim case was to be tried, in order that she might, appear and defend the title to the land against the execution levied upon it in favor of the bank, and that the claim case was not to be tried without notice to her'; that notwithstanding this agreement, and in her absense, Crawford, although he had a warranty deed to the land from her, fraudulently conspired with the bank, and consented that the land might be found subject to the fi. fa., and that the bank entered into a written obligation to refund to him $300 in the event the land .should not be found subject. The plaintiff prayed in the amendment that the Barnesville Bank be made a party to the ease, and be served with a copy of the original petition and the amendment, and that the bank and Crawford be required to show cause why the judgment finding the property subject should not be set aside as fraudulent and void. A general demurrer to the petition was sustained, and to this ruling exception is taken.</p>

<p>Action for damages; from city court of Macon—Judge Guerry. June 19, 1918.</p> <p>From the petition it appears that the plaintiff, a carpenter employed in the car-shop of the railway company, was standing on a scaffold in the shop, pulling out of a hole in a stake a bit which he had driven into it, when the bit suddenly came out and he fell from the scaffold to the floor and received certain injuries, which he alleges were caused by negligence of the company in not furnishing to him a bit suited to the purposes for which he was required to use it and in furnishing one not suited to the work in hand, and also in furnishing a platform too narrow for safety. It is alleged in substance: that he was engaged in repairing a dismantled coal-car; that other employees had bored holes in uprights or stakes placed in sockets alongside the floor of the car, and it was his duty to fasten planks on the inside of the stakes to a height of some four feet from the floor; that the planks had been nailed on the inside of the stakes so as to hold them securely against the stakes while holes were being bored through the planks; that it was his duty to place an air-driven bit through one of the holes in one of the stakes in order to bore a hole through the plank, so as to make the hole fit a bolt to be put through the stake and the plank; that a scaffold six or eight feet high and only about ten or twelve inches wide at the top was furnished to him to stand on; that to have been reasonably safe the scaffold‘should have been three or more feet wide at the top; that he was compelled to work' with a bit which was a sixteenth of an inch larger than the hole in the stake; that he had on a number of occasions asked his foreman for a bit of proper size, bnt was told that the company did not have such a bit; it had not had one for sixty or ninety days before the occasion on which he was injured; that on that occasion the foreman, in reply to his request for a bit of the proper size, told him the company did not have one, but would procure one in a short time; whereupon he used the one that had been furnished to him; that he placed it at the hole in the stake, and, because of its being only a sixteenth of an inch larger, it would not cut the hole in the stake larger, but under pressure from the air-pump it wedged itself through the hole tightly and was driven on through the plank, boring a hole through it; that when he undertook to pull the bit out, it came through the hole in the plank readily, hut it was necessary for him to exert considerable strength in order to. pull it out of.the hole in the stake, and while he was doing this the bit suddenly came out, causing him to fall from' the scaffold to the floor and to receive injuries described. It is alleged that the air-pump used in propelling the hit was heavy, and he did not know there was danger of the bit coming suddenly out of the hole, and by the exercise of ordinary care he could not have known of this danger; that to his eye the hole in the stake appeared to be exactly similar to many other holes through which he had bored on this ear and had' pulled the bit out of the holes in both the planks and the stakes, and this was the only time he had any trouble of this kind; and if the company had furnished him with a hit a sixteenth of an inch smaller he would not have been exposed to the danger.</p>

<p>Action for damages; from Walker superior court—Judge Wright. April 25, 1918.</p>

<p>Action for damages; from Gwinnett superior court—Judge Cobb. June 9, 1918.</p>

<p>Under the facts in this case the trial judge erred in dismissing the motion for a new trial.</p>

<p>Affidavit of illegality; from city court of Carrollton—Judge Beall. June 13, 1918.</p>

<p>Complaint; from Glynn superior court—Judge Highsmith. June 1, 1918.</p>

<p>Distraint; from city court'of Blakely—Judge Sheffield. May 21, 1918.</p>

<p>The. judge of the superior court erred in overruling the certiorari on the ground that it did not appear that a demand for trial by jury had been legally made in the municipal court of Atlanta.</p>

<p>Petition for certiorari; from Laurens superior court—Judge Kent. July 12, 1918.</p>

<p>Distraint; from eity court of Carrollton—Judge Beall. June 20, 1918.</p>

<p>The contract in question is unilateral and the court did not err in dismissing the action.</p>

<p>Condemnation under liquor law; from city court of Quitman— Judge W. H. Long. July 31, 1918.</p>

<p>Lien foreclosure; from Evans superior court—Judge Sheppard. July 15, 1918.</p>

<p>Complaint; from Burke superior court—Judge H. C. Hammond. June 29, 1918.</p>

.Certiorari; from Morgan superior court—Judge Park. November 18, 1918. . ' Suit for money had and received was brought in a justice’s court against officers of a lodge by a deceased member’s' widow, who contended that as his nearest relative she was entitled on his death to certain money from the lodge which was paid to others instead of to herself.

<p>Complaint; from Bleckley superior court—Judge Graham. November 18, 1918.</p> <p>Dykes A. Brown, the payee of a promissory note for $5,000, purporting to have been signed by B. E. Nichols, brought suit thereon against the administratrix of the estate of Nichols. The defendant pleaded non est factum, payment, and that the note was nudum pactum; and introduced evidence which it was contended would authorize a finding in favor of any of these defenses. There was testimony as to declarations of the plaintiff tending to show that the decedent intended by this note to make a gift to him. The note was under seal. On the proposition that a promissory note under seal may be the subject of a valid gift as between the maker and the payee, counsel for the plaintiff cited Lacey v. Hutchinson, 5 Ga. App. 874. On the question whether total want of consideration may be pleaded to a note under seal, he cited: Weaver v. Cosby, .109 Ga. 310 (2); Sivell v. Hogan, 119 Ga. 167 (1); Van Dyke v. Van Dyke, 123 Ga. 686; Slaton v. Fowler, 124 Ga. 956. As to want of consideration, counsel for the defendant cited: Loudermilk v. Loudermilk, 93 Ga. 444 (2); Davis v. Morgan, 117 Ga. 507; Monroe v. Marlin, 137 Ga. 262. As to such a defense to a sealed note he cited: Lacey v. Hutchinson, supra, p. 865; Sims v. Scheussler, 5 Ga. App. 850 (4); Saul v. Southern Seating &c. Co. 6 Ga. App. 843; Williams-Thompson Co. v. Williams, 10 Ga. App. 251; Strickland v. Farmers Supply Co., 14 Ga. App. 661; Bruton v. Wooten, 15 Ga. 570; Neil v. Bunn, 58 Ga. 583; Simms v. Lide, 94 Ga. 553; Weaver v. Crosby, 109 Ga. 310 (2); Clark, Contr. 72, par. 33.</p>

Certiorari; from Fulton superior court—Judge Ellis., October 29, 1918. - It was contended on the part of the insurance company that although the plaintiff did not receive the policy, it became effective and remained in force throughout the period covered by the premium paid, that there was no rescission or cancellation which would relieve the company from liability on the policy, and that the plaintiff therefore received the consideration for which the premium was paid.

<p>Certiorari; from Bibb superior court—Judge Mathews. October 30, 1918.</p>

<p>Motion for a new trial; from city court of LaGrange—Arthur Greer, judge pro hac vice. December 11, 1918.</p> <p>From the bill of exceptions it appears that a judge pro hac vice, by agreement of the parties and under “orders regularly entered on the minutes, in accordance with the requirements of the law,” presided on the trial of this case at the March quarterly term of the city court of LaGrange. A verdict was rendered in favor of the plaintiff, and the defendant filed at the same term a motion for a new trial, and at that term and during a session of the court when the judge of the city court was presiding the judge pro hac vice signed a rule nisi directing the plaintiff to show cause on a named day in vacation why the motion should not be granted, and signed an order extending until the hearing the time for presenting a brief of the evidence. The bill of exceptions states that these orders were not signed while the judge pro hac vice was upon the bench presiding, but were signed while he was in the bar of the court. By subsequent order he extended the time for the hearing of the motion for a new trial, and at the December quarterly term, 1918, he approved the brief of the evidence and an amendment to the motion. The plaintiff then moved to dismiss the motion, because the rule nisi “was not issued from the city court of LaGrange, it not being signed by the judge of said court,” and because the order continuing th.e.;hearing of the motion was not signed by the judge of the city court.. The judge pro hae vice sustained this motion and dismissed the motion for a new trial; and to this the defendant excepted.</p>

<p>Complaint; from city court of Yaldosta—Judge Cranford. November. 14, 1918.</p>

<p>Action on insurance policy; from Murray superior court—Judge Fite. December 11, 1916.</p>

<p>Complaint; from Fulton superior court—Judge Ellis. June 20, 1918.</p> <p>This is the second time this case has been before this court. See Blackstock.v. Phillips-Jones Co., 21 Ga App. 774 (95 S. E. 265). It was a suit on account for the price of certain shirts sold by the plaintiff, Phillips-Jones Company, to the defendants, Black-stock,'Hale & Morgan. The first trial resulted in a verdict for the plaintiff, and the judgment refusing to grant a new trial was reversed by this court upon the ground that there was no evidence to support the allegation of the plaintiff’s petition to the effect that after the refusal of the defendants to accept the goods, they “stored same as the property of defendants, and same are now stored as the property of defendants, and petitioners bring this suit and pray judgment for the purchase price with interest,” etc. Hpon the second trial the plaintiff, in an effort to meet this ruling introduced testimony from Phillips, a director and the general manager of the plaintiff, that “The articles sued for are stored at present in our factory, 829 East 134 Street, New York City, . . and are stored there because they were refused by Blackstock, Hale & Morgan, and are being held subject to the decision in this case. Since the commencement of this suit they have been stored. Some of the goods were lost in transit, while being brought back. A claim is pending with the railroad company. . . The shirts were shipped as instructed. They were refused at destination, and were then stored with the Morrow Transfer & Storage Company at Atlanta, Georgia, and they were then, ordered back from them to our factory. . . They were shipped back by the storage company in Atlanta, Georgia, on the 21st day of November, 1914,” two days after the filing of the suit. At the conclusion of the plaintiff’s testimony the court granted a nonsuit; .to which the plaintiff excepted.</p>

<p>Indictment for misdemeanor; from Colquitt superior court— Judge Thomas. November 13, 1918.</p>

<p>Complaint; from city court of Thomasville—Judge W. H. Hammond. July 8, 1918.</p>

<p>Complaint; from city court of Cairo—Judge Willie. June 28, 1918.</p>

Complaint; from city court of Dawson—Judge Edwards. July 6, 1918.

<p>Action on contract; from city court of Thomasville—Judge W. .H. Hammond. June 37, 1918.</p>

<p>Garnishment; from city court of Americus—Judge-Harper. July 26, 1918. -</p>

<p>- Action for damages; from city court'of Eloyd county—Judge Nunnally. August 12, 1918.</p>

<p>Action for damages; from Catoosa superior court—Judge Tarver. October 4, 1918.</p> <p>In the motion for a new trial it is stated that after the jury had been out for some time the judge recalled them and asked whether they had agreed or were likely to agree upon a verdict. A juror replied: “I don’t know; it don’t look like we are going to get together.” The court: “Is it a question of law or of fact that is disturbing you?” Juror: “A little of both, I reckon. Somehow or another we can’t get convinced just how about the fire.” The court: “It is a question of fact then?” Juror: “Tes, sir.” The court: “If it is a question of fact I could not be of any [help] to you; if a question of Taw I might be'able to help you. Without stating which number favor one side and which the other, you might state how you are divided as to numbers.” Juror: “It is eight to four.” The court: “Has there .been any change very recently?” Juror: “Yes, sir.” The court. “I will let you retire, gentlemen. I want to say this to you: that you ought to go over the evidence as it was delivered from the witness stand, carefully and conscientiously. No juror ought to, surrender any'honest conviction that he may have as to what the truth of the evidence is.</p> <p>' At the same time you ought to view the evidence from every angle, from your fellow’s standpoint as well as from your own; and if, after careful consideration, it is possible for you to arrive at a conscientious verdict, which in your opinion speaks the truth, you ought to do so. You can retire.” It is alleged that the court erred in inquiring how the jury were “divided as to numbers;” that this was an invasion of the province of the jury and tended unduly to induce the four jurors to agree to a verdict; that the question, “Has there been any change very recently?” was objectionable for the same reason; that the court erred in instructing the jury as set out above; that they should, have been sent back without any instruction; that the language of the court pressed them unduly towards finding a verdict, and was misleading as to their duty in making a verdict. Counsel for the plaintiff cited as to these exceptions: Ga. R. v. Cole, 77 Ga. 77, 78; Ala. Great So. R. Co. v. Daffron, 136 Ga. 555. Opposing counsel cited: Dalton Fruit &c. Co. v. Puryear, 22 Ga. App. 489; Chandler v. Stale, 124 Ga. 821(3), 822; Golatt v. State, 130 Ga. 18; Gambo v. Dugas, 145 Ga. 614, and citations.</p>

<p>Complaint; from Fulton superior court—Judge Ellis. April 16, 1918.</p>

<p>Accusation of larceny; from city court of Nashville—Judge Christian. November 30, 1918.</p>

<p>(Certiorari granted by the Supreme Court.)</p> <p>Action for damages; from Pulton superior court—Judge Pendleton. ' June 6, 1918.</p>

<p>Action on contract; from Richmond superior court—Judge H. C. Hammond. November 9, 1918.</p>

Action for damages; from Irwin superior court—Judge Park presiding. December 11, 1918. The action was-on account of the cutting off of fingers of the plaintiff in consequence of the slipping of a rope -which hé was splicing on a pulley in the defendant’s mill.

<p>1. Refusal to grant a new trial on account of newly discovered impeaching testimony was not an abuse of discretion.</p> <p>2. The charge of the court was not subject to the exception that the use of the words “agents or servants” extended the defendant’s liability to acts of others than authorized agents.</p> <p>3.. Failure to charge the jury that if the plaintiff was guilty of some negligence, but not of such negligence as would prevent a recovery, the defendant would be entitled to a diminution of damages was not error, there being no plea of contributory negligence, and no request so to charge.</p> <p>4. The instruction to the jury that as a part of mental suffering they might consider deformity, as the plaintiff would be entitled to recover damages for the consciousness he would carry through life of being a deformed person, was not subject to the exception that the pleadings did not authorize such an instruction.</p> <p>5. The rule that a ground of a motion for a new trial as to the admitting of evidence will not be considered by this court when it is so incomplete as to require reference to the brief of evidence in order- to understand it applies to the ground that the court erred in admitting testi-' mony that the witness “saw the little boy in the mill.”</p>

<p>Complaint; from Madison superior court—Judge W. L. Hodges. May 8, 1918.</p> <p>Compare Washington Exchange Bank v. Smith, ante, 356 (3), 357-8. .</p>

<p>Certiorari; from Fulton, superior court—Judge Pendleton. May 24, 1918.</p>

Action on insurance policy; from Fulton superior court—Judge Pendleton. June 18, 1918. The reinsurance contract referred to in the decision is as follows: “This contract of reinsurance, this day made and entered into by and between the International Life Insurance Company, of St. Louis, Missouri, hereinafter called the International, and The Empire Life Insurance Company, of Atlanta, Georgia, hereinafter called'the Empire, witnesseth: '“1.

<p>Under the act of 1905 as to transfer of jurisdiction of suits pending in a county from -which a new county is laid off (Civil Code of 1910, §§ 829 et seq.), jurisdiction of administration pending in the court of ordinary of Irwin county passed from that court to the corresponding court of Ben Hill county when the part of Irwin county in which the decedent at the time of his death and the administrator resided was cut off into Ben Hill county by the creation of the latter county; and the court of ordinary of Irwin county was without jurisdiction of a subsequent motion to va'cate its judgment appointing the administrator. The superior court of Irwin county, on appeal, did not err in dismissing the ease.</p>

<p>(Certiorari granted by the Supreme Court.)</p> <p>Action for damages; from Bryan superior court—Judge Sheppard. June 15, 1918.</p>

<p>Complaint; from city court of Thomasville—Judge W. H. Hammond. June 17, 1918.</p>

. Complaint; from city court of Nashville—Judge Christian. July 13, 1918. This was a suit by Gaskins against Lovett, Gary, and Rowan on an unconditional joint and several promissory note of Lovett and Gary as principals, and Rowan as surety. There was a verdict and judgment in favor of the plaintiff.

<p>Complaint; from Fulton superior court—Judge Ellis. July 1, 1918.</p>

<p>Complaint;, from Clarke superior court—Judge Cobb. July 20, 1918. . v</p>

<p>Complaint; from city court of Greensboro—Judge Brown. August 12, 1918.</p>

Levy and claim; from city court of Sparta—Judge Moore. August 8, 1918. 1.

<p>Certiorari; from Bibb superior court—Judge Mathews. July 19, 1918.</p>

<p>Rule; from Fulton superior court—Judge Ellis. July 24, 1918.</p> <p>Mary Lou West, administratrix of the estate of J. Oscar West, employed Hill and Adams, as attorneys at law, to collect from the Southern Railway Company a claim for damages on account of the death of J. Oscar West, and signed a paper giving them authority for that purpose, a part of which is as follows: "Therefore you are directed to collect damages or any amount of money to which I am entitled as administratrix. . , either by suit or settlement, and in consideration of such services I hereby agree to pay the said Hill and Adams ten per cent, of all money collected or recovered in case of settlement without litigation after suit is filed, if litigated 25 per cent., as the case may be. The eventual and final disposition of the said business to be in accordance with the better judgment of my said attorney and with my approval.” Suit was accordingly brought by these attorneys, and on June 19, 1918/ they settled the case-for $7,500, the railway company paying them that amount in settlement. In her petition to the superior court for a rule against them,- the plaintiff sets out these facts, with a copy of the paper mentioned above, and alleges: Said Hill and Adams still have said sum of $7,500 in their possession. On June 20, 1918, petitioner made a demand on them for payment' of $6,750, being the amount collected by them less 10 per cent, to which they were entitled as a fee under their contract for services; but they refused and still refuse to pay said sum. On June 20, 1918, they mailed to her a cheek for $5,650, with a letter stating that this was her part of the money received in the settlement of the case. The petitioner alleges that under the terms of the said contract the said attorneys were to have received 10 per cent, of the sum realized from the-suit by settlement, but they withheld 25 per cent, of that sum. She has not cashed the said check, because it is marked in settlement of the case. She prays that a rule be issued requiring the said attorneys to show cause why they should not pay over the money, or in default thereof be attached for contempt.</p> <p>In their answers to the rule the respondents say that the case was litigated, and that under the contract referred to in the petition they are- entitled to 25 per cent, of the $7,500 collected in the settlement; that immediately after they had filed the suit they made an effort to settle the claim but could not procure a satisfactory settlement, and the railway company filed a demurrer and an answer to the suit, that to meet the demurrer they prepared and served an amendment .to the plaintiff’s petition, and the railway company amended its answer; that witnesses for the plaintiff were subpoenaed to attend the trial of the ease, and testimony of nonresident witnesses was taken for the plaintiff, the said Adams going to Birmingham, Alabama, for that purpose, and that the settlement was made after the case had thus become a litigated case and had been on the trial calendar of the court for several weeks. The respondents demurred generally and specially to the petition for the rule, and contended, among other things, that on a petition for a rule the court was without jurisdiction to construe a contract; that while this is a proper remedy to force an attorney to pay over money belonging to a client, it cannot be employed in an effort to collect a contested claim.</p> <p>An amendment to the petition for the rule was offered, in which it was alleged: that the contract referred to in the petition was prepared by the respondents, and they stated to the petitioner, when she inquired as to what meaning would be put on the word “litigation” therein, that it meant trial, and that the meaning of the contract was that their fees in the case would be 10 per cent, of the amount received by settlement if the case was settled before trial; that being thus assured as to the meaning of the contract, she signed it with this understanding; and that afterwards interrogatories were prepared and evidence was taken, the expense of which she. paid upon the express construction placed on the contract, and upon the consideration, and the statement of the respondents, that she would not be required to pay more than 10 per cent, of the amount received if the case was settled before a trial was had before a jury. The amendment was disallowed.</p> <p>The plaintiff filed a traverse to the answers, and while admitting therein that the case was settled after suit was filed, she denied that the ease was litigated. The court refused to submit the case to a jury, and sustained the demurrer to the answers, and ordered that the rule be discharged “without prejudice to the right of the movant to sue and adjudicate the questions at issue in any court. having jurisdiction thereof.” The plaintiff excepted to each of the rulings stated.</p>

<p>Complaint; from Barrow superior court—Judge Cobb. July 30, 1918.</p>

<p>Complaint; from Barrow superior court—Judge Cobb. July 30, 1918.</p>

<p>. Levy and claim; from Taylor superior court—Judge Howard.’ April 1, 1918.</p>

<p>Certiorari; from Fulton superior court—Judge Ellis. October 31, 1918.</p>

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

<p>Certiorari; from Fulton superior court—Judge Pendleton. October 31, 1918.</p>

<p>Appeal; from Jackson superior court—Judge Cobb. Juné -22, 1919.</p>

<p>Complaint; from city court of Savannah—Judge, Freeman. September 17, 1918.</p>

<p>Complaint; from city court of Blakely—Judge Sheffield. August 22, 1918.</p>

' Certiorari; from Fulton superior court—Judge Ellis. October 30, 1918. Jones owed Word & Mauldin $226.18, the amount of an open account for merchandise* running from February to July, 1917.

<p>1. The writ of error in this ease was originally filed in the Supreme Court, •and, that court having by formal order transferred it to this court, the transfer of the case is equivalent to a holding by the Supreme Court that the constitutional questions which the plaintiff in error attempts to raise by the writ are not properly made. Davis v. City of Home, 23 Ga. App. 188 (98 S. E. 231).</p> <p>2. The court did not err in refusing to dismiss the written charges preferred by the board against the defendant, upon the ground that they were not filed at the proper time.</p> <p>3. While the admission in evidence of the certified copy of the plea of the defendant, the verdict of the jury, and the judgment and sentence of the court in a criminal case, standing alone, which were introduced in evidence in this case for the purpose of showing that the defendant had been convicted of a crime involving moral turpitude, was erroneous (Doggett v. Simms, 79 Ga. 253, 4 S. E. 909), this error was cured by the subsequent introduction of a certified copy of the bill of indictment upon which the said plea, verdict, and judgment were based, showing the offense with which the defendant was charged and of which he was convicted. Shaw v. Jones, 133 Ga. 446 (5) (66 S. E. 240).</p> <p>4. The mere fact that records or papers of file have been lost or destroyed is no excuse for not showing -their contents. Such office papers may, when shown to be lost or destroyed, be established instanter; but their contents may be proved, even by parol, without establishing the lost or destroyed original. Bridges v. Thomas, 50 Ga. 378; Saffold v. Banks, 69 Ga. 289; Doggett v. Simms, supra. The court did not err, therefore, in admitting in evidence a certified copy of the bill of indictment against the defendant, taken from the official transcript preserved in the office of the clerk of this court (Eagle & Phenix Mfg. do. v. Bradford, 57 Ga. 249), charging him with the offense of larceny after trust delegated; it being shown by competent evidence (Griffin v. Wise, 115 Ga. 610, 612, - 41 S. E. 1003; Hines v. Johnston, 95 Ga. 629 (3), 23 S. E. 470; Martin v. Bank of Leesburg, 137 Oa. 285 (6), 73 S. E. 387, that the original bill of indictment was not of file or record in the office of the clerk of the superior court.</p> <p>5. The court did not err, there being no insistence that the judgment in the criminal case was void, in refusing to permit the defendant to. introduce evidence for the purpose of showing that he was not in point of fact guilty of an offense involving moral turpitude, of^which he had been convicted (Georgia Railroad v. Homer, 73 Ga. 251 (5) ); since the judgment of a court of competent jurisdiction can not be impeached .collaterally, but is to be taken and held as a valid judgment until it is reversed or set aside by the court rendering it. Civil Code (1910), §§ 5963, 5968.-</p>

<p>Certiorari; from Gordon superior court—Judge Tarver. November 2, 1918.</p>

Certiorari; from Fulton superior court—Judge Ellis. October 30,1918. - Harry Dodd, trustee in bankruptcy for Randolph Rose Company, a corporation, sued Chalman in the municipal court of Atlanta, alleging that as such trustee he administered the business and affairs of the bankrupt corporation by, disposing of all its tangible assets at public sale; that as a result of such administration he obtained no money with which to pay general creditors, the proceeds having been used…

<p>Certiorari; from Bibb superior court—Judge Mathews. December. 13, 1918.</p> <p>On the trial in the municipal court of Macon the plaintiff obtained a verdict and judgment against the bank. The judge of the superior court, on certiorari, held that the plaintiff was not entitled to recover, and sustained the certiorari and rendered final judgment in favor of the defendant.-</p>

<p>No cause of action against tlie principal for the wrongful acts of its agent, in instituting in its name a bail-trover proceeding against the .plaintiff and thereby causing his arrest and imprisonment, is^ehown by his allegations. Even if the agent’s authority to collect notes for purchase-money from purchasers of pianos included authority to institute legal proceedings to recover pianos from purchasers, it does not appear that the agent had authority to institute such proceedings against a person who, as in this ease, according to the allegations of the petition, was not a purchaser and never had in his possession, power, custody, or control the piano involved in the proceeding, and against whom the proceeding was instituted not for the purpose of recovering the piano, but maliciously. Nor does it appear that the acts in question were ratified by the principal with full knowledge of all the material facts.</p>

<p>• Complaint; from Laurens superior court—Judge Kent. July 25, 1918.</p>

<p>1. Payment of an execution in the hands of the sheriff discharges the defendant Matthis v. Pollard, 3 Ga. 1 (3).</p> <p>2. Courts will not decide moot questions. Randolph v. Brunswick Railroad Co., 120 Ga. 969, 970 (48 S. E. 396).</p> <p>3. Where the answer of the magistrate, untraversed and unexcepted to, showed that' after the certiorari was served upon him the money upon the execution levied was paid to the sheriff, the certiorari sued out by the defendant in fi, fa., complaining of the judgment overruling his affidavit of illegality, raised a moot question only, and should have been dismissed on the motion of the defendant in certiorari.</p>

<p>Trover; from city court of Zebulon—Judge Dupree. August 31, 1918.</p>

<p>Action for damages; from Butts superior court—Judge Searcy. August 17, 1918.</p>

<p>Complaint; from Catoosa superior court—Judge Tarver. July 13, 1918.</p>

<p>W!here a case has been tried before a judge pr.o hae vice and by consent the verdict has been received by the regular judge of the court, the former has jurisdiction to entertain -a motion for a new' trial, to issue a rule nisi thereon, and to pass upon the motion, although when the motion was presented and when the rule was issued he was not' Upon this bench but was within the bar of the court, and the regular judge of the court was presiding therein on the trial of another case.</p>

<p>Action for breach of contract; from city court of LaGrange— Judge Moon. September 20, 1918.</p>

<p>Complaint; from Campbell superior court—Judge Smith. August 30, 1918.</p> <p>Bishop sued Mrs. Brantley on her promissory note payable to E. B. Strickland or bearer, for $204 and interest, dated January 9, 1914. She pleaded in substance as follows: In 1911 she bargained to Strickland, a certain house and lot for $2,250, receiving from him a part of the money and his promissory notes of stated amounts for the remainder, and delivering to him her bond to make title to him to the property on full payment of the purchase-price. These notes are due' and unpaid. They were pledged by her to the Eairburn Banking Company as collateral security for a loan, aná after two of them had become due she urged Striekland to pay them, and he proposed to her to adjust the matter by surrendering to her the bond for title and the house (of which he was then in possession), she to deliver up to him his notes and _ to give to him her note for $200 and interest. She agreed to this, and in pursuance of this agreement executed and delivered to him the note on which this suit is based; and he, not having with him the bond for title, agreed to bring or send it to her and she was then to surrender his notes. He has never surrendered to her the bond for title, and she has been unable to dispose of the said place or to realize on it with the bond' outstanding. She could have disposed of it to advantage if the bond had not been outstanding. The consideration of the note sued on has totally failed because of the failure on the part of Strickland to carry out his agreement and surrender to her the bond for title. The plaintiff knew of these facts at the time he received the note. For the reason stated the note is void and the plaintiff is not entitled to recover thereon. The plaintiff demurred to the plea, on the following grounds: (1) It sets forth no legal defense. (2) It shows that the defendant is endeavoring to enforce the alleged contract in part and to rescind in part; and this she can not do. (3) It shows that the defendant did not deliver or attempt to surrender the notes to Strickland or to demand a return of her bond for title; and she is asking to be allowed to keep what she has received under the contract and to repudiate her part of it. (5) The plaintiff demurs specially to the allegations that she has been unable, to dispose of the place with the bpnd outstanding, and would have been able to dispose of it if the bond had not been outstanding.</p> <p>The charge complained of in the motion for a new trial was as follows: “If, on the other hand, you believe from the evidence that J. C. Bishop, the plaintiff in this case, knew all about this transaction and that he is not a bona Me holder of this note for value without notice, but that he had actual notice of all these matters that the defendant contends [to be] a failure of consideration of this note, and that he knew that the note was not to be binding and valid until the bond for title was returned, and that all these matters were Imown to him at the time he purchased the note, even though he purchased it before it was due, then he would not be entitled to recover in this case, and your verdict would be for the defendant.” The exception to this charge is that it “tended to restrict the jury to only a’ part of an entire contract; the evidence showing that the defendant took charge of the property, the only thing of value, so far as the evidence discloses, that she was to receive, and that she had never surrendered or offered to surrender that to the plaintiff during the long period that had elapsed since the trade was made and the defendant gave her note and took possession of the property.”</p>

<p>Complaint; from Warren superior court—Hawes Cloud, judge pro hac vice. October 11, 1918.</p>

<p>Attachment; from Fayette superior court—Judge Searcy. September 24, 1918.</p>

<p>Indictment for adultery and fornication; from'Colquitt superior court—Judge Thomas. November 11, 1918.</p> <p>The woman with whom it was alleged the offense was committed testified, among other things: “He [the defendant] had sexual intercourse with me. I do not know what county it was in. I think it was in Colquitt county. Jackson is in Colquitt county. This was near Jackson. . . I think the place of the sexual intercourse was within two miles of Jackson.” “I think he is a married man. He has a wife and children. I am a single woman.” The testimony of this witness that the defendant “is a married man” and “has a wife and children” was admitted over the objection stated in the foregoing decision. Another witness testified: “I think General Walters [the defendant] is a married man. There is no point within five miles of Jackson that is outside of Colquitt county, Georgia.” Cited by counsel as to proof of marriage: 62 Ga. 406-7; 6 Ga..App. 104-5; 9 Ga. App. 827.</p>

<p>Trover; from city court of Nashville—Judge Christian. December 30, 1918. (Bill of exceptions signed by Judge Lovett.)</p>

<p>Indictment for murder; from Troup superior court—Judge Terrell. November 18, 1918.</p>

<p>Complaint; from Bibb superior court—Judge Mathews. May-25, 1918.</p>

<p>Complaint; from Bibb superior court—Judge Mathews. May-25, 1918.</p>

<p>Complaint; from city court of Carrollton—Judge Beall. May 27, 1918.</p>

<p>Complaint; from Talbot superior court—Judge Howard. June 20, 1918.</p>

<p>Under the terms of the fire-insurance policy sued on, it was invalidated by the procurement of an additional policy on the same property for an amount in excess of that permitted by endorsement on the first policy; and the evidence demanded the verdict which the court directed in favor of the defendant.</p>

<p>Action on contract; from Bartow superior court—Judge Tarver. June 15, 1918.</p>

<p>Complaint; from Chatham superior court—Judge Meldrim. August 10, 1918.</p>

<p>Complaint; from Camden superior court—Judge Highsmith. July 29, 1918.</p>

<p>Garnishment; from Whitfield, superior court—Judge Tarver. October 8, 1918.-</p>

<p>Certiorari; from Laurens superior court—Judge Kent. July 25, 1918.</p>

Action for damages; from Campbell superior court—Judge Smith.

Complaint; from city court of Millen—Judge Dekle. August 30, 1918. The action was on three promissory notes of Mrs. Estelle P. Daniel, the defendant, payable to Nixon & Wright, the plaintiffs, dated in 1914, and for the amounts respectively of $513.75, $1,047, and $1,570.

<p>Certiorari; from Néwt-on superior court—Judge Smith. September 19, 1918.</p>

<p>“The right to rescind for fraud in a horse swap exists -only when actual fraud has been committed. Eeseission, where a right to rescind is not expressly reserved,, cannot be had for constructive fraud or merely on account of warranty, express or implied.”</p>

<p>Trover; from city court of Carrollton—Judge Beall. August 30, 1918.</p>

<p>Action on bond; from Fulton superior court—Judge JUlis. October 3, 1918.</p>

<p>1. Where a railroad company placed a hand-car in a public road near the railroad-tracks at a public crossing, and buckets and coats were hanging on the car, and in driving a mule hitched to a buggy in which the plaintiff was riding as the guest of the owner and driver it was necessary, in order to go over the crossing, that the mule and buggy be driven past the car and within a few feet of it, and the wind rattled the buckets and; waved the coats on the car, thereBy frightening the mule and causing it to run "away and upset the buggy and injure the plaintiff, and where, on the trial of an action for damages on account of the injury, it appeared that the driver saw the car and the buckets and clothes thereon when he was about thirty feet away, and that the mule stopped when about six feet from the car and was looking at it and trembling, and the driver urged the mule on until it ran away and upset the buggy, it was for the -J&ry to say whether the plaintiff had a reasonable opportunity to get out of the buggy safely after the mule showed symptoms of fright and before • it ran away, and whether his failure to do so amounted to a want of ordinary care on his part for his own safety.</p> <p>2. The court, having failed to submit to the jury the question whether the plaintiff, by the exercise of ordinary care, could have avoided the injury sued for, a new trial is required.</p>

Action for damages; from Bartow superior court—Judge Tarver. September 7, 1918. 1-2. In a collision with a train at Main-street crossing in Cartersville the plaintiff’s horse was killed and his buggy destroyed. - This suit was for the loss of his property. The case referred to in the decision (253 Fed. 898) was a suit for personal injuries to his son, who was driving the buggy.

<p>Affidavit of illegality; from Catoosa superior court—Judge Tarver. August 6, 1918.</p>

Action for damages; from Muscogee superior court—Judge Howard. October 19, 1918.. The petition alleges that the Swift Spinning Mills injured and damaged the plaintiff in the sum of $25,000, by reason of the facts here stated: (Paragraph 3) On August 15, 1917, plaintiff was a carpenter employed by defendant and doing carpenter work at the defendant’s plant.

<p>Action on bond; from city court of Hinesville—Judge W. C. Hodges. August 19, 1918.</p> <p>An action was brought in the city court of Hinesville by Florence Funston against Maury Jones and L. Q. Yeomans on a condemnation-money bond purporting to have been given by Maury Jones, with L. Q. Yeomans as security, for the purpose of obtaining a certiorari in a case of Florence Funston against Maury Jones in the county court of Liberty county. The petition alleged: (1) Maury Jones and L. Q. Yeomans are residents of said county of Liberty. (2) Maury Jones as principal and L. Q. Yeomans are indebted to petitioner in the sum of -$100, besides interest, on a bond, a copy of which is attached and marked Exhibit A. (3) Petitioner brought an action against Maury Jones for the recovery of a certain cow (described) of the value of $100, in the county court of said county. (4) On February '14, 1916, she recovered judgment for the said cow, of the value of $100. A copy of the said judgment is attached to this petition and marked Exhibit B. (5) Maury Jones, being dissatisfied with the judgment, carried the same to the superior court by writ of certiorari. (6) In order to get certiorari in said case he was required to give bond and security for the eventual condemnation money, which he did by giving L. Q. Yeomans as security on said bond, a copy of which is hereto attached, marked Exhibit A. (7) On September 22, 1916, said certiorari was by the judge of the superior court dismissed, and thereby the judgment of the county court affirmed; a copy of which judgment is hereto attached marked Exhibit D. (8) TJpon the affirmancé of the judgment of the county court and the dismissal of the said certiorari, Maury Jones as maker and L. Q. Yeomans became liable to petitioner in the sum of $100, besides interest thereon from the date of the judgment dismissing the certiorari. (9) Said Maury Jones, principal, and L. Q. Yeomans, security, fail and refuse to pay said sum of money under their said bond. Wherefore petitioner prays judgment against them for $100 as principal, and lawful interest thereon from September 22, 1916, and that process issue, etc.</p> <p>There was a general demurrer to the petition, and the defendants filed an answer “that for want of sufficient information they can neither admit nor deny the allegations in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9 of plaintiff’s declaration, except that defendants say there was suit in the county court of Liberty county over a cow, between plaintiff and defendant Maury Jones, and that defendant L. Q. Yeomans signed a bond of some kind, but don’t know whether or not it is the bond set out, and defendants are residents of said county.” A judgment overruling the demurrer was affirmed by the Court of Appeals (22 Ga. App. 411).</p> <p>By subsequent amendment of the answer it was alleged, that when the trover suit from which this case arose was tried and judgment rendered therein, the said cow was dead, and that it died from providential cause, unmixed with any fault of either of the defendants, and could not be delivered to the plaintiff, and therefore the defendants did not damage the plaintiff. The plaintiff moved to strike the answer as amended, for the reason that it was not sufficient in law. The bill of exceptions states that “the court, without requiring plaintiff to put his motion in writing (the same having been requested by defendants’ counsel), ruled that both the original and amended answer should be stricken, and entered judgment for plaintiff by default; to all of which defendants excepted,” etc. It is alleged that “no judgment could properly be rendered by default in' said suit, and, there being no evidence introduced to prove any amount of damage, no judgment could be legally rendered.”</p>

<p>Complaint; from Calhoun superior court—Judge Harrell. April 18, 1918.</p> <p>C. J. Taylor, for plaintiff in error. E. L. Smith, contra.</p>

<p>Certiorari; from Webster superior court—Judge Littlejohn.' October 9, 1918.</p>

Certiorari; from Morgan superior court—Judge Park. October 10, 1918. On October 15, 1915, the Morgan County Bank, as transferee, foreclosed a mortgage executed by G. H. F. Chandler as security for a note embraced in the same instrument, dated May 1, 1915, by which he promised to pay on October 1, 1915, “to C. 0. Medlock and E. A. Chandler two hunderd and twenty-five dollars,” with interest.

<p>Certiorari; from Fulton superior court—Judge Pendleton. December 2, 1918.</p>

<p>Indictment for manufacture of liquor; from Glascock superior court—Judge Walker. November 29, 1918.</p>

<p>(Certiorari granted to review judgment as to costs.)</p> <p>Action for damages; from' Fulton superior court—Judge Bell. November 11, 1916. (See 21 Ga. App. 732).</p>

<p>Action for damages; from city court of Atlanta—Judge Eeid. April 6, 1918.</p> <p>The notice referred to in the decision described an injury to the plaintiff’s, person, stated the time and place of the injury, and the negligence which caused it, and concluded with a prayer that, upon consideration of the claim, "just compensation for such injuries” be awarded.</p>

<p>1. As to the insufficiency of the evidence to authorize a recovery for destruction of the plaintiff’s property by fire alleged to have been caused .by emission of sparks from either of two locomotives of the . defendant, the decision of the Supreme Court on review of a former trial of this case .(Seaboard Air-Line Railway v. Jarrell, 145 Ga. 688, 89 S. E. 718) governs the case on the present writ of error, the material evidence on that trial and on the trial, now under review being substantially the same. The proffered evidence as to clinkers found along the right of way of the railroad could not alter the law of the case as laid down in that decision.</p> <p>2. The refusal to exclude positive testimony as to the inspection of an engine by a witness whose testimony in this respect was based on book entries made by himself, and not on independent recollection of the inspection, was not error for any reason assigned.</p>

<p>Action for damages; from Fulton superior court—Judge Pendleton. June 5, 1918.</p>

<p>Exceptions to auditor’s report; Fulton superior court—Judge Bell. July 12, 1917.</p>

<p>Appeal; from Tift superior court—Judge Eve. August 8, 1918.</p>

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

<p>Description and counsel as in the ease cited above.</p>

<p>“],. Where one occupies land under a bond for title, builds thereon a dwelling-house, and subsequently (but before the entire purchase-price of the land has been paid) detaches the house from the land and attaches it to other land not belonging to the owner of the land upon which the house was first erected, and such owner brings an action in trover to recover the house, and his only way to show his title to the house, or his right of possession thereto, is by showing his title to the land upon which it was first built, this is not a ‘case respecting title to land.’ Proof of title in such a case can not-affect the ownership of the land. It is pertinent alone as a basis for the recovery of the chattel. Anything detached from the realty becomes personalty instantly. Civil Code, § 3622.</p> <p>“2. An action of trover will lie to recover a dwelling-house which was detached from the land under circumstances as stated in the preceding headnote, although subsequently (but before the bringing of the suit) it was attached to the land of the wrong-doer. Wood v. McCall, 67 &a. 506; Michigan Mutual Life Ins. Co. v. Cronk, 93 Mich. 49 (52 N. W. 1035). See Ogden v. Stock, 34 Ill. 522 (85 Am. D. 332, and annotations).” Kennedy v. Smith, 149 Ga. (99 S. E. 27).</p> <p>3. Under these rulings the court did not err in overruling the motion to dismiss the action in 'trover, or in overruling the motion by ■ the defendant to dismiss the bond required of him.</p> <p>4. The court did not err in overruling the motion for a new trial.</p>

<p>Complaint; from city court of Atlanta—Judge Eeid. October 4, 1917.</p>

<p>Action for damages; from city court of Cartersville—Judge Aubrey. August 9, 1919.</p>

<p>Action on contract; from Wilkes superior court—Judge Walker. October 17, 1918.</p>

A conviction of the offense of maintaining a lewd bouse was not authorized by the evidence. ' Accusation of misdemeanor; from city court of Swainsboro— Judge Kirkland. November 2, 1918.

<p>Trover; from Taylor superior court; Judge Howard. March 29, 1918.</p>

<p>The allegations of paragraph 14 of the plaintiff’s petition as amended,, as to the acts which caused the ditch to become obstructed and fill up with sand and debris, were sufficiently specific and were not subject to demurrer on the ground that a mere conclusion was stated therein. The court erred in sustaining the special demurrer to that paragraph and striking it.</p>

<p>1. Neither a residuary legatee of a person deceased nor his guardian can maintain an action to enforce the right of contribution of the estate of the decedent, growing out of a cosuretyship. Such a right is a chose in action of the estate and can be exercised only by the personal representative of the estate. This is true although the administrator has paid all the debts of the estate and has fully administered the estate, and has transferred the judgment and execution (the payment of which by the administrator gave him the right of contribution) to the guardian of the legatee, and although, under, the will of the decedent, the legatee was the sole legatee of the residuum of the estate, and the money which paid the judgment and execution referred to would otherwise have gone to the legatee as a part of his legacy. Under such circumstances an action against another for contribution could be maintained only by the administrator of the estate, and could not be assigned to any other person, except by a sale ordered by the ordinary as a part of the administration of the estate. Smith v. Turner, 112 Ga. 533 (37 S. E. 705) ; People’s National Bank v. Cleveland, 117 Ga. 908 (5), 918 (44 S. E. 20) ; Brown v. Mutual Life Insurance Co., 146 Ga. 123 (59 S. E. 856); Bill v. Maffett, 3 Ga. App. 89 (59 8. E. 325); Buchholz v. Sapp, 148 Ga. 352 (96 S. E. 858).</p> <p>2. Under the foregoing ruling the court erred in overruling the 1st and 2d grounds of the demurrer to the plaintiff’s petition, and in not dismissing the petition.</p> <p>3. The error in the judgment upon the demurrer'rendered the further proceedings in the case nugatory.</p>

<p>Action for damages; from Fulton superior court—Judge Ellis. September 25, 1918.</p>

<p>Complaint; from city court of Reidsville—Judge Collins. August 13, 1918.</p>

<p>Action for damages; from Screven superior court—Judge Hardeman. November 19, 1917.</p>

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

<p>The second grant of a new trial by the trial judge in this ease was not warranted.</p>

<p>Eviction; from Hall superior court—Judge J. B. Jones. September 7, 1918.</p>

<p>Action for damages; from city court of Cartersville—Judge Aubrey. October 12, 1918.</p>

<p>Where one buys outright a negotiable promissory note, the transaction is not rendered usurious because the discount amounts to more than the • maximum lawful rate of interest.</p> <p>■The exclusion of testimony referring to other notes than those sued on was proper. The excluded testimony set out in special grounds 4, 5, and 7 of the motion for a new trial was immaterial. Special grounds' 1 and 3 as to the exclusion of testimony are not in proper form for consideration.</p> <p>The evidence authorized the verdict in favor of the- plaintiff.</p>

<p>Complaint; from DeKalb superior court—Judge Smith. August 30, 1918.</p> <p>The suit was based on an agreement alleged to have been made by the defendant when Mrs. Talley, the plaintiff, transferred to him a bond for title, the written transfer of which was as follows: "For value received I hereby sell, transfer, and assign all my right, title, and interest in and to the within bond for title to C. A.. Matthews upon conditions recited in said bond, and the said R. F. Davis [maker of the bond] is authorized and instructed to execute deed in accordance with terms set forth within. Given under my hand and seal, this April 21, 1916. Mrs. Jessie I. Talley (L. S.).” The condition of the bond was that title to a certain lot of land, which Davis had agreed to sell to Mrs. Talley for $300, should be made to her on payment of the amount due thereon, evidenced by her promissory note for $60, payable April 26, 1916. The petition alleges: (paragraph 7) that on April 21, 1916, the defendant entered into an agreement with the plaintiff to assume certain indebtedness of the plaintiff to DeKalb Feed & Supply Company (on a note for $123.05 and an open account for $739.71), provided the plaintiff would transfer to him the bond for title mentioned above; and (8) that "under said agreement and according to the terms thereof” the said bond for title was, on April 21, 1916, transferred by the plaintiff to the defendant “upon the following conditions, which were understood by both parties: Defendant was to pay R. F. Davis the $50 note signed by plaintiff and due April 26, 1916, and have a warranty deed executed in his own name in order that he might put a loan on the place, thereby procuring the money due DeKalb Feed & Supply Company and the $50 to be paid to said Davis, after which said C. A. Matthews was to have no interest in said real estate;” (9) “that [if?] a loan could not be placed upon said house and lot sufficiently large to pay off said indebtedness, said C. A. Matthews was to sell said house and lot, reimburse himself, and turn over to plaintiff all money received in excess of the indebtedness to DeKalb Feed & Supply Company and to R. F. Davis, and in no event was said defendant authorized to sell said house and lot for less than $280 more than was required to reimburse him, which sum was at all events to be paid to plaintiff when a sale was made by defendant;” (10) “that no consideration passed from C. A. Matthews to petitioner for said transfer and none was contemplated other than is set forth in the three preceding paragraphs, and that the recitation in said transfer, ‘For value received I hereby sell, transfer, and assign/ etc., is not true;” (11) “that petitioner’s part of said agreement to transfer said bond for title for the purpose and on the terms and conditions herein alleged has been fully executed;” (12) “that on June 1st, 1916, defendant sold said house and lot to E. T. Echols for $1,500, which is $587.24 more than plaintiff owed DeKalb Feed & Supply Company and R. F. Davis, as herein shown, and which sum should have been turned over to plaintiff immediately after said sale, according to the terms of the contract entered into between petitioner and defendant, and which contract was fully executed on petitioner’s part on the 21st day of April, 1916, when she executed the transfer set forth;” (13) “that defendant refused to pay petitioner said $587.24, or any part thereof, and in so doing has injured and damaged her in the sum of $587.24, with interest from June 1st, 1916, to date; for which she prays judgment against defendant,” etc.</p> <p>The defendant demurred generally and specially, contending that the petition was an attempt to modify, add to, or alter by oral testimony the written contract by which the bond for title was transferred to the defendant. The court sustained the demurrer and dismissed the petition, and the plaintiff excepted.'</p>

<p>Money rule; from Troup superior court—Judge Terrell. July 10, 1918.</p> <p>For the purpose of securing the payment of his promissory note to Eady-Baker Company for $6,130.88, and interest thereon at the rate of eight per cent, per annum from a date several years prior to the date of the note, and attorney’s fees for collection, Hogg executed an instrument reciting a consideration of $6,130.88 and in the form of a warranty deed, except that it contained the statement that “This mortgage deed is the second mortgage on these lands, said grantor having heretofore given mortgages on these lands to George K. Johnson and John W. Hamer, trustees of Penn Mutual Life Insurance Company of Philadelphia, and this deed is given subject to those mortgages” (meaning security deeds). Some time after this instrument had been recorded, the maker executed a deed to the same lands as security for a debt to the Troup Company. Judgments were afterwards obtained against him for the amounts of these debts, the lands mentioned were sold under the Penn Mutual Life Insurance Company’s judgment, and from the proceeds of the sale, after payment of that judgment, the above-mentioned sum of $6,130.88 was paid to George A. Speer as transferee of Eady-Baker Company’s judgment, leaving due thereon the intérest and attorney’s fees provided for in the note.' On a rule to distribute the remainder of the proceeds in the hands of the sheriff, the Troup Company contended that it was entitled to have the fund applied to its judgment instead of to the interest and attorney’s fees included in the EadyBaker Company judgment, which judgment it. contended had priority only to the extent of the amount named in the above-mentioned instrument executed as security to the Eady-Baker Company. This contention was not sustained, the court holding that the claim of the transferee of the Eady-Baker Company’s judgment, for interest and attorney’s fees, was entitled to priority. The Troup Company excepted.</p>

<p>Condemnation of vehicle conveying liquor; from city court of Carrollton—Judge Beall. September 34, 1918.</p>

<p>• The undisputed evidence clearly showing that, even if the defendant company was negligent as alleged, the direct and proximate cause of the homicide sued for was the intervening act of a separate and in-pendent agency, the verdict for the defendant was.not only authorized but demanded, and the court did not err in overruling the motion for a new trial.</p>

<p>1. The assignment of error upon the overruling of the demurrer to the original petition, not having been argued in the brief of counsel for the plaintiff in error, is treated as abandoned.</p> <p>2. The court did not err in excluding from the evidence a portion of the record of the coroner’s inquest.(held upon the body of the insured), containing testimony given at the inquest. This was offered for the purpose of showing that the death of the insured was caused by his own hand or act, and it was not admissible for that purpose. In civil actions, nowhere (except in England) is testimony given at a coroner’s inquest competent proof of the cause of the death of the deceased. 3 Enc. Ev. 573 (2-B), 574, and cases cited in note 29; 13 Corpus Juris, 1255 (§ 34, par. 16), 1256, 1257 and notes 13, 14, 15, 16, 17; Queatham v. Modern Woodman, 148 Mo. App. 33 (7, 9, 10) (127 S. W. 651) ; Knights Templars’ &c. Indemnity Co. v. Crayton, 209 Ill. 550 (8) (70 N. E. 1066); Grant v. Chicago &c. R. Co., 176 Ill. App. 292 (3). See also Supreme Council Royal Arcanum v. Quarles, 23 Ga. App. 104 (97 S. E. 557).</p> <p>3. The court did not err in overruling the ground of the motion for a new trial which was based upon alleged newly discovered evidence. This evidence was cumulative in its character, and moreover was of such, a nature as to show -in itself that by proper diligence of the movant’s counsel it could havF become known to them before the trial, - notwithstanding the conclusion stated in their affidavits that it could not have been discovered by the exercise of ordinary diligence.</p>

<p>Attachment; from city court of Waycross—Judge Crawley. October 21, 1918.</p>

<p>Indictment for perjury; from Haralson superior court—Judge Bartlett. October 21, 1918.</p>

Indictment for possession of liquor; from Eorsytb superior court —Judge Morris. November '2, 1918. Autrey was tried on August'30, 1918, and convicted, under an indictment which charged that on the 27th of the same month he unlawfully had in his possession twenty-five gallons of corn whisky.

<p>1. The indictment sufficiently charged that the offense was committed in Eranklin county, Georgia, where the defendant was indjcted and tried.</p> <p>2. The offenses defined in sections 189 and 192 of the Penal Code (1910) are kindred offenses, and may be charged in separate counts of the same indictment.</p> <p>(a) The 9th count of the indictment, when properly construed, is not based upon the second clause of section 189 of the Penal Code. Therefore the allegation in that count, as to a demand and a refusal to pay, was immaterial and should be treated as surplusage.</p> <p>3. While joint owners of property can not be guilty of larceny if either merely takes .the property to Ms exclusive use, unless the person from whom it was taken had the right to its exclusive possession at the time, yet one joint owner may be guilty of larceny if he takes the entire property with the felonious intention of depriving the other joint owner of his share. 17 E. C. L. 23, § 25. Thus, where A and B are joint owners of a promissory note, and A collects the entire amount of the note, with the felonious intention of depriving B of his share of the proceeds, and actually does so deprive him, A is guilty of larceny. And in .such a case, if A has been entrusted by B with the note for the purpose of collecting the entire amount due and of paying over to B his share of the proceeds, A is guilty of larceny after trust, where, after collecting the entire amount of the note, he converts to his own use B’s share of the proceeds, instead of paying it over to B.</p> <p>4. The court did not err in overruling the demurrer to the indictment.</p> <p>5. The indictment containing nine counts, and the evidence not authorizing a finding of guilty under the 5th, 6th, or 7th count, which charged separate and distinct offenses from those charged in the other counts, the general verdict of guilty was unauthorized.</p>

Indictment for seduction; from Jeff Davis superior court— Judge Highsmith. September 4, 1918. The-requested charge referred to in paragraph 3 of the decision was, that “seduction is a felony involving a penalty of from one to twenty years in the penitentiary of Georgia, and where one is convicted of seduction the punishment can not be for a misdemeanor, nor by fine, nor otherwise except by sentence to a term in the penitentiary of Georgia.”

<p>(Certiorari granted by tbe Supreme Court.)</p> <p>Indictment for seduction; from Crisp superior court—Judge Crum. December 31, 1918.</p>

<p>1. The sufficiency of the description of the property embraced in a mortgage is a question of law for the court,' and the identity of the property mortgaged is a question of fact for the jury. First National Bank v. Spicer, 10 Ga. App. 503 (73 S. E. 753).</p> <p>2. Where a case involving questions both of law and of fact is decided by the judge, without the intervention of a jury, and no motion for a new trial is made, but a direct bill of exceptions is sued out, complaining of the decision or order rendered, a statement in the bill'of exceptions that the order of the court is assigned as error “upon the grounds that said order is contrary to law” is not a specific or valid assignment of error, and can not be considered by this court. Newberry v. Tenant, 121 Ga. 561 (49 S. E. 621); Lyndon v. Georgia Ry. & El. Co., 129 Ga. 353 (58 S. E. 1047).</p> <p>(a) In such a case, however, this court will consider a specific assignment of error upon any antecedent ruling which entered into and affected the final result. Stewart v. Marietta Trust & Banking Co., 129 Ga. 417 (59 S. E. 231).</p>

<p>Conviction of attempt to make liquor; from Coweta superior court—Judge Terrell." December 7, 1918.</p>

<p>Indictment for murder; from Berrien superior court—Judge Thomas. November 30, 1918.</p> <p>Peter Sharp killed Henry Inman, and, under an indictment for murder, was convicted of voluntary manslaughter. Two eyewitnesses testified,—Dave Jackson for the State, and Oren King for the accused. Jackson, in his testimony, said: “I saw Peter Sharp at Oren King’s .dwelling house. , . Henry Inman came and sat down there, was talking, and Peter Sharp said, 'Well that little you. owe me, I want it. I am going away Friday, and want what you fellows owe me.’ He was talking to Henry Inman, and he laughed and said, ‘Do you want it to-day, Pete? I have not got it with me, have not got over 50 or 75 cents.’ Pete said, ‘Give me that then.’ Henry said, ‘I could not give you the last cent I got; I have got to have something;” and he laughed and said, ‘I guess I better go;’ and Pete said, ‘Well, aren’t you going to pay me?’ They had spoken a word or two, and Henry said, ‘I reckon I will have to go before I have to kill me a man;’ and Pete said, ‘I can beat you doing that,’ and reached round and got his gun, a shotgun. I ran and the lamp went out. . '. The gun fired before the light went out. Peter was holding it when it fired, pointed straight at the breast of Henry Inman, about three or four feet apart. Henry Inman did not have anything in his hand as I know of. . . Henry Inman did not do anything to Peter Sharp just at that time more than I have just told you. Henry was standing after he spoke that word,—‘before I have to kill me a man.’ He made no more threats than I have said. That was all that was done there up to the shooting, that I heard. . . I came back in about five minutes. . . Henry was lying right where he had fallen right backwards; . . he was dead. . . Henry Inman had put his hand in his pocket . . and had not taken it out when he said he had better go or he would have to kill him a man. Inman was sitting right by one door and Pete by the other. He did not start out the door next to him,—looked like he made, a move to go around the other door toward Pete Sharp, still had his hand in that position, looking toward Pete, and Pete said, T will beat you doing that,’ and reached for his gun, and instantly the gun shot. . . It was Henry Inman’s left hand, and he put it in his side pocket, did not put any hand in his hip-pocket. . . He was in his shirt-sleeves at that time; and there had been' no more, cross words between them than I have said. They did not seem to be perfectly friendly; . . they made one or two curse words, both of them did. Henry spoke first. Peter Sharp brought the gun there that did the shooting.” The witness said that after Henry Inman had fallen “one of them said, ‘Here is 50 cents/ and picked it up and laid it on him.”</p> <p>Oren King testified: “I was at my home the night Henry Inman was killed there. . . Sharp came first; . . then Henry Inman came. . . It was something like "half an hour before the trouble happened. . . The first I noticed was when Inman said he guessed he had better go before he had-to kill a. man. ' I heard a scuffling. I looked around at Sharp. I heard a scuffle, heard him just pick up his chair. Henry was sitting by one door and Sharp at the other one, next to the stove; . . Inman looked like he was going to come out the door by Sharp. He had to come round the table first to make his turn toward Sharp, and was coming in that direction. There was another door right by him that he could have gone out at, but he did not make any effort -to go out that door. . . I was looking at Sharp and did not have time to see his hand. I do not remember hearing Sharp say anything at that time. They' had been talking a little that night,—did not notice in particular. It seemed like Inman did not like Pete very much, and anywhere they met in the road they would have some little words. It seemed like Inman would be in the wrong on these occasions; they would be quarreling. . . Henry Inman had a pistol; . . he did not have it that night; the reason I know is, when the sheriff came he searched him and did not find it. . . When P heard the scuffle I glanced back, saw Henry Inman going round the table toward where Pete was,— looked like to come out the door by him. Pete had got his gun. About that time the gun fired, which put the light out, and I went out too. . . Just before the shooting one said, ‘I better go before I have to kill a man/ then got up and started out the door. . . The door nearest the stove was the one always used and the one he started through. He said he had better go before he had to do something, and then got up and started. When he shoved his chair back after he made the remark, I looked around about that time at Sharp, and the gun fired. At the time Inman said he better be going before he would have to shoot, hurt, or kill somebody, Pete did not have his gun then, and did not get it until Inman got up and started to go, and then he got it from the floor somewhere and shot him just as quick as he could point it at his breast, and Inman fell right where he was shot. . . I have been present along the road when Henry Inman and Peter Sharp would meet in the road and have some words; that was something like a couple of weeks prior to the shooting.” Another witness testified that after the killing he picked np fifty cents on the floor near where Henry Inman was- lying. It was about four or five inches from his pocket, on the left side, and between his hand and his pocket. It was testified that Henry Inman haT the reputation of being a little overbearing, and that the defendant was peaceable.</p> <p>The defendant’s statement at the trial was as follows: “This here man, I asked him about the money. He held me up .on the road and took $7.53 away from me. He had a 32 four-inch-barrel lemon-squeezer pistol. And I asked him for that money, I thought he had it that night. If I had not I would not have shot him for nothing in the world. That is the money I wanted frofn him. There at the house that night I asked him fpr my money, and when he threw his hand in his pocket I thought he was going after his pistol. I knowed he had it, because he kept it all the time.</p> <p>He had it in his clothes, and he threw his hand back there [indicating to his side or hip-pocket], and I thought he was getting his pistol. I reached and got my shotgun and shot him.”</p> <p>It was contended that under the evidence and the defendant’s statement, he was either guilty of murder or not guilty of any crime, and that it was not proper to charge the -jury on the law of voluntary manslaughter.</p>

<p>Indictment for murder—conviction of manslaughter; from Calhoun superior court—Judge Harrell. August 17, 1918.</p>

<p>1. The assignment of error in the bill of exceptions is sufficiently certain and specific to give this court jurisdiction of the ease.</p> <p>2. The court erred in striking the defendant’s pleas.</p>

<p>On making the judgment of this court the judgment of the lower court in this case, that court erred in rendering another judgment for a ' sum of money additional to the amount of the original judgment.</p>

<p>1. The court did not err in overruling the amendment to the defendant’s motion for a new trial, or in refusing to set aside the verdict and judgment as therein requested, on the ground that by reason of the breaking down of an automobile in which he was traveling, he was unable to reach the court or communicate with his counsel or the court before the trial of the case.</p> <p>2. The verdict was authorized by the evidence.</p>

<p>Indictment for larceny; from Eulton superior court—Judge Hill. December 21, 1918.</p>

<p>Indictment for manufacture of liquor; from Harris superior court—Judge Howard. January 27, 1919.</p> <p>Self was convicted under an indictment charging him with having manufactured- intoxicating liquor. From the evidence it appeared, that a few days before December 28, 1917, he moved to a house from which one Chapman had-just moved, and on the 28th the sheriff found in a cane-brake about 200 yards from the house a smutty kettle, and found in the bank of the creek there a hole which, he testified, appeared to have been dug for the kettle to go- in, and near it a pile of wood and kindling. He testified that he looked for a worm, but did not find a worm or a furnace, and “there hadn’t been any whisky made at that particular distillery place;” the only thing he “found there to indicate a distillery was a kettle black on tlie outside, and a hole that the kettle could have been put in.” He found two barrels of beer there, which seemed to have been made with sorghum syrup and to be of the kind used for distillation of whisky. He destroyed this beer, and, after going to the house of Babe Oliver, near there, in a search for whisky, he went to the defendant’s house aiid told the defendant he had information that some beer was in the crib there and he wanted to see about it. The defendant said, “All right,” and told him the beef was there, that he found it when he moved there. The defendant too.k him to the corn-crib, which was locked, opened the door, and showed it to him. There was a barrel in the corn-crib and another in the corner of the stove-.room chimney (outside the dwelling house), containing beer of about the same age and apparently of the same ingredients ■ as that found at the place where he had found the kettle. He destroyed it and the defendant told him he would find four more barrels in the swamp east of the house; and he went a distance of about 250 or 300 yards east of the house and found four barrels of “pretty much the same beer,” except that it was a little sweeter. .He “considered that the beer in the barn and corner of the house was in the right stage for distillation.” The defendant did not-tell him whose beer .it was, and was not asked whose it was. There was a recently traveled trail in plain view leading from the defendant’s barn to the cane-brake where the kettle was found. The witness stated that there was no other path leading from “the distillery.” He could not stand at the defendant’s house and see “the distillery;” “the distillery was . . ten or fifteen feet in the cane-brake.” There was a road leading from Babe Oliver’s house to the defendant’s and it was “about twice the distance from the distillery to Mr. Oliver’s that it was to where Mr. Self lived at that time.” The witness said that he tasted the be4r, but “not enough to have any effect;” he could tell from tasting it that it was good, strong beer, and had alcohol in it, and would say it was intoxicating, but he did not drink enough to feel it. He considered that it would make whisky; he had found at whisky stills similar beer in that stage. He could not tell what was in the barrel at the corner of the kitchen except that it tasted like syrup beer; it had bran at the bottom of it. No other- witness testified for the State.</p> <p>Chapman testified that when he moved away from the house into which the defendant moved, he (the witness) left “a bárrel of stuff” which he had fixed up for his hogs, consisting of water and syrup, corn shorts, “the take out of the kitchen, scraps and things like that,” and it was not beer when he left there. He knew nothing of the other beer referred to, or of the kettle and the hole at the cane-brake; he did not go in the cane-brake; he was “out that path every day or two,” and he “never saw any smoke in there.” When he gave possession of the crib to the defendant, to move corn and stuff there, he (the witness) had possession of a )part of the crib; and Will Oliver had a right to go in and use the crib; it was not a locked crib. No path led from the cane-brake to Babe Oliver’s house. Will Oliver testified that just before the defendant moved to-the house there was some beer in the barn, or “something or other called beer;” he was’ invited to drink some of it, and at first had an idea that it was beer, but he “found out different” when he tasted it; it was more like sweetened water. Babe Oliver lived about 200 yards from the crib, and was the nearest neighbor to the defendant. Chapman had moved about a half or three quarters of a mile from there. The defendant, in his statement at the trial, said that when he started to move his fodder into the barn he found the barrel of beer covered up under fodder, and never touched it; that his wife advised him to pour it out, but he replied that he had no right to do so, and that he would keep the barn locked and would find the man it ‘belonged to if he came after it; and soon after ho found it the sheriff came, and he told the sheriff about the beer; he did not know of any still on the creek or that there were two barrels of J)eer down there; he had not been down there in some time.</p>

<p>Accusation of receiving stolen goods; from city court of Tifton— Judge Price. February 18, 1919.</p>

<p>Accusation of misdemeanor; from city court of Tifton—Judge Price. March 18, 1919.</p>

<p>Although an affidavit made for the purpose of requiring bail from the defendant in trover be defective in that the affiant does not swear positively but qualifies it by the words “to the best of his knowledge and belief,” it is amendable, under the Civil Code of 1910, § 5706; and such an irregularity affords no ground for attaeldng by affidavit of illegality a judgment rendered against the principal and the surety on the bond in that proceeding.</p>

<p>Indictment for sale of liquor'; from Jefferson superior court— Judge Hardeman. February 19, ’ 1919.</p>

<p>Accusation of misdemeanor (revocation of probation); from city court of Madison—Judge Anderson. .April 12, 1919.</p>

<p>Petition for certiorari; from Jeff Davis superior court—Judge Highsmith. 'June 8, 1918.</p>

<p>. Complaint; from Bibb superior court—Judge Mathews. July 9, 1918.</p>

<p>Complaint; from city court of Valdosta—Judge Cranford. July -13, 1918.</p>

<p>By the petition in this case a temporary administrator sought to have the city court set up a trust in property alleged to have been conveyed to the defendant, and to set up title in the plaintiff’s intestate, and recover for a conversion of the trust fund arising from the defendant’s sale of the property. Hold, that the temporary administrator was without authority to' maintain the action, and the court was without jurisdiction to determine the cause; and it was not error to dismiss the case on demurrer.</p>

<p>Complaint; from Baldwin supérior court—Judge Park. July-10, 1918.</p> <p>Joel A. Smith sued J. E. Lawrence for $500, alleging that on May 30, 1917, the defendant borrowed of. him $200 in cash an.d the plaintiff’s negotiable promissory note for $300, and agreed to repay both sums by November 1, 1917, and failed to repay them or any part of them, apd. that the note was negotiated to an innocent purchaser before maturity. The defendant in his .answer denied that he borrowed the money or the note, and denied that he owed anything to the plaintiff. From the plaintiff’s testimony at the trial it appeared that he and the defendant entered into a written contract, dated “5/30, 1917,” which, after reciting the payment of $200 by him to the defendant, and the giving of his promissory note for $300 to the defendant, due November 1, 1917, proceeded as follows: “for which the said J. E. Lawrence has this , day delivered to the said Joel A. Smith fifteen shares of the capital stock of the Satilla Pecan Orchard & Stock Company, of Waycross, Ga., par value $100 per share, and the said J. E. Lawrence agrees to sell the said 15 shares of stock at any time before November 1, 1917, and pay off the above-mentioned note . . and also pay the said Smith the $200.00 paid -by him in cash to said Lawrence, and also pay off” a certain fi.fa., “from proceeds of said sale of stock; and in the event that I, J. E. Lawrence, should fail to sell said stock and pay off said note and cash and fi.fa., I hereby authorize the said Joel A. Smith to sell the said 15 shares of stock at public or private sale and apply the proceeds of said sale first to the payment of above-mentioned note and cash, and second to the payment of the above-mentioned fi.fa., and the remainder, if any, then to be turned over to said Lawrence.” The plaintiff testified that he let the defendant have' the money and the note as a loan, and took the 15 shares of stock as collateral, and the defendant was to pay him ,on the first of November, 1917, and redeem the stock; that he did not give the- $200 and the note in the purchase of stock. In regard to the written contract he testified: “I think I kind of sketched it out; I don’t know whether I wrote it all, hut the principal part of it. This is the contract between me and Mr. -Lawrence that I am suing on.” At the conclusion of the plaintiff’s testimony the court, on motion of the defendant, ruléd out the plaintiff’s testimony as to the terms of the contract, on the ground that the contract was in writing. The defendant 'then moved that a nonsuit be granted, and the motion was sustained.</p>

<p>Certiorari; from Laurens superior court—Judge Kent. June 22, 1918.</p> <p>From the petition for certiorari and the answer it appears that when the case was sounded at the appearance term of the justice’s court the defendant demurred .in writing on the ground that there had been no legal service. The plaintiff moved to enter up judgment in its favor, contending that proper service appeared from the officer’s return, which was not traversed, and that the defendant, by appearance and pleading “in the form of his demurrer,” had waived all irregularities in process, absence of process, and service. The court, over objection of the plaintiff, allowed the defendant to withdraw the demurrer and file a traverse to the return of service. The court sustained the traverse and dismissed the ease; and in the petition for certiorari the rulings stated were complained of. The judge of the superior court sustained the certiorari, and the defendant excepted.</p>

<p>Complaint; from city court of Carrollton—Judge Beall. June 12, 1918.</p>

<p>Action on insurance policy; from Fulton superior court—Judge Pendleton. September 19, 1918.</p>

<p>Processioning; from Jefferson «superior court—Judge Hardeman. October, 14, 1918.</p> <p>Goodin owned a tract of land adjoining land of Brooks and Anderson. There was dispute between Goodin and these adjoining’ landowners as to- the line between his and their land, and' he applied to the proeessioners of the district to mark the line anew. A line was marked by the proeessioners, and a protest to their return was filed by Brooks and Anderson. A trial by a jury in the superior court resulted in a verdict in favor of the return; the protestants made a motion for a new trial, which was refused, and they excepted.</p> <p>At the trial there was testimony to the effect that in order to settle' a dispute as to the line, Goodin proposed that 86 acres should be cut off to Brooks by a straight line which should run from a given point, and this was agreed to, and it was agreed by the parties that a certain surveyor should be employed, at the expense of Goodin, to run and mark the line in accordance with this agreement; and the surveyor, with the- assistance of Goodin and Brooks, did this and was paid by Goodin for his services. There was testimony on the part of the protestants that they did not agree to the line as then run by the surveyor. In the motion for a new trial it was alleged that the court erred in charging as follows: “Coterminous landowners differing among themselves about the true line may enter into a parol agreement about what the true line is, and when they do agree about it and the line is run in accordance with the agreement, it is binding, and the party would not thereafter be heard to say that some other is the true and correct.line.” Also: “So in this ease, after the differences arose beiween the parties, if Mr. Goodin and Mr. Anderson and Mr. Brooks, the parties who had the differences about the land lines, if they agreed that a line should be run, and that to be a straight line, cutting off to Mr. Brooks 86 acres of land, and they entered into that agreement, and thereafter these proeessioners [?], with the surveyor, ran the line in accordance with that agreement, then I charge you, if you should find that to be the truth of the case, it would not be necessary for you to pursue your investigations further. If the agreement was entered into, a definite, distinct agreement between the parties, and they understood it, and the line was run In accordance with that agreement,- then it would make no difference though one of the parties may have thereafter become dissatisfied with that survey, if the survey was made and the line was run in accordance with the definite, distinct agreement between the parties. If they agreed upon'a line and run the line in accordance with the agreement, and you should so find, • then write your verdict in this case for the applicant.” This is alleged to be error “because of an incorrect statement of the law, and because, with this charge delivered to the jury, they had a right to uphold the finding of the processioners in the event they should have concluded from the evidence that there was a verbal agreement to run a line, without said agreement having been executed or in anywise thereafter concurred in.”</p>

<p>Complaint; from city court of Savannah—Judge , Freeman. October 28, 1918.</p> <p>The action was on an open account consisting of numerous dated items, including such items as: “Pulling car out of mud-hole,” “Going out and starting motor,” “2 hours mechanic’s time going out and starting car,” “Trip to East Savannah to pull car out of sand,” “1 hour mechanic’s time repairing magneto,” etc., each followed by an amount in money; to which the defendant demurred on the ground that the items were too vague, indefinite, and uncertain. Error was assigned on the overruling of the demurrer.</p>

<p>Complaint; from Madison superior court—Judge W. L. Hodges. November 3, 1918.</p> <p>Woodruff Machinery Manufacturing Company sued Compton on an open account for $175, alleged to be difference due in swapping engines between plaintiff and defendant.” The defendant pleaded, and on the trial testified, that in the transaction in which the plaintiff’s engine was traded to him, the plaintiff guaranteed its engine to be a twelve horse-power engine and in good condition, and guaranteed that it would do a third more work than the engine which the plaintiff was getting from him; that after he received the plaintiff’s engine he gave it a thorough test, and it failed to do the work it was guaranteed to do, and after he had notified the plaintiff of this fact the plaintiff failed to make the engine do the work it was guaranteed to do, and refused to exchange back. The agreement was not in writing. The plaintiff contended that no such warranty was made. The trial judge charged the jury on the law- applicable to an express warranty, and then charged as to implied warranty, in the terms of the Civil Code (1910), § 4135.' The verdict was against the defendant, and, his motion for a new trial being overruled, he excepted. In the motion the charge as to implied warranty is complained of, on the ground that, the defense being express warranty, the court should not have given in charge the law of implied warranty.</p>

<p>Petition for certiorari; from Liberty superior court—Judge Sheppard. November 9, 1918.</p> <p>From the petition for certiorari it-appeared that the railroad company was sued by Guinnip in a justice’s court of Liberty county for $50, on account of the killing of a horse alleged to have been killed at Allenhurst in that county on April 18, 1918; that at the appearance term the defendant filed a general denial of the plaintiff’s allegations; and that the testimony at the trial on appeal in the justice’s court was as follows: The plaintiff testified: “The horse which they removed from the pilot of the defendant’s train at Allenhurst in said county on April 18, 1918, was my property. His value was $50, which the defendant has not paid me and is now due me. I did not see the train strike the horse.” Another witness testified: “I was at the depot of the defendant at Allenhurst in Liberty county, Ga.> on April 18, 1918, when the defendant’s train No. 21 arrived about 3:40 p. m. When the engine rolled up to the station at Allenhurst- the plaintiff’s horse was on the pilot, dead. I helped to remove the carcass from the track. I. did hot see the train kill the horse. The value of the horse was $50.” The jury rendered a verdict in favor of the plaintiff for $50, for which judgment was rendered. The petition for certiorari alleged that the verdict was contrary to law and evidence and without evidence to support it. In the brief uf counsel for the railroad company it is contended: (1) At the time of the alleged killing the United States government was operating the railroad (a fact as to which judicial cognizance must be taken: 16 Cyc. 904; 38 Fed. 415, 419; General Order of Director General, No. 27, Koberts’ Federal Liability of Carriers, p. 1712), and the government alone is liable, if there be any liability: Central Law Journal, Feb. 7, 1919, p. 100. (2) There was no evidence, either direct or circumstantial, that the horse was killed by the train. (3) If the suit could be construed as being against the Director General, there was no presumption against him (98 Ga. 306). (4) There was no evidence that the horse was struck by the train in Liberty county, and the jurisdictional allegation of the plaintiff’s pleading was not sustained: Park’s Code, § 2798; 53 Ga. 500, 501(1); 6 Ga. App. 858(1); 1-11 Ga. 855, 856.</p>

<p>1. The legal representative of a deceased partner may be sued in the same action with the survivor,- on a contract of the firm; and, this being such a suit and the legal representative being a resident of Fulton county, the municipal court of Atlanta had jurisdiction to try .the case, although the surviving partner was a resident of Gwinnett county.</p> <p>2. The judge of the superior court did not err in sustaining the certiorari..</p>

<p>Motion to set aside judgment; from Cherokee superior court— William Butt, judge pro hac vice. January 1, 1919.</p>

<p>Although the presumption is that the magistrate’s answer to the certiorari was true, the evidence introduced on the issue made by the traverse to the answer was in conflict and did not demand a finding against the traverse; and the judge of the superior court therefore erred in directing a verdict against the traverse.</p>

<p>Complaint; from Murray superior court—Judge Wright presiding. January 6, 1919.</p>

<p>Condemnation of vehicle conveying liquor; from Whitfield superior court—Judge Tarver. October 8, 1918.</p>

<p>Certiorari; from Bibb superior court—Judge Mathews. January 22, 1919.</p>

<p>Action for damages; from city court of Hall county—Judge Wheeler. December 23, 1918.</p>

<p>Complaint; from Taylor superior court—Judge Howard. November 16, 1918.</p>

<p>Indictment for adultery and fornication; from Cobb superior court—Judge Morris. 'April 5, 1919.'</p>