Volume 24 — Georgia Appellate Reports

<p>The general rule that parol evidence will not be received to vary an unambiguous written contract applies to the contract for compensation for services in the sale of land in this case; and it was error not to strike the entire plea of the defendants, which the court below held to be sufficient so far as it set up that the sale was made, not under the written contract, but under a previous parol agreement, although holding it insufficient so far as it set up fraud in the proeui-ement of the wi'itten contract.</p>

<p>Trover; from city court of Zebulon—Charles J. Lester, judge pro hac vice. September 25, 1917.</p>

<p>Action for money had and received; from Fulton superior court— Judge Bell. November 6,1917.</p> <p>The substance of the petition is set out in 22 Ga. App. 374 (96 S. E. 393). The decision there reported was reversed on certiorari.</p>

<p>“1. The maintenance, by a municipality, of a large waste-paper wooden box as a receptacle for trash and waste-paper, and the removal of the contents thereof by the employees of the municipality, is a duty connected with the preservation of the public health.</p> <p>“2. The maintenance of such a box as just described and the removal of its contents is an act by a municipality in the performance of its governmental functions.</p> <p>“3. The courts will take judicial cognizance of the fact that the maintenance by a municipality of such a box and the removal of its contents is a duty connected with the preservation of the public health, and is a part of the governmental functions of the municipality.</p> <p>“4. Under the facts alleged in paragraphs 6 and 7 of the petition, the municipality was in the performance of a governmental function in maintaining and emptying the box above described, but the municipality was also under ministerial duty to keep its streets and sidewalks free from obstructions such as alleged. Consequently, under the facts alleged in the petition, at the time of the injury the exercise of the governmental function of emptying the box had ceased, and the ministerial duty of keeping the streets and sidewalks free from obstructions was obligatory, and the municipality would be liable in damages for negligence of its employees when the top or cover of the box was ‘left open’ so as to project it over the sidewalk and injure the plaintiff in the manner alleged. ”</p>

<p>Action for damages; from Eulton superior court—Judge Pendleton. November 19, 1918. (See Weyman v. Maynard, post.)</p> <p>The action was against the Atlanta Gas Light Company and S. T. Weyman. A demurrer of the gas company, on general and special grounds, was sustained and the petition dismissed as to that defendant; and the plaintiff excepted. The petition alleges in substance, that the plaintiffs husband and her brother-in-law rented jointly a certain house from the defendant Weyman, and, a few hours after they had moved into the house, in August, 1917, two employees of the defendant gas company came to it for the purpose of installing gas-meters, connecting up and testing the gas-fixtures, and turning on the gas for the use of the plaintiff and of the other residents of the house; that when these employees arrived the plaintiff and her sister requested them to make a careful examination of all the gas-fixtures and connections in the house; that shortly after the employees of the gas company had finished the work of installing the gas-meters, testing and connecting up the gas-fixtures and connections, and left the house, the plaintiff discovered that the bath-room was completely filled with gas, which had escaped and was then escaping through a hole in the ceiling, and that the entire bath-Toom .gas-fixture, instead of being connected in the ceiling, was Iving. entirely disconnected, in the bath-tub; that the plaintiff, with the assistance of a stranger who came into the house to aid her, threw open the door and tfie window of the bath-room in order that the gas might escape from it, and the stranger in a few minutes connected the gas-fixture with the hole in the wall, and thus stopped the leakage of gas; that about thirty minutes later this stranger stood upon a box in the middle of the bath-room and struck a match for the purpose of testing the connection between the gas-pipe or fixture and the hole in the wall, and was extending his hand in the direction of the hole or wall connection when suddenly and unexpectedly there was an explosion and a flame which spread over the entire bath-room where the plaintiff was then standing, and burned her in a manner described; that when this occurred she was standing about ten feet from the man who struck the match and in the doorway leading from the bath-room into the hall. It is alleged that the gas company was negligent: (a) in failing to have all gas-fixtures in the house securely and properly connected so that the gas when turned on would not escape; (1)) in failing, after notice and request, to examine all the gas-fixtures in the house, and in failing to connect them before installing gas-meters and connecting up and turning on the gas; and (c) in installing the gas-meters and connecting and turning on the gas in the house without first examining and safely and securely connecting all fixtures in the house and in particular the said bath-room fixtures. It is alleged that Weyman was negligent in not having the house in a safe and suitable condition for occupancy, and in not having the gas-fixtures safely and properly connected so that gas when turned on would not escape.</p> <p>In the demurrer of the gas company it was contended that the petition failed to allege facts showing that the company was under any duty relative to the character of the connection, or the examination or condition of the fixtures, beyond the meter and tho service pipes connected with it, or was under any duty to comply with the ' request made to the company’s employees.</p>

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

The court did not err in directing a verdict for the defendant. Complaint; from Tift superior court—Judge Eve. July 4, 1918.

Action on contract; from Chatham superior court—Judge Meldrim. July 19, 1918. Application for certiorari to review this decision was denied by the Supreme Court. The Saluda Wholesale & Warehouse Company, a corporation of South Carolina, sued J. M. Y. Eooney & Company, of Savannah, Georgia, for damages on account of alleged breach, of contract for the sale of nitrate of soda by the defendant to the plaintiff. The trial of the case resulted in a verdict for the defendant.

<p>Complaint; from city court of Monroe—Judge Anderson presiding. January 7, 1919.</p> <p>The suit was on an, account for 15% months board, and for expense of moving the defendant, laundry, etc. The defendant was the mother of the plaintiff’s wife. He and his wife and daughter testified that when the defendant came to their home to board she agreed to pay whatever her board was worth, and. said that she would not go there if not allowed! to pay board. No amount was agreed upon. It was testified that she boarded at the plaintiff’s house 15% months, and that $20 a month, as charged in the account, was a reasonable charge for her board, and was the usual charge in the town in which they lived; that the plaintiff moved her to his house with his own teams and money, and the amount charged for this was reasonable. The defendant testified that she did not agree to pay any board, but did pay her daughter, the plaintiff’s wife, $5 a month, and “that is all it is worth;” that she “did not agree to pay any more;” and that when she went to live with them she carried enough provisions and canned goods to last her two years. There was a credit of $65 cash on the account sued on, and the plaintiff testified that the defendant paid or gave this amount to his wife. The defendant-and others testified that during a part of the period mentioned she did not stay at the plaintiff’s house, but stayed with other children. The verdict was for the defendant.</p>

<p>Action for damages; from city court of Atlanta—Judge Reid. December 7, 1918.</p>

<p>Certiorari from Laurens superior court—Judge Kent. March 8, 1919.</p> <p>Application for certiorari to review this decision was denied by the Supreme Court.</p>

<p>Accusation of possession of liquor; from city court of Savannah— Judge Rourke. February 13, 31, 1919.</p>

Indictment for possession of liquor'; from Warren superior court —Judge Walker. March 10,1919.' ' Application for certiorari was denied by the Supreme Court in this case.

<p>Conviction of assault with intent to murder; from Murray superior court—Judge Tarver. March 8, 1919.</p>

<p>The breaking and entering necessary to constitute burglary were not shown by the prosecutor’s testimony that some one went into his store when he was gone,'—went in through the window “where a glass 12 by 16 was broken out 4 feet from the door,” or “slipped in the store” before it was closed up; and a conviction of that offense was unauthorized.</p>

<p>1. No intimation of opinion that the defendant’s witnesses had sworn falsely was contained in the instruction that -every witness is presumed to try to tell the truth.</p> <p>2. The instruction as to impeachment of witnesses by proof of general bad character, which was complained of on the ground that there was no such proof, was not such error as would require a reversal of the judgment.</p> <p>3. A ground of the motion for a new trial which complains of the admission of evidence but fails to show that objection was made at the trial will not be considered.</p> <p>(a) A direct exception on the same ground in a bill of exceptions tendered after the expiration of the prescribed time will not be considered, in the absence of exceptions pendente lite.</p> <p>4. The instructions complained of were not error when considered with the remainder of the charge of the court.</p> <p>6, 8. Failure to give instructions not requested, on the weight to be given evidence of good character, or on the law of confessions, is not cause for a new trial.</p> <p>7. Failure to charge on circumstantial evidence, where a conviction is not wholly dependent on such evidence, is not cause for a new trial.</p> <p>5, 9. The venue of the crime was sufficiently shown, and the evidence authorized the verdict.</p>

<p>Indictment for misdemeanor; from Eloyd superior court—Judge Wright. March 31, 1919.</p>

<p>Indictment for misdemeanor; from Gilmer superior court— Judge Morris. February 8, 1919.</p>

<p>Certiorari; from Chatham superior court—Judge Meldrim. December 17, 1918.</p>

<p>Motion to change venue; from Ware superior court—Judge Summerall. May 13, 1919.</p>

<p>Indictment for murder—motion to change venue; from Union superior court—Judge J. B. Jones. May 19, 1919.</p> <p>In the motion to dismiss the writ of error it was contended that the act of 1911 as to change of venue and as to exceptions in such cases (Ga. L. 1911, pp. 74-7) is unconstitutional and wholly void, and the bill of exceptions was unauthorized.</p>

<p>Complaint; from city court of Thomasville—Judge W. II. Hammond. September 26, 1918.</p>

<p>Where in a contract for the sale and purchase of goods there is no agreement as to the identity of the thing sold, an action for breach of the contract by refusal to accept the goods tendered is not maintainable. Identification of the thing sold is essential to a contract of sale.</p>

Indictment for larceny; from Liberty superior court-rJudge Sheppard. February 17, 1919. Application for certiorari to review this decision was denied by the Supreme Court.

<p>Action for damages; from Chatham superior court—Judge Meldrim. January 28, 1919.</p> <p>The action was for personal injuries from a collision of the defendant’s automobile with the plaintiff’s bicycle. The petition alleged, in substance, that at night the plaintiff was riding a bicycle in the rear of the defendant’s automobile on a public road. The defendant’s wife, as his agent, was driving the automobile, and the defendant was seated at her side on the front seat. The plaintiff, desiring to pass the automobile, while it was going at a speed of between five and eight miles an hour, rode on his wheel to the left of the automobile and proceeded along by its side, and then ran in advance of the automobile to the right of the road and continued to ride for throe or four minutes on the right side of the road and about twenty feet in advance of the automobile, when the front wheel of his bicycle struck a sandy place on the right side of the road, and as a result of this the bicycle overturned and he was thrown to the ground on the right side of the road. He immediately arose, and his body was in almost an erect position when he was struck in the back by the right front fender of the automobile and again knocked to the ground. The automobile was not stopped, nor the speed slackened, nor its course deflected, but it came straight ahea.d, and, after knocking him to the ground, the right front wheel passed over his right leg, and his clothing became entangled in the wheels and machinery of the automobile, and he was dragged by it along the road for a distance of between 200 and 300 feet, after which the defendant placed him and the bicycle in the automobile, and took him to a hospital. He received certain injuries (described) as a result of the striking and dragging by the automobile. It was alleged that the injuries were due entirely to the defendant’s negligence as follows: (1) in permitting his wife, who was an inexperienced and incompetent driver, to have charge and control of the machine; (2) in permitting the automobile to be driven along the public road at that time and place, in close proximity to the plaintiff’s bicycle, without clue care for his rights and safety being exercised; (3) in that the defendant’s wife did not use all reasonable and proper care, in the driving of the automobile, to avoid collision with and injury to the plaintiff; (4) in that the defendant’s wife, when the plaintiff fell to the ground, took her hands from the steering wheel and threw them to her face, and allowed the machine to speed on its course and overtake and injure the plaintiff, whereas if she had either applied the brakes of the machine or had steered it to the left of the plaintiff while he was prostrated on the ground and in the act of rising, all injury to him would have been avoided; (5) in that the defendant, when his wife failed to apply the brakes and released the steering gear, did not himself apply the brakes and steer the automobile to the left, and thus avoid striking the plaintiff; (6) in that the defendant allowed the machine to be propelled under its power for a distance of between 200 and 300 feet without stopping it, and thus dragged the plaintiff along the road, and thus aggravated the initial injury to the plaintiff’s leg and tore his clothing into shreds.</p> <p>The defendant demurred, on the grounds, (1) that no cause of action was stated against the defendant, and (2) that there was a non-joinder, in that the defendant’s wife should be made a party defendant. The court overruled the second ground and sustained the general demurrer and dismissed the petition.</p>

<p>Accusation of violating prohibition law; from city court of Macon—Judge Guerry. March 1, 1919.</p>

<p>A conviction of larceny was authorized by the evidence, which included proof of a ‘confession of guilt, corroborated by evidence showing larceny of the cotton alleged to have been stolen, and that the basket in which it was when stolen was found where the accused said he put it. The sufficiency of the corroboration was a matter to be determined by the jury.</p>

<p>Indictment for misdemeanor; from Warren superior court— Judge Walker. March 6* 1919.</p>

<p>Transmission of the bill of exceptions and the transcript of the record in this ease to this court being delayed beyond the prescribed period for transmission, and it appearing, from the certificate of the clerk of the lower court, that the delay was caused by counsel for the plaintiff in enor, who took the bill of exceptions and the brief of the evidence from the clerk’s office oil the day on which the hill of exceptions was filed therein, and retained them for several months, although repeatedly requested to return them, the writ of error must be dismissed.</p>

<p>Accusation of manufacture of liquor; from Kandolph superior court—Judge Worrill. March 3, 1919.</p>

<p>Accusation of misdemeanor; from .city court of Wrightsville— Judge Blount. February 22, 1919.</p>

<p>Indictment for manufacture of liquor; from Floyd superior court—Judge Wright. April 7, 1919.</p>

<p>Certiorari; from Chatham superior court—Judge Meldrim. December 17, 1918.</p>

<p>Certiorari; from Fulton superior court—Judge Ellis. January 24,1919.</p>

Accusation of gaming; from city court of Newnan—-Judge Post. December 10, 1918.

<p>Accusation of bastardy; from city court of Baxley—Judge Lawrence. March 6, 1919.</p>

<p>Action for damages; from Gordon superior court—Judge Tarver. September 28, 1918.</p>

<p>Conviction of manslaughter; from Montgomery superior court— Judge Graham. November 16, 1918.</p>

<p>Action for damages; from city court of Savannah—Judge Freeman. March 7, 1919.</p> <p>From the petition it appears that the plaintiff, while standing on the running board of an electric street-ear traveling at great speed, was injured because of a collision of the car with an automobile. The petition as amended (omitting parts eliminated by rulings on special demurrer) alleged in substance: On Sunday, September 15, 1918, the plaintiff, being in the employ of the Foundation Company and being engaged in necessary war work, which made it necessary for him to work on Sundays as well as week days, boarded an open car of the defendant railway company, operating between the city of Savannah and the Foundation Company’s plant where he was employed. An inspector employed by the defendant and acting within the scope of his duties as such advised the plaintiff and other employees of the Foundation Company that this was the only car to go to the Foundation Company that morning, and that as many as possible had better get on the car, and as a result the car was filled with these employees, and between forty and fifty of them, including the plaintiff, stood on the running board of the car; and the defendant’s conductor on the car collected his fare while he was standing on the running board. The car was about twenty minutes late in starting, and the inspector instructed the motorman to hurry back, as he had to meet a certain other car. The car immediately proceeded on its way to the Foundation Company at great and excessive speed, and continued at excessive, reckless, and negligent speed until the collision hereinafter related. It was running on the Augusta road at the rate of from thirty to thirty-five miles an hour when approaching Fair street, a much frequented highway used by pedestrians, wagons, and automobiles in large numbers, and the crossing- of that street and the Augusta road was a much frequented and dangerous crossing. The car carrying the plaintiff approached this dangerous crossing at full speed, and no bell was rung, or whistle blown, or other signal given of its approach. The defendant’s track at this point runs close to the southern edge of the Augusta road, which cuts Fair street at right angles. An automobile was going north on Fair street, intending to turn west into the Augusta road, and as it was crossing the defendant’s track the defendant’s car ran upon it, knocked the automobile into a telegraph pole, completely crushed it, and turned the rear of the automobile to its right, causing the automobile to strike and injure the plaintiff. The street-car was running so rapidly and recklessly that even after striking the automobile it could not and did not stop for a distance of 110 feet. The collision and the injuries described were caused solely by, and their proximate cause was, the negligence of the defendant, its agents and employees, in the following particulars: in operating its car at excessive and reckless speed; in failing to slow down in approaching the crossing, so as to have the car under, control and to be able to stop it within a reasonable distance; in operating the car at such excessive speed that when it struck the automobile it did so with so much force as to throw the automobile violently against the plaintiff and cause the injuries described; in failing to ring a bell or give any other signal of the approach of the street-ear when approaching a dangerous and frequented crossing; in failing to keep a proper lookout so as to observe the automobile in time to have been able to slow down and stop or let the automobile pass in front of the car without colliding. At the time of the collision the plaintiff was exercising all due and ordinary and reasonable care and diligence. The defendant owed him as a passenger extraordinary care and diligence, which it failed to exercise. Allegations were made as to the extent of the injury and damage. By amendment it was alleged, that the front of the street-car ran in and struck the rear of the automobile (the automobile having turned to the left and west in an effort to escape the collision), driving and forcing the automobile into the telegraph pole, which was standing between the defendant’s car-tracks and at a distance of about four feet south of the south track and on the prolongation of the west property lines of Fair street, and being at the southwest corner of the Augusta road and Fair street; “and said automobile being thus held jammed against said telegraph pole and said street-car continuing its terrific speed, forced its way past said automobile, causing . . . petitioner to be caught, jammed, and mashed between the said street-car and the said automobile.” At the time of said impact the street-car was traveling at a rate of speed of from thirty to thirty-five miles an hour. The excessive rate of speed described directly contributed to the injury, for had not the street-car been traveling at such rate of speed at the time.it struck the automobile, the rear of the automobile would not have been thrown around with such terrific force, and the plaintiff either would not have been hurt at all or his injuries would not have been so serious.</p> <p>The court overruled a general demurrer to the petition, and overruled certain special grounds relating to the inspector’s statements, and to allegations as to speed, and as to negligence in failing to ring a bell or give a signal. Counsel for plaintiff in error contended that the alleged negligence of the defendant was not the proximate cause of the injury, and also contended that a recovery was precluded by the fact that the plaintiff when injured was engaged in a violation of the law which, prohibits one from pursuing his occupation on Sunday. Counsel cited: Ayers v. L. & N. R. Co., 5 Ga. App. 454; Wallace v. Cannon, 38 Ga. 199-(95 Am. D. 385); Martin v. Wallace, 40 Ga. 52; Redd v. Muscogee R. Co., 48 Ga. 102; Hughes v. Atlanta Steel Co., 136 Ga. 511.</p>

<p>Motion to set aside judgment; from city court of Tifton—Judge Price. March 12, 1919.</p> <p>By petition to the city court of Tifton, filed March 6, 1919, Buck sought to set aside a judgment which on August 5, 1918, that court rendered against him in favor of the Peoples Bank of Jacksonville, Florida, the defendant in the petition. He alleged, in brief, that by reason of a malignant cancer and dangerous illness which threatened his life, and for which he was under treatment in Baltimore, Maryland, from April 7 to August 15, 1918, and which after his return to his home kept him confined to his bed, he was incapacitated from giving any attention to business affairs and rvas in ignorance of any proceedings of a legal nature against him, and did not until within ten-days of the filing of this petition know of the suit against him, filed May 17, 1918, in which the judgment in question was rendered, and on account of his illness was prevented from making a defense. He alleged that he had a valid and meritorious defense. From the petition and the exhibits it appeared that the suit referred to was for $1,800 alleged to be due as a balance on a promissory note of Buck for $2,500, dated November 12, 1917, payable to the order of Blount Naval Stores Company and indorsed to Peoples Bank of Jacksonville. Service of that suit was effected by leaving a copy at the defendant’s place of abode. The petition to set aside the judgment alleged that the petitioner was not indebted to the plaintiff on the note sued on, for the reason that it was obtained from the petitioner under the following circumstances: On or about 'June 5, 1915, the Blount Naval Stores Company, of Jacksonville, Florida, was organized, with the petitioner as one of the subscribers to its stock; and at or about that time lie was indebted to the Blount Naval Stores Company in the sum of $5,500, balance due on stock subscription, and in settlement of this indebtedness executed and delivered to that company two promissory notes, one for $2,500 and one for $3,000. Subsequently B. W. Blount, president of the company, advised him that inasmuch as these two notes had not been paid, he had arranged for renewals of them, and through the mail Blount sent to him two notes for similar amounts, to be executed by him and delivered back to the company, for the purpose of using them as renewals or taking up the first two notes. With this understanding and for this purpose the petitioner executed the note sued on and one for $3,000, and sent them through the mail to the Blount Naval Stores Company to be used for that purpose alone. The original notes were at that time held by some bank the name of which the petitioner is unable to give. The Blount Naval Stores Company, without any right or authority and in fraud of the petitioner’s rights, transferred to the Peoples Bank of Jacksonville the note sued on, and did not use it for the purpose of taking up and renewing the two original notes, but left them as an outstanding obligation, and they are still outstanding obligations against him. Of all these facts the Peoples Bank of Jacksonville had full knowledge before the note sued on was transferred and delivered to it. The petitioner alleged that these facts constituted a good and meritorious defense. He offered to file his plea as here indicated and to plead instanter. He prayed that the judgment be vacated and set aside and that the case be reinstated. The petition was duly verified.</p> <p>The defendant demurred generally, and also upon the ground that the petition failed to show how and from whom the Peoples Bank obtained its information as to the notes being renewal notes, and as to the purpose of Buck in executing them.</p>

<p>Accusation of carrying pistol; from city court of Miller county— Judge Geer. March 22, 1919.</p>

<p>Accusation of misdemeanor; Nom city court of Carrollton— Judge Beall. April 7, 1919.</p>

Condemnation under liquor law; from city court of Macon—• Judge Guerry. May 25, 1918. On May 4, 1918, a police officer of the city of Macon seized a Buick automobile which contained 150 or 175 pints of whisky. At the time of the seizure it was near a vacant house, and not upon a public highway. No one was in possession of the automobile, nor had the officer seen any one driving it, but he had noticed its tracks leading from a public highway to the place where it was found.

<p>Condemnation under liquor law; from Gwinnett superior court —Judge Cobb. May 4, 1918.</p>

<p>1. Under the rulings made by this court in Arnold v. Water Power & Mining Co., 22 Ga. App. 504 (96 S. E. 343), and by the Supreme Court in the same ease on certiorari, 149 Ga. 107 (99 S. E. 382), the motion to dismiss the bill of exceptions in this case is overruled.</p> <p>2. The first assignment of error in the bill of exceptions, complaining of the admission of certain evidence, upon the ground that it was immaterial and irrelevant, is without merit, since the evidence admitted was relevant to show the history of the transaction involved; but even if immaterial, its admission is not shown to have been harmful. Unless a reasonable likelihood of a prejudicial effect appears, the admission of evidence merely immaterial will not authorize the setting aside of a verdict and the grant of a new trial. Armour Fertiliser Works v. Dwight, 22 Ga. App. 144 (3) (95 S. E. 746).</p> <p>3. The assignments of error as to the exclusion of certain testimony are without merit. Whether one of the plaintiffs in a suit for contribution may have in point of fact procured from one of the joint makers of the notes, other than the defendant, the amount contributed by him towards the discharge of the joint obligations, by giving to that joint maker his personal note therefor, and whether that note has ever been paid, are matters resting solely between the plaintiff and the one from whom he borrowed the money thus contributed. So far as the defendant here is concerned, the original joint obligations have been discharged, and he is no longer liable thereon; and whether the plaintiff borrowed the amount contributed by him, and, if so, whether it has ever been repaid to the one from whom it was borrowed, are questions with which the defendant has no concern. Larsen v. Slette, L. R. A. 1915A, 898, and note (125 Minn. 267, 146 N. W. 1094); Iíillas v. Fuller, 143 Y. Supp. 15; 13 C. J. 823, § 5, note 32 (e) ; Miller v. Perkerson, 128 Ga. 465 (3) (57 S. E. 787). The questions which the court refused to permit the witness to answer were propounded merely for the purpose of showing that the note given by the plaintiff for the money borrowed and contributed by Mm towards the discharge of the original joint obligations had never been paid, and not that the plaintiff had not actually contributed towards the discharge thereof the amount alleged.</p> <p>4. The other excluded evidence offered by the defendant, tending to show an indebtedness upon the part of one of the plaintiffs to one of the banks for whose benefit the original joint obligations were incurred, was immaterial to the issues involved under the pleadings, and the court did not err in excluding it.</p> <p>5. Under the well-settled rule that, in a ease where the plaintiff’s or the defendant’s testimony is contradictory in itself, vague, or equivocal, it must be construed most strongly against him (Bussey v. Grantham, 23 Ga. App. 709 (99 S. E. 236) ), the evidence in this case demanded a verdict in favor of the plaintiffs, and the court did not err in so directing.</p>

<p>Distraint; from city court of Wrightsville—Judge Blount. July 6, 1918.</p>

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

<p>Action for damages; from city court of Madison—Judge Anderson. August 31, 1918.</p>

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

<p>The evidence of the plaintiff tended to prove every material allegation of her petition. The court, therefore, erred in granting a nonsuit.</p>

<p>Action for damages; from Hall superior court—Judge J. B. Jones. November 9, 1918.</p>

<p>Action for damages; from Fulton superior court—Judge Pendleton. November 19, 1918.</p> <p>See Maynard v. Atlanta Gas Light Go., ante, p. 5.</p> <p>The petition alleged, in substance, that the plaintiff’s husband, J. W. Maynard, and her brother-in-law, L. W. Whitley, entered into an agreement with the defendant Weyman whereby he was to rent to them-jointly, for the use of themselves and their families, the house and lot known as 570 Central Avenue, Atlanta, Ga., and in pursuance of this agreement they took possession of the house on August 27, 1917; that a few hours after they moved into it two employees of the Atlanta Gas Light Company came to the house for the purpose of installing gas-meters, connecting up and testing the gas-fixtures, and turning on the gas for the use of the plaintiff and the other occupants; that she and her sister requested these employees to make a careful examination of all the gas-fixtures and connections in the house; that shortly after the employees of the gas company had finished their work of installing gas-meters, testing and connecting up the’ gas-fixtures and connections, and left the house, the plaintiff discovered that the bath-room was completely filled with gas, which had escaped and was then escaping through a hole in the ceiling, and that the entire bath-room gas-fixture was lying, entirely disconnected, in the bathtub; that thereupon, with the assistance of a stranger who had come into the house to aid her, she threw open the door and window of the bath-room in order that the gas might escape therefrom, and within a few minutes the stranger connected the gas-fixture with the hole in the wall, thus stopping the leakage of gas; that about thirty minutes later this stranger stood upon a box in the middle of the bath-room, while the plaintiff stood within about 10 feet of him and in the doorway between the bathroom and the adjoining hall, and he struck a match for the purpose of testing the connection between the gas-pipe or fixture and the hole in the wall, and was extending his hand in the direction of the hole or wall connection, when suddenly and unexpectedly there was an explosion and a flame which spread over the entire bathroom and into the doorway of the hall adjoining the bath-room where the plaintiff was standing, and burned her. It was alleged that the defendant Weyman was negligent (a) in failing to have the house in a tenantable condition, and in a safe and suitable condition for use as a residence by the plaintiff and the other persons residing there; (b) in failing to have all gas-fixtures in the house safely, securely, and properly connected up, so that the gas when turned on would not escape therefrom.</p> <p>Weyman demurred to the petition, upon the following grounds: 1. It sets forth no cause of action against him. 3. It fails to allege that the plaintiff gave notice to him of the repairs alleged to be necessary; nor does it show that she was not guilty of such negligence as would preclude a recovery. 3. It appears that the alleged defects were patent and known to the plaintiff and unknown to this defendant, and the petition fails to allege that this defendant knew or had notice of such defects. 4. The allegations show that the plaintiff, by the use of ordinary care, could have avoided the- injury. The court overruled the demurrer, and Weyman excepted.</p>

Action for damages; from Habersham superior court—Judge J. B. Jones. November 3, 1918. Seaborn Simmons brought an action against the Southern Railway Company for personal injuries, under the Federal “employer’s liability act” of April 22, 1908 (c. 149, 35 Stat. 65, H. S. Comp. St. 1916, §§ 8657-8665).

<p>Complaint; from Greene superior court—Judge Park. November 23, 1918.</p>

<p>Complaint; from city court of Waynesboro—W. H. Davis. March 4, 1919.</p>

<p>Distraint; from city court of Newnan—Judge Post. April 7, 1919.</p>

<p>Action for damages; from Fulton superior court—Judge Pendleton. March 5, 1919.</p>

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

<p>Delay in imposing sentence afforded no ground for exception to one convicted in January, 1918, and sentenced in April, 1919, where a final disposition of the case was delayed by his motion for a new trial and his bill of exceptions to the Court of Appeals, which in February, 1919, affirmed the judgment overruling the motion.</p>

<p>Conviction of assault and battery; from Morgan superior court —Judge Park. April 14, 1919.</p>

<p>1. “A chose in action arising from a tort is assignable where it involves, directly or indirectly, a right of property.”</p> <p>(a) “Where a partnership is dissolved and one partner assigns to the other all of his right, title, and interest in and to the assets of the partnership, the assignee may institute and maintain an action against such tortfeasor for the entire damage sustained by the partnership. The assignor is not a proper party plaintiff to the suit, nor is it proper that the suit be brought in the names of both partners for the use of the assignee.”</p> <p>2. The petition was not subject to general demurrer.</p> <p>3. “An allegation in a petition by one member of a partnership, that the other member thereof sold out to the plaintiff ‘all of his right, title, and interest in and to the assets of said partnership, plaintiff having operated the business since the date of said sale under a trade name, and being the sole and exclusive owner of all of the assets of the firm,’ is a sufficient allegation of assignment of a chose in action, in the absence of an appropriate special demurrer, and as against a general demurrer that ‘plaintiff’s petition sets forth no cause of action which would authorize a judgment against defendant.’ ”</p> <p>(a) The above allegation in the plaintiff’s petition was not attacked by an appropriate special demurrer.</p> <p>4. The petition as amended was not subject to any of the special grounds of the demurrer interposed.</p> <p>5. An assignment of error not argued in the brief of counsel for the plaintiff in error will be treated as abandoned. A mere reference to such an assignment, with the statement that it is not abandoned but insisted upon, will not be considered as an argument. “Courts of review have the right to expect assistance from counsel by citation of authority or argument.” Toumans v. Moore, 11 Ga. App. 66 (74 S. E. 710); Muse v. Hall, 18 Ga. App. 651 (90 S. E. 222) ; James v. Boyett, 19 Ga. App. 157 (91 S. E. 219); Barfield Musie House y. Hwris, 20 Ga. App. 42 (92 S. E. 402). In the instant case the only reference to the first five grounds of the amendment to the motion ror a new trial is as follows: “We contend that the court committed error in overruling the assignments of error contained in the 4th, 5th, 6th, 7th and 8th grounds of the amendment to the motion for a new trial, for the reasons set out in each ground thereof, and we invite the attention of the court to each ground thereof.” Under the above ruling these grounds will be treated as abandoned.</p> <p>6. “While it is undoubtedly true that the contentions of the plaintiff were stated more at length than those of the defendant, it can not be inferred from this fact that undue stress was laid upon or undue prominence given to the contentions of the former. In the first place, the contentions, so far as appears from the pleadings of the plaintiff, are set forth fully and distinctly in his petition, properly paragraphed, and the defendant contented itself, as it had a right to do, with a bare denial of the allegations of the petition. If the plaintiff’s case required a full, definite, and affirmative allegation of certain facts, and the defense to the cause of action as stated rests upon a mere denial of the allegations in the petition, and the trial judge sums up the contentions of both parties by a fair statement of the material allegations in the petition, and then states that these allegations are denied by the defendant, how can it be said that he has failed to state the contentions of either party?” Macon Dublin cG Savannah R. Oo. v. Joyner, 129 Ga. 684 (59 S. E. 903). Under this ruling, and the facts of the instant ease, the charge of the court stated the contentions of the parties fairly and with sufficient fullness and clearness. If the defendants had desired a more elaborate statement of their contentions, a timely written request therefor should have been offered.</p> <p>7. The reference in the charge to the defense of the defendants was sufficiently full, in the absence of a timely written request for more detailed instructions thereon. s</p> <p>8. The verdict was authorized by the evidence, and the court did not err in overruling the motion for a new trial.</p>

<p>Indictment for breaking and entering railroad-cur; from Thomas superior court—Judge Thomas. January 17, 1919.</p>

<p>Indictment for robbery; from Fulton superior court—Judge Humphries. February 15, 1919.</p>

<p>Affidavit of illegality; from Floyd superior court—Judge Wright. February 4, 1919.</p>

<p>Ordinarily the failure to z-eeord a mortgage, given to secure the paymezzt of a note, will not release the surety ozz the note unless the mortgage and the note were executed contemporaneously. However, under the facts of the instant case, the failure to record the mortgage given to secuz'e the payment of the debt evidenced by the note sued upon released the surety, although the note and the mortgage were not given contemporaneously.</p>

<p>Action for breach of warranty; from city court of Hall county— Judge Wheeler. February 17, 1919.</p>

Action for damages; from Fulton superior court—Judge Bell. February 8, 1919. From the petition it appears that the plaintiff’s husband, a machinist employed by the defendant in its factory, received injuries which caused his death, from the bursting of a pipe in the factory when he was placing around the pipe, under the direction of the defendant’s foreman, a clamp to stop a leak from a crack in it.

<p>“The law embraced in section 73 of the Penal Code does not qualify or limit the law of justifiable homicide as laid down in sections 70 and 71 of that code. The section first mentioned applies exclusively to cases of self defense from danger to life arising during the progress of a fight wherein both parties had been at fault. The other two sections are applicable when the homicide is committed in good faith to prevent the perpetration of any of the offenses mentioned in section 70, or under the fears of a reasonable man that such an offense will be perpetrated unless the person who is actually or apparently about to commit it be slain. Instructions as to these two separate branches of law of justifiable homicide should not be so given as to confuse the one with the other.”</p> <p>(a) “Where an erroneous rule of law is given to the jury on a material issue in the case, and is of such a nature as is calculated to mislead them, a new trial will be granted notwithstanding the correct rule may have been announced in other portions of the charge.”</p>

<p>Accusation of transporting liquor; from city court of Eastman— Judge Griffin. February 22, 1919.</p>

<p>Indictment for larceny; from Bibb superior court—Judge Mathews. April 5, 1919.</p>

<p>Indictment for possession of liquor; from Floyd superior court-judge Wright. March 31, 1919.</p>

<p>Conviction of assult and battery; from Cobb superior court— Judge Morris. April 13, 1919.</p>

<p>Indictment for robbery; from Eulton superior court—Judge Humphries. April 13, 1919.</p>

<p>Indictment for murder; from Lowndes superior court—Judge Thomas. October 20, 1918.</p>

<p>Indictment for sale of liquor; from Bandolph superior court— Judge Worrill. March 31, 1919.</p>

<p>Conviction of involuntary manslaughter; from Lowndes superior court—Judge Thomas. October 26,1918.</p>

<p>Conviction of manslaughter; from Baldwin superior court— Judge Park. December 3, 1918.</p>

Indictment for cruelty to child; from Cobb superior court— Judge Morris. April 12, 1919. Mrs. Naomi V. Campbell was indicted under section 758 of the Penal Code of 1910.

<p>Indictment for manufacture of liquor; from Pike superior court -Judge Searcy. April 8, 1919.</p>

<p>Vhe evidence as to tlie wounds inflicted by a pocket-knife was sufficient to authorize the inference that the knife was a deadly weapon and was used in a manner likely to produce death; and this, in connection with the other evidence in the case, was sufficient to authorize the jury to infer malice and intent to kill.</p>

<p>Conviction of assault with intent to murder; from Randolph superior court—Judge Worrill. March 31, 1919.</p>

<p>Indictment for misdemeanor; from Clinch superior court— Judge Summerall. April 19, 1919. .</p>

<p>Conviction of manslaughter; from Glascock superior court—■ Judge Walker. April 18, 1919.</p>

<p>Indictment for burglary; from Whitñeld superior court—Judge Tarver. May 5,1919.</p> <p>Howard ivas convicted of burglary, under an indictment which charged him with having broken and entered the store-house of Wood So McDonald and stolen certain articles therefrom. The testimony relied on to show a breaking and entering of the storehouse was that of McDonald, one of the proprietors of the store. He testified: “I closed up that night. I locked up as usual. There are two doors to the store. I barred the back door with a crossbar. There ivas a glass front to the store. There was one rear window. It had bars across it, and ivas fastened down lower. It had iron bars on the inside. One could have broken the glass in the front door and reached in and unlocked the lock. The front door was a glass door. There was a Yale lock on that front door,— had a thumb screw in it.” “That store was burned about two o’clock in the morning.. It was some time aiter two when they woke me up. . . When I got down there the house was practically burned up; it was all fell in and in flames all over.” Certain articles found in and near the defendant’s home, of the kind described'in the indictment, were identified by the witness as articles from the stock of goods in the store-house. It was testified that the article found in the defendant’s house had been found by his son under the corner of a store-house near the burned store-house “about daylight” in the morning after the fire, and brought to his house without his knowledge. Counsel for the defendant contended that a breaking and entering had not been shown by the evidence, and in their brief in this court cited Lester v. State, 106 Ga. 371.</p>

<p>Indictment for larceny; from Bibb superior court—Judge Mathews. April 19, 1919.</p>

<p>Conceding, but not deciding, that the court erred in charging the jury that if the evidence showed that apparatus for the distilling and manufacture of intoxicating liquor was found on premises “possessed or controlled” by the defendant, the State made a prima facie case, which would entitle the State to a verdict in its favor unless the defendant showed that the apparatus was there without his knowledge, this charge does not require a new trial, under the uncontradicted evidence, in which there was testimony as to incriminatory admissions of the defendant which, under the particular facts of the case, amounted to a confession of guilt. (Stephens, J., dissents.)</p>

<p>1. The same transaction may constitute both larceny after trust and simple larceny. In such a ease there may be a conviction of either offense.</p> <p>2. If a person obtains possession of the property of another under the false pretense of a bailment, with intent to appropriate the property to his own use, and the owner intends to part with the possession only of the property, the possession is obtained unlawfully, and the subsequent appropriation in pursuance of the original intent is simple larceny.</p>

<p>Indictment for assault with intent to murder; from Early superior court-—Judge Worrill. April 16, 1919.</p>

<p>Indictment for misdemeanor; from Glascock superior court— Judge Walker. April 18, 1919.</p>

<p>The alleged newly discovered evidence in this case does not require a new trial.</p>

<p>Certiorari; from Fulton superior court—Judge Bell. March 20, 1919.</p> <p>Julius O’Neal was convicted in the criminal court of Atlanta under an accusation which charged him with receiving stolen goods, described as six pillow slips, one sheet, nineteen towels, and one hair brush, the property of the Pullman Company. The defendant demurred on the ground that the description of the goods was too vague and indefinite and not sufficient to put him on notice of what articles were received, so as to prepare his defense.</p> <p>From the evidence it appeared that the defendant conducted a rooming house in the city of Atlanta, on Mechanics street, near the store-house of the Pullman Company and near a side-tracli at the Terminal Station where ears of that company were placed. Some of the rooms in his rooming house were rented to Pullman-car porters. Officers searching the house found in the defendant’s room six pillow slips, one sheet, nineteen towels, and one hair brush, which were exhibited to the jury; and they “found nearly every room in the house either entirely or partially fitted out with sheets, towels, and pillow slips similar to these . . in size, texture, and appearance, and with ‘Pullman’ stamped or printed on them in large letters.” The officers found “in the other rooms four heavy fiannel Pullman blankets, with the word ‘Pullman’ stamped or printed in numerous places on each blanket.” They then went to the place where the defendant worked, and when they asked him what was his name, he replied that it was Brown; they searched the place “for Julius,” and when they learned he was the man they had talked to he had left the place. The officers went to a laundry patronized by the defendant and found there many sheets, towels, and pillow cases which were being laundered for him. For two or three months before this time large quantities of sheets, ■towels, pillow cases, and other goods of the Pullman Company, used in its cars, “had been missing through theft” from its storeroom at the Terminal Station and from its cars at Mechanics street, in Atlanta. The company does not sell or give away such articles, but destroys them when they are worn out. It was testified that the principal thief was unknown.</p> <p>An employee of the Pullman Company testified that “the property brought into court was the property of the Pullman Company,” and that he knew this “on account of the size, shape, color, character of goods, and the distinctive name and mark of ‘Pullman’ in large printed letters on them.” The employee in charge of the storehouse mentioned above testified that the goods mentioned were the property of the Pullman Company, and he believed they were stolen from that company in Atlanta, Fulton county, Georgia. One of the assignments of error is that the court erred in admitting the testimony of these two witnesses as to the ownership of the property, over the objection that it was a mere conclusion or opinion.</p>

<p>Although a correct statement of a principle of law was made in the request to charge, that “where agency is shown by proof of the relative situation of the parties, the agency is established no further than is necessary for the discharge of the duties ordinarily belonging to it,” there was no issue as to the authority of the agent who acted in behalf of the defendant corporation in the alleged malicious prosecution for which it was sued in this ease. The court therefore did not err in refusing to charge as requested.</p> <p>The verdict against the defendant was authorized, and no error of law appears from the motion for a new trial.</p>

<p>1. A new trial is not required because of error in using the word “are” instead of “were,” in the charge of the court to the effect that in the affidavit of illegality it was contended that the superior court of Calhoun county, from which issued the execution attacked by the affidavit, did not have jurisdiction of the defendants against whom it issued as principals, for the reason that they “are” residents of Laurens county, and not of Calhoun county. This error was a mere slip of the tongue which could not have misled the jury, in view of other instructions and of the fact that they had with them the affidavit of illegality itself.</p> <p>2. The instructions on the law of domicile, taken from the Civil Code (1910), § 2182, were not cause for a new trial on the ground that they were not applicable to the facts of the ease.</p> <p>3. There was no error in the instruction that if there was any evidence that the defendants had registered and voted in Calhoun county, this would, be a circumstance that the jury might consider in determining as to the domicile of the defendants.</p> <p>4. The requests to charge on the subject of domicile were, so far as correct and applicable, sufficiently covered by the charge given.</p> <p>5. The ground as to the admitting of evidence that the defendants said they had voted in a certain election “down here” is incomplete; and other evidence in practically the same language was admitted without objection. ' (</p> <p>0. Refusal to exclude testimony set out in ground 12 was not error for the reason assigned.</p> <p>7. It was proper to exclude testimony that the witness “would believe” certain other persons if they swore to a certain fact.</p> <p>8. There is some evidence to support the verdict.</p>

<p>Conviction of assult with intent to rape; from Gwinnett superior court—Judge Cobb. May 3, 1919.</p>

<p>Complaint; from Carroll superior court—-Judge Terrell. September 30, 1918.</p>

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

<p>Action for damages; from city court of Oglethorpe—Judge Greer. July 29, 1918.</p>

<p>Action for damages; from Muscogee superior court—-Judge Howard. August 29, 1918.</p>

<p>Trover; from Madison superior court—Judge Hodges. July 22, 1918.</p>

<p>Action for damages; from Charlton superior court—Judge Summerall. September 13, 1918.</p> <p>The injuries sued for were alleged to have been received when, in descending from the cab of a locomotive on which he was at work qualifying himself as an engineer, the plaintiff struck with his foot a lump of coal on a step of the locomotive and slipped, striking his leg against the step and then against the exposed end of a. cross-tie. It was alleged that the injuries were due entirely to fault and negligence of the railroad company, (1) because it did not furnish to him a suitable and proper step upon which to descend from the locomotive; (2) because the ties and road-bed where he was injured were unsafe and dangerous to persons rightfully on the premises of the company; and (3) because the company did not furnish to him a safe and suitable place in which to perform the duties required of him.</p> <p>The petition as amended alleged, in substance: On July 2,1912, W. J. Pamplin, a master mechanic of the said railroad company, gave petitioner written authority to ride upon its engine for the purpose of qualifying as a main-line engineer and learning the road over which petitioner was to run as such engineer. The said written authority was as follows: “Engineer Atlantic Coast Line R. R. Co., Engineers Savannah District. Permit bearer, Mr. P. Z. Alexander, to ride on your engine for the purpose of qualifying for main-line engineer. Yery truly yours, W. J. Pamplin, Master Mechanic, Waycross/ Ga., July 2, 1912.” For the purpose of so learning the line of said railroad company, on July 6, 1912, petitioner was riding engine No. 212, pulling train No. 33 of the Atlantic Coast Line Railroad Company, bound for Jacksonville, and while so riding the engine, when in the town of Folkston, Charlton county, Georgia, the engineer then and there in charge of the engine, whose orders it was his duty to obey, instructed him to fill the main-rod cup with oil. Under the universal custom of the defendant company the engineer in charge of the engine is the supreme authority upon the engine. It is likewise the universal custom observed by the defendant company that when an engineer is riding an engine for the purpose of learning the road, he is under the direction and control of the engineer in charge of the engine, and it is his cftity to obey the said engineer’s orders. Refusal to do so will terminate the employment of the engineer thus learning the road. Petitioner, in order to carry out the engineer’s instructions, took the necessary implements and started down the steps of the engine. The railroad 'company had permitted a large lump of coal, approximately six inches in diameter, to become lodged on the step leading from the cab of the engine, rendering the step dangerous, defective, and a menace to the employees of the company. The road-bed where the engine was then standing was likewise in a dangerous, unsafe, improper, and defective condition, for the reason that dirt had been dug out from between the ties of the road-bed by employees of the railroad company, so that the ends and sides of the ties were uncovered and projected above the ground for a distance of approximately eight inches. The track could have been rendered safe and suitable for the employees of the company by having the spaces between the ties filled with dirt so that the ends of the ties would be approximately flush and level with the ground. In descending from the engine petitioner seized with his hand the grab-iron on the engine and tender, provided for that purpose, and, with his back outward, proceeded to step down from the cab-flooring to the steps, between the cab and the tank on the right-hand side of the engine, thus intending to reach the ground. This was the usual and ordinary way to alight from the cab. On one arm he had a bucket of grease and on the other arm a bucket of water; in one hand he had a monkey-wrench; he was using his free hand and the hand holding the monkey-wrench in holding to the grab-iron on the side of the cab and tender, to assist him in descending. The lump of coal was on the first of two steps making up a set of steps. In stepping from the cab his foot struck the lump of coal on the step, with the result that he was caused to miss his footing and slip to the ground, striking the inside of his right thigh against the step of the engine, and the muscle of the calf of his right leg against the said cross-tie, and inflicting upon him serious injury (described). It was alleged that he was in his proper place, carrying out the orders of his superior, acting in the interest and behalf of the company, and in the exercise of ordinary and reasonable care, did not know of the dangers mentioned above, did not have equal means with the defendant of discovering them, and could not in the exercise of ordinary care have discovered them, and was free from fault; and that his injuries were due entirely to negligence of the defendant, as set out at the beginning of this report.</p> <p>The defendant demurred to the petition specially and generally; the court overruled the special grounds and sustained the general demurrer and dismissed the petition; and the plaintiff excepted. In the brief of counsel for the defendant it is contended that under the allegations of the petition the plaintiff must be treated as a mere volunteer or a licensee, and not as an employee of the railroad company; that it does not appear that he was on the engine as an apprentice or to learn the duties of an engineer, or that the master mechanic had authority to employ him or to permit him to ride on the engine; that the presence of the coal on the step of the engine and the condition of the road-bed did not constitute negligence as to the plaintiff; that his means of knowing of the coal on the step were equal to or better than those of the defendant; that he assumed the risk; that relatively to him the defendant was not under a duty to keep a level road-bed; that the alleged negligence was not the proximate cause of the injury; and that the case falls within the principle of mere accident.</p>

<p>Trover; from city court of Monroe—Judge Stone. September 19, 1918.</p>

<p>Action on insurance policy; from city court of Americus—Judge Harper. October 5, 1918.</p>

<p>Action for damages; from Bartow superior court—Judge Tarver. September 7, 1918.</p>

Action for damages; from city court of Elberton—Judge Tutt. October 12, 1918. The action was for injury to the plaintiff from a fall when an automobile in which he was riding struck the guard-rail of a bridge of the defendant county, and the rail, which was alleged to be rotten and unsafe, gave way and the automobile was precipitated from the bridge. The verdict was for the defendant.

<p>Action for damages; from city court of Americus—Judge Harper. November 2, 1918.</p>

<p>Action for damages; from city court of Jefferson—Judge Mahaffey. September 10, 1918.</p> <p>The verdict was against the defendant; its motion for a new-trial was overruled, and it excepted.</p>

Action for damages; from city court of Atlanta—Judge Reid. March 22,1919. Stephenson and another were sued for damages on account of a collision between an automobile which he was driving and an automobile in which the plaintiff was riding. The petition as amended alleged that the acts complained of were done wrongfully and intentionally.

<p>Complaint; from Fulton superior court—Judge Ellis. January 9,1919.</p>

<p>The sole issue raised by the dispossessory warrant and the counter-affidavit was whether the defendant was holding the premises over and beyond the term of his lease; and no valid defense was presented by his testimony as to an oral promise to give him a new lease, which was never executed. The court did not err in directing a verdict for the plaintiffs. ¿</p>

<p>Complaint; from city court of Newnan—Judge Post. April 7, 1919.</p>

<p>Action for damages; from Grady superior court—Judge Harrell. September 7, 1918.</p>

<p>Accusation of operating automobile while under'the influence of intoxicating liquor; from city court of Macon—Judge G-uerry. May 13, 1919.</p>

<p>Complaint; from Habersham superior court—Judge J. B. Jones. August 24, 1918.</p> <p>J. H. Hicks sued J. W. McMillan for the amount of a due bill alleged to have been made to him by the defendant. McMillan filed an answer, setting up a defense, and in the second paragraph of the answer it is stated that “defendant admits the execution and delivery of said due bill, and that plaintiff is the legal holder thereof, and defendant assumes the burden of proving his defense.” A trial of the case resulted in a verdict and judgment in favor of the plaintiff, a new trial was granted to the defendant, and, the plaintiff having died, his administrator and his widow and his daughter Blanch were substituted as plaintiffs. The defendant filed at a subsequent term of the court an amendment as follows: “And now conies the defendant, and by leave of the court amends his answer and plea in the above-stated case, and by way of amendment strikes paragraph No. 2 of his original answer wherein it is alleged that plaintiff is the legal holder of the due bill sued on. 2. Further answering and for further plea defendant says that plaintiff J. H. Hicks was not the holder or owner of said due bill at the time it was sued on, but same was owned by T. G. Spencer, same having been by said J. B. Hicks sold and endorsed over to said Spencer, and the said Spencer is holding defendant responsible to' him on said due bill.” The amendment was followed by an affidavit of the defendant that “at the time of filing his original answer and plea in the above-stated case ho did not omit the new facts and defense set out in the amended plea and. answer above for the purpose of delay, and the above amendment is not now offered for delay.” The plaintiff demurred on the following grounds: (1) There is no valid defense set forth in said amended plea. (2) The allegations in paragraph 1 of the amended plea are wholly inconsistent with and contradictory to the original plea. (3) The amended plea is not sworn to as required by law. (4) The allegations in paragraph 2 of the amended plea do not set forth any valid reason for the defendant to inquire into the title to the due bill sued on. (5) Paragraph 2 does not set forth any valid reason why the inquiring into the title of the due bill would protect the defendant or let in any defense which he seeks to make. (6) The amended plea does not set forth how T. G. Spencer is holding the defendant responsible for said due bill. (7,) The amended plea does not show by what authority or right the said Spencer holds or claims title to the due bill. (8) The amended plea does not allege why the defendant could not have known or did not know that Spencer claimed to own the due bill at the time the original plea was filed. (9) It is not alleged how Spencer is asserting his rights to the due bill against the defendant, or why a trial of this case will not be a bar to any suit by Spencer. The court overruled the demurrer, and the plaintiff filed exceptions pendente lite, assigning error on this ruling. At the subsequent trial "the pleadings were read to the jury,” and "the plaintiff then put in evidence the year’s support proceedings taken out by Mrs. Lula D. Hicks as widow of J. II. Hicks for herself and minor daughter, Blanch Hicks, and the return of the appraisers . setting apart as a portion of the year’s support the debt represented by the due bill sued on in this case and the judgment based thereon, valued at $100, which year’s support was by the court of ordinary duly approved and admitted to record.” The plaintiffs then rested their case, and the court, on motion of the defendant, granted a nonsuit. In the final bill of exceptions the plaintiffs assign error on their exceptions pendente lite and say that “the court erred in allowing said amendment and overruling said demurrer on all the grounds thereto made at the time said amendment was offered and before it was allowed and filed, as fully appears in the exceptions pendente lite'of record.” Also: “To the granting of the non-suit of the plaintiff’s case' . . the plaintiffs then and -there excepted and now except and assign said ruling and judgment, nonsuiting said case as error.”</p>

<p>Action on bond; from Brooks superior court—Judge Tboinas. September 14, 1918.</p>

<p>Complaint; from Muscogee superior court—Judge Terrell presiding. September 25, 1918.</p>

(Certiorari granted by the Supreme Court.) Action for damages; from city court of Carrollton—Judge Beall. September 13, 1918.

<p>Distraint; from city court of Zebulon—Judge Dupree. August 31, 1918.</p> <p>Collier sued out a distress warrant to recover from Silver the-rent of a store; and the defendant filed a counter-affidavit in which he claimed damages on account of alleged negligence on the part of the plaintiff in allowing water to run from pipes opening in an office belonging to the plaintiff over the store rented to the defendant. There was testimony as to damage to goods in the store from water which came from the pipes mentioned, and as to the opening of spigots to drain the pipes, and orders by the plaintiff to open them for that purpose, etc. The trial resulted in a verdict against the defendant for the full amount of the plaintiff’s claim.</p>

<p>Indictment for murder; from Colquitt superior court—Judge Thomas. November 30, 1918.</p>

<p>Accusation of public indecency; from city court of Tifton— Judge Price. March 10, 1919.</p>

<p>Action on insurance policy; from Wilkes superior court—Judge Walker. August 6, 1918.</p>

<p>Exceptions to auditor’s report; from Campbell superior court-judge Smith. July 9, 1918.</p>

<p>Action on insurance property; from Fulton superior court— Judge Ellis. September 28, 1918.</p>

<p>Levy and claim; from Gordon superior court—Judge Tarver. August 27, 1918.</p>

<p>Permission to withdraw the bill of exceptions and file it in the court below as exceptions pendente lite will not be granted where due service of the bill of exceptions was not made or waived and where the only reason given for this omission is “inadvertence” on the part of the plaintiff in error.</p>

<p>Complaint; from Liberty superior court—Judge Sheppard. September 17, 1918.</p>

<p>Certiorari; from Chatham superior court—Judge Meldrim. December 6, 1918.</p> <p>Oliver, an undertaker, sued the insurance company, in the municipal court of Savannah, for $50, as the amount of a death benefit provided for in a policy issued by the defendant to Aaron Minyard, the petition alleging that the insured died while the policy was in force, that the plaintiff was the undertaker who 'buried him, that the policy was “given” to the plaintiff by Caroline Minyard, the beneficiary named in it, to be applied on the burial expenses, that the amount named was due to the plaintiff as burial expenses, that proof of death had been duly made and presented to the defendant, and that payment of the policy was refused. Under the terms of the policy (a copy of which was attached to the petition) it was payable “to the beneficiary named,” Caroline Minyard, “to the legal representatives of the insured, or to an undertaker as the expenses of the burial of said insured.” The defendant demurred and moved to dismiss the petition “on the ground that only the beneficiary named in the policy could bring the suit, and that the undertaker could not bring the suit.” The demurrer was overruled. At the trial the plaintiff introduced in evidence the policy sued on, and testified that he was the undertaker who buried the insured, that there was due him $50 for burial expenses, that “the dead man’s brother brought the policy to him and made all the arrangements for the funeral, and that he did not represent the beneficiary named in said policy,” that the policy was “given” him by the dead man’s brother; and that he (the plaintiff) did not have an order from the beneficiary named in the policy, and did not see her. “The plaintiff introduced the following additional testimony.: that the beneficiary- had no money interest in the said policy; in other words, the policy was taken out by the insured and all the premiums were paid by the insured; that the beneficiary had made no claim nor taken any steps to recover under the policy; that two days before he died, while on his death bed, the insured had stated that he wanted the policy given to Sam Oliver [the plaintiff] to pay for his burial expenses; . . that demand was made on the company by the plaintiff, and proofs of death were submitted, in accordance with the terms of the policy.” No further evidence was introduced. The defendant moved to dismiss the suit, on the ground that the plaintiff had failed to make out a prima facie case. The,court overruled the motion and rendered judgment in favor of the plaintiff. The defendant sued out certiorari, assigning error on the rulings and judgment stated. The judge of the superior court overruled the certiorari, with direction that $25 be written off from the judgment, because of a provision in the policy that only a half of the benefit should be paid if the insured should die within six months from the issuance of the policy. The insurance company excepted. In the judgment overruling the certiorari the judge said: “I am of the opinion that, as the insurance company undertook to pay the beneficiary, or the legal representatives of the insured, or the undertaker, the death benefit, payment by the company to any one of these will discharge the obligation.”</p>

<p>Complaint; from Crisp superior court—E. F. Strozier, judge pro hac vice. December 5, 1918.</p>

<p>To an action on promissory notes purporting to have been given “for value received” a sufficient defense was set forth, and the plea was not subject to demurrer on the ground that it sought by parol to vary and abrogate a written contract, where it alleged in substance that the plaintiff and the defendant entered into a parol contract whereby the plaintiff agreed to furnish to the defendant his necessary bare living-expenses during the life of the contract, and the defendant, in consideration of that undertaking, agreed to render services as real estate agent in buying and selling real estate for the plaintiff, and it was mutually agreed that any profits made should be equally divided, and if none were made the plaintiff should stand the loss of the expenses so advanced and the defendant should stand the loss of his services, and that the contract might at any time be terminated at the option of either party; that in pursuance of this contract the defendant rendered services in buying and selling real estate for the plaintiff from a given date during the life of the contract until it was terminated by mutual consent; that during that period the plaintiff advanced to the defendant the amount of the notes sued on, to cover his expenses as contemplated in the contract, and the notes were executed for the sole purpose of preserving a record of the amount so advanced, and there was no consideration moving from the plaintiff to the defendant for the execution of the notes; that during the life of the contract the defendant’s bare living expenses were actually at least the, amount of the notes; that no profits were realized; and that by reason of the foregoing facts the notes were without consideration and are not obligations binding the defendant.</p>

<p>1. An option to purchase property can be “exercised,” unless otherwise provided in the option contract, by the mere giving, within the life of the option, of an unconditional notice, by the holder of the option, to the other party or his agent, that the former has elected to purchase the property at the price and upon the terms stated in the option contract.</p> <p>(a) An option to purchase can be exercised without the payment of the purchase-price, or the tender thereof, unless the option contract provides for such payment as a condition precedent to the exercise of the option.</p> <p>2. A broker is entitled to his commissions where, as agent of the owner, he procures a purchaser ready, able, and willing to purchase, and who actually offers to purchase on the terms stipulated by the owner. Civil Code (1910), I 3587. This provision of the code applies where the purchaser procured by the broker first buys an option to purchase, and subsequently, within the life of the option, exercises his option by electing to purchase and gives timely and unconditional notice thereof to the other party. In such a case the broker’s right to his commissions does not ripen into a cause of action until the option has been actually exercised. As soon, however, as the option has been exercised, his cause of action is complete.</p>

<p>Action on contract; from Fulton superior court—Judge Humphries. February 3, 1919.</p>

<p>Certiorari; from Fulton superior court—Judge Ellis. January-30, 1919.</p> <p>In this case a tenant of rooms in an apartment house sought to recover the value of the contents of a trunk alleged to have been stolen or destroyed while stored in a storage room of the house and in the custody and control of the defendants. In the rent contract J. T. Turner, “agent,” was named as lessor, and it was signed by him; and the suit was against J. T. Turner and Mrs. Ida Alma Turner. The contract provided that certain rules of 'the apartment house should be a part of the contract, one of which was that “the rental in this lease includes storage room, which must be used for storage purposes only.” Another provision of the contract was as follows; “All personal property placed in the premises . . shall be at the risk of the lessee or owner, and lessor shall not be liable for any damages to said personal property, or to the lessee arising from the bursting or leaking of water or steam pipes, or from any act of negligence of an;y- cotenant or occupants of the building, or of any other person whomsoever.” At the trial in the municipal court of Atlanta the rent contract was introduced in evidence, and the plaintiff testified as follows; He placed in the storage room referred to in Hie lease contract a certain trunk containing the articles described in his petition. The trunk was locked and his wife had a key to it. The storage room also was kept locked, and the only persons who carried a key to the room were the defendant J. T. Turner and the janitor who worked at the apartment house. He (the plaintiff) had no key to the storage room. Whenever he desired to enter his trunk he had to get the janitor or Mr. Turner to unlock the storage room and allow him to enter, and he entered it on two occasions after having stored the trunk there. On the second occasion his wife was out .of town and he had to get a locksmith to unlock the trunk for him. When it was unlocked he discovered that the articles described in the petition had been removed from the trunk. Each time that he went into the storage room the janitor unlocked the door of the room and remained with him until he went out. He could not enter the storage room except by permission of J. T. Turner or the janitor. He could not watch over his property stored therein, on account of having no key and no access to the room except when let in by J. T. Turner or the janitor. Other tenants had property stored in the storage room. The reasonable market value of the articles described was the amount stated in the petition. The defendants refused to pay him their value. J. T. Turner was introduced as a witness for the plaintiff and testified that Mrs. Ida Alma Turner’s husband had employed him to rent the apartments of the apartment house referred to, and that in signing the lease contract as agent he represented the owner of the house. Mrs. Ida Alma Turner was introduced as a witness for the plaintiff and testified that J. T. Turner, in making the lease contract, was acting as her agent and represented her; that she was the owner of the house and it was rented for her benefit; that she had nothing to do with the management of the house; that the rental of the apartments Was under the management and control of her husband, and he had authority to employ others to make lease contracts in her behalf, and she received the benefit under this lease contract; that she knew nothing of the articles which the plaintiff claimed to have lost, and did not know whether he had lost them; that even if they were lost she was under no obligation to pay him for them. At the conclusion of the testimony the judge, on motion of counsel for the defendants, granted a nonsuit. An oral motion for a new trial was overruled; certiorari was sued out, and the judge of the superior court sustained the certiorari and ordered a new trial. The defendants excepted. It was contended in the brief of their counsel that the relation of bailor and bailee did not exist between the parties; that the contract released the landlord from responsibility for loss of the property; that no negligence or lack of diligence was shown; and that a judgment against the agent, J. T. Turner, would not stand.</p>

<p>1. The plaintiff’s petition not showing that a defect in the condition of the street was the proximate cause of the alleged injury when she was tripped and thrown by the wire stretched across the sidewalk by the defendant hardware company, the court did not err in sustaining the general demurrer of the city and dismissing the suit against it as a joint tort-feasor.</p> <p>2. NTo theory of accident was involved in the case, and tho court did not err in not charging the jury on such a theory.</p> <p>3. The charge of the court was not subject to the exceptions taken, the evidence authorized the verdict, and the court did not err in overruling the motion for a new trial.</p>

Action for damages; from Bartow superior court—Judge Tarver. January 16, 1919. The action was against the Western and Atlantic Bailroad Company and the Seaboard Air-Line Bailway jointly for injuries to a brakeman of a freight-train of the first-named company, who fell through an opening between cross-ties when walking at the side of tracks over an underpass, on his way to reach the engine of his train.

<p>Certiorari; from Franklin superior court—Judge W. L. Hodges. February 11, 1919.</p>

Certiorari; from Fulton superior court—Judge Ellis. January 22, 1919. The exceptions were to the overruling of a certiorari in a case from the municipal court of Atlanta in which W. S. Cox was sued by the Charles Cone Realty Company for a commission of $190 alleged to be due the plaintiff as agent for the defendant in the sale of a certain meat market and grocery store. The trial in the municipal court resulted in a judgment in favor of the plaintiff for the amount sued for.

Complaint; from Fulton superior court—Judge Pendleton. March. 8, 1919. In this suit a former salesman of the defendant sought to recover $2,400 as commissions on gales, and sought discovery as to the amount of the sales, etc. The petition alleges, in substance, that on June 1, 1914, the plaintiff entered the employ of BantaCole Company as a salesman. The company was engaged in the business of selling watches and jewelry, both for cash and on the installment plan.

<p>Action on bond; from Taylor superior court—Judge Kent presiding. February 15,1919.</p>

<p>Where the petition in an action for personal injuries from electricity alleged that the defendant was the owner of a house supplied with electricity by a named company through wires owned by the defendant; which were strung on poles extending across an adjoining uninclosed tract of woodland separated from the defendant’s premises by a fence and not owned by the defendant, that the plaintiff (a boy ten years old) had been picking blackberries there, and, when returning to I1Í3 home and running along a much used and worn pathway on this tract of woodland and near the defendant’s fence, he stumbled, and in falling threw out a hand and caught hold of one of the electric wires, from which a part of the insulation had worn off and which was then and for more than two months had been sagging near the ground, and his hand was burned by it, that people for a great number of years had been accustomed to travel upon this land along the place where he was injured, and that the defendant knew, or in the exercise of ordinary care should have known, of this use of the pathway and of the dangerous condition of the wire described, no cause of action was shown by the petition, if not appearing that the plaintiff was there because of inducement or invitation on the part of the defendant, either express or implied, or that the character of the pathway was such as to amount to invitation or permission to use it, or that the injuries resulted from his use of the path while availing himself of such permission.</p>

<p>Action for damages; from Walton superior court—Judge Cobb. February 20,1919.</p>

<p>Trover; from Newton superior court—Judge Smith. March 28, 1919.</p>

Bule; from Fulton superior court—Judge Bell. March 34, 1919. The petition of Cleveland Cox for a rule against Fred E. Harrison, an attorney at law, was dismissed on motion of the defendant on the ground that it failed to show that the relationship of attorney and client existed between them. The petition in substance alleges: Fred E. Harrison, the defendant, is an attorney at law, practising as such at the Atlanta bar.

<p>Indictment for manufacture of intoxicating liquor; from Gwinnett superior court—Judge Cobb. February 13, 1919.</p>

<p>Garnishment; from Haralson superior court—Judge Irwin. April 7, 1919.</p>

<p>It not appearing that the alleged promise of the defendant to pay to the plaintiff the amount of the plaintiff’s execution against another was in writing, or that the promisor was, by mutual agreement of the plaintiff, the debtor, and himself, substituted for the debtor, and the original debtor released, the court did not err in sustaining the demurrer to the plaintiff’s petition, from which it appeared that the defendant bought from the debtor certain property under an agreement to take up the liens against it, and promised the plaintiff to pay off the execution if the plaintiff would not levy on the debtor’s property, and that, relying on this promise, the plaintiff did not levy, and thereafter the defendant in execution became insolvent.</p>

Trover; from Colquitt superior court—Judge Thomas. April 10, 1919. Application for certiorari to review this decision was denied. A report of facts in this case appears in 22 Get. App. 684. On the last trial the court directed a verdict in favor of the plaintiff, and the defendant again brought the case to this court, on direct exceptions to the directing of the verdict and to certain rulings on the trial.

<p>Complaint; from city court of Floyd county—Judge Norm ally. April 34, 1919.</p> <p>The action was against the alleged father of a two-year-old girl, by her grandmother, for the value of necessaries and care of the child. The petition alleges: Since the birth of said child, notwithstanding that it is the duty of said father to support said child, he has abandoned the child and failed and refused to support it, and has failed and refused to furnish it with the necessities of life. Petitioner is the grandmother of said child, and if she had not taken charge of the child and provided it with necessities of life, and cared for it, the child would have died. The mother of the child has deserted and abandoned the child. Upon the abandoning of the child by the defendant, he left the child in the possession and custody of plaintiff, where it has remained ever since. Petitioner has supported the child since its birth, and provided it with necessities of life since that time, and the father of the child has not paid her for such service. The care, support, and necessaries of life furnished the child by petitioner are reasonably worth $15 a month, and the defendant is justly indebted to petitioner in that sum for 35 months, beginning January 30, 1916, to wit, in the sum of $375. A general demurrer to the petition was overruled. The defendant in his answer admitted that since the birth of the child he had refused to support it, and had not paid anything towards its support; he denied that he was its father. The only evidence on the trial was the testimony of the plaintiff. Her testimony supported the allegations of fact in her petition. The verdict was for the plaintiff.</p>

<p>Indictment of possession of intoxicating liquor; from Forsyth superior court—Judge Morris. May 10, 1919.</p>

<p>Certiorari; from Fulton superior court—Judge Bell. April 7, 1919.</p>

<p>Complaint; from city court of Houston county—Judge Eiley. November 18, 1918.</p>

Action for damages; from city court of Richmond county—Judge Black. December 21, 1918.

<p>Trover; from Butts superior court—Judge Searcy. January 11, 1919.</p>

<p>The recovery of the commission sued for as compensation for procuring a purchaser and bringing about the sale of land sold by the defendant was authorized by the evidence.</p> <p>The alleged newly discovered evidence was merely cumulative and impeaching in its nature, and did not require a new trial.</p>

Action for damages; from Chatham superior court—Judge Meldrim. January 37, 1919. Application to the Supreme Court for certiorari in this case was refused. Thomas sued the Central of Georgia Eailway Company for injuries alleged to have been received when he stepped on a broken draft bolt in the railway company’s repair yard while engaged with a gang of employees of the company in pulling car-wheels on a track for the purpose of moving them.

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

Certiorari; from Tattnall superior court—Judge Sheppard. February 7, 1919. The signature “W. T. Burkhalter, indorser,” under the signature W. L. Strickland,” appeared on the back of a promissory note signed by J. F. Burkhalter as maker, upon'which the persons named were sued in a justice’s court by the payee, L. P. Conley.

<p>Eviction; from Glynn superior court—Judge Highsmith. February 22, 1919.</p>

<p>Action for damages'; from Miller superior court—Judge Worrill. March 27, 1919.</p>

<p>Complaint; from Wilkinson superior court—Judge Park. April 9, 1919.</p>

<p>Although the verdict in favor of the plaintiff was not by its terms a verdict against Ellis Lovell alone, his codefendant, Mrs. Lovell, was eliminated from the ease by the instructions of the trial judge in accordance with the ruling of the Supreme Court in the same case, and by the plaintiff in dismissing the ease as to her under the order of the trial judge on the motion for a new trial; and, the verdict as against Ellis Lovell being authorized by the evidence,.a new trial was not requii’ed, and the judgment refusing a new rrial is affirmed.</p>

<p>Complaint; from Colquitt superior court—Judge Thomas. April 8, 1919.</p> <p>Application for certiorari to review this decision was denied by the Supreme Court.</p>

<p>Refusal to continue the ease because of the absence of leading counsel can not in this case be held to have been an abuse of discretion.</p> <p>The evidence authorized the conviction of the accused.</p>

<p>Accusation of abandoment of child; from city court of Floyd county—Judge Nunnally. April 24, 1919.</p>

<p>Certiorari; from Fulton superior court—Judge Bell. April 10, 1919.</p>

<p>Accusation of riot; from city court of Floyd county—Judge Nunnally. May 5, 1919.</p>

<p>Condemnation; from city court of Albany—Judge Clayton Jones. May 12 1919.</p>

<p>Accusation of misd ueanor; from city court of Dublin—Judge Flynt. May 19, 191,/.</p>

<p>Conviction of manslaughter; from Fulton superior court—Judge Humphries. May 33, 1919.</p>

<p>Garnishment; from Cobb superior court—Judge Morris. May 10, 1919.</p>

<p>Conviction of manslaughter; from Bibb superior court—Judge Mathews. May 21, 1919.</p>

<p>Indictment for misdemeanor; from Harris superior court— Judge Howard. May 17, 1919.</p>

<p>Conviction of manslaughter; from Toombs superior court— Judge Hardeman. April 29, 1919.</p>

<p>Petition to set aside sale; from Cobb superior court—Judge Morris. May 10, 1919.</p>

<p>Affidavit of illegality; from Taliaferro superior court—Judge Walker. February 36, 1919.</p> <p>It was contended on the part of Bird that he was still treasurer on January 1, 1917; that his term as fixed by law extended into that day; that he continued to hold office until his successor was elected and qualified as provided in the act of 1915, supra, and that he could not, by the failure of the tax-collector to pay over taxes collected in December, be deprived of commissions thereon. Counsel for Bird cited: Act of 1915, supra; Civil Code (1910), §§ 113, 564, 361, 587, 1311, 1314, 6599; 107 Ga. 363; 117 Ga. 388, 391; 114 Ga. 734; 33 Am. & Eng. Ene. L. (3d ed.) 397 (b) 410, 411; 133 Ga. 737, 730; 134 Ga. 387; 109 Ga. 837 (3); 53 Ga. 344 ; 38 Cye. 318; 4 Words & Phrases, 3983; 145 Ga. 881-3 (7); 11 Cyc. 443 (d), 443; 39 Cye. 1435 (e).</p>

<p>Indictment for seduction; from Bacon superior court—Judge Summerall. November 18, 1918.</p>

<p>Indictment for murder; from Bibb superior court—Judge Mathews. April 22, 1919.</p>

<p>Conviction of manslaughter; from Sumter superior court—Judge Littlejohn. April 5, 1919.</p>

<p>Conviction of manslaughter; from Thomas superior court— Judge Thomas. February 8, 1919.</p>

<p>Indictment for arson; from Sumter superior court—Judge Little-john. May 3, 1919.</p>

<p>Conviction of sbooting at another; from Walker superior court— Judge Wright. May 2, 1919.</p>

<p>Conviction of manslaughter; from Tattnall superior court— Judge Sheppard. April 29, 1919.</p>

<p>Accusation of disturbing divine worship; from city court of Sparta—Judge Moore. June 7, 1919.</p>

<p>Complaint; from city court of Houston county—Judge Riley. May 28, 1919.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Affidayit of illegality; from city court of Cairo—Judge Eigsby, May 26, 1919.</p>

<p>Indictment for shooting at another; from Appling superior court —Judge Highsmith. May 10, 1919.</p>

<p>Indictment for murder—conviction of manslaughter; from Colquitt superior court—Judge Thomas. May 22, 1919.</p>

<p>Accusation of misdemeanor; from city court of Macon—Judge Guerry. June 10, 1919.</p>

<p>Accusation of intoxication on highway; from city court of Carrollton—Judge Beall. May 26, 1919.</p>

<p>Affidavit of illegality; from city court of Milieu—Judge Delde. April 22, 1919.</p>

<p>Complaint; from Marion superior court—Judge Howard. May 1, 1919.</p>

<p>Certiorari; from Chatham superior court—Judge Meldrim. May 17, 1919.</p>

<p>Indictment for manufacture of intoxicating liquor; from Cherokee superior court—Judge Morris. May 10,1919.</p>

<p>Application for mandamus.</p>

<p>Accusation of larceny; from city court of Millen—Judge Dekle. June 2, 1919.</p>

Action for damages; from city court of Carrollton—Judge Beall. December 10, 1918. The demurrer was on the ground that the suit “is based on torts, if any there be, arising both ex contractu and ex delicto.-” The petition alleges that the defendant has injured and damaged the plaintiff in the sum of $800, as shown by the facts set forth.

<p>Action for damages; from Floyd superior court—Judge Wright. January 9, 1919.</p> <p>The City of Rome was sued for damages on account of.the death of the plaintiff’s husband, alleged to have been caused by electricity when he came in contact with an uninsulated wire sagging over a pathway in the city. The plaintiff’s petition was dismissed on general demurrer. The petition alleges that this wire was a part of the line of the Rome Railway & Light Company, and had been strung on a glass knob attached to the cross-arm of a pole “erected on the west side of the Summerville road, about 30 or 40 feet on the south side of the Rome and Decatur Railroad trestle.” Immediately beneath the wire and about half way between the pole and the trestle was the pathway mentioned above. The pathway had been used by the public for a great number of years, and showed signs of considerable use, “all of which was known to the City of Rome, or by the exercise of ordinary [care] could have been ascertained, for the usage of said pathway was open, notorious, peaceable, and without restriction, and one Poole, who was then in the employment of the City of Rome, guarding its convicts, knew of the existence and usage of said pathway.” The insulation of the wire had worn off, and its unprotected condition had existed for several years. On September 8, 1916, the glass knob to which the wire was attached was struck and broken by a rock hurled against it by blasting conducted by the city,'and this caused the wire to sag to within four or five feet of the ground just over the pathway mentioned. The breaking of the knob and the sagging of the wire and its uninsulated condition were at once brought to the attention of Poole, the city’s guard or agent in charge of the blasting, and he requested a person not in the employment of the city to notify the Koine Railway & Light Company of the condition of the wire and to repair it. It remained in this condition until the plaintiff’s husband was killed; and the defendant knew that it was in this condition. The plaintiff’s husband started to his home some time after eleven o’clock at night on the same date from a store situated about a hundred yards from where he was killed, and, as had been his custom for years, “he started to go along the pathway aforesaid, and came in contact with said heavily charged non-insulated wire and was instantly killed.” It is alleged ■that the City of Rome was in charge, possession, and control of the tract of land where he was killed. “The defendant was engaged in widening and straightening the street, which was a public street of said city, at the place contiguous to where said Higginbotham was killed, and in order to widen said street it was necessary to remove the rock at the place where said Higginbotham was killed. When said Higginbotham was killed he was only a few feet from the public street as then in use. The defendant, in doing this work, was carrying out its avowed project of straightening said street.”</p> <p>The petition contains specific allegations of negligence of the city in allowing the wire to hang as close to the pathway as it did, and in the condition in which it was, and in not placing a guard at that point to prevent injury after having discovered that the breaking of the knob had caused the wire to sag. There are also allegations as to the age and earning capacity of the plaintiff’s husband, and as to notice of the claim, etc.</p> <p>In the brief of counsel for the defendant it was contended that the city was under no duty as to the condition of the place at which the plaintiff’s husband was killed, and that he was at fault in leaving the public street and going at night on a path on private property which proved to be dangerous.</p>

<p>Attachment; from city court of Bainbridge—Judge Spooner. January 4, 1919.</p>

<p>Foreclosure of mortgage; from Taylor superior court—Judge Howard. November 16, 1919.</p>

<p>Actions for damages; from city court of Atlanta—Judge Reid. December 7,1918.</p>

<p>Where to an action of trover for a diamond stud, sold by the plaintiff to the defendant under a contract in which title was retained in the vendor until full payment of the purchase price, the defense pleaded was that the stud had been lost without fault on the part of the defendant, and where the only testimony on this point was his statement that he “lost the same while in bathing,” the defendant failed to carry the burden which the law imposed upon him, and the evidence demanded a finding in favor of the plaintiff. Such a finding having been made by the judge of the municipal court (who tried the case without a jury), it was error for the judge of the superior court to set the judgment aside on certiorari and grant a new trial.</p>

<p>Actions for damages; from city court of Atlanta—Judge Beid. December 7, 1918.</p>

<p>Levy and claim; from city court of Nashville—Judge Lovett. December 31, 1919.</p>

<p>Complaint; from city court of Yaldosta—Judge Cranford. January 28, 1919.</p>

<p>1. Section 402 of the Civil Code of 1910 makes it the duty of the county authorities in this State to furnish the different county offices with “office supplies generally,” and this would include a telephone in the office of a clerk of the superior court whenever it appears that its installation is reasonably necessary to carry on the legitimate business of that office.</p> <p>2. The court, therefore, did not err in overruling the demurrer attacking the plaintiff’s petition on the ground that he, as clerk of the superior court of Eloyd county, had no authority to have installed in his office at the expense of the county a telephone which he alleged to have been necessary to carry on properly the legitimate county business.</p>

<p>Appeal; from Barrow superior court—Judge Cobb. February 13, 1919.</p>

<p>Motion for new trial; from Douglas superior court—Judge Bartlett. December 27, 1918.</p>

<p>Eviction; from Hall superior court—Judge Jones. March 22, 1919.</p>

<p>Complaint; from city court of Atlanta—Judge Reid. March 8, 1919.</p>

<p>Action for damages; from Fulton superior court—Judge Ellis. January 11, 1919.</p>

<p>Application for discharge from custody; from Floyd superior court—Judge Wright. February 15, 1919.</p>

<p>Motion to arrest judgment; from city court of Bainbridge—John R. Wilson, judge pro liac vice. March 31, 1919.</p>

<p>Petition for certiorari; from Upson superior court—Judge Searcy. March 24, 1919.</p>

<p>Complaint; from city court of Carrollton—Judge Beall. April 7, 1919.</p>

<p>Action for damages; from Liberty superior court—Judge Sheppard. April 9, 1914.</p>

<p>Whether acceptance of an offer to sell was within a reasonable time was a question for the jury, under the allegations of the plaintiff’s (the acceptor’s) petition, where it appeared that the offer was made by letter dated on the 22d day of the month, mailed at Augusta, Georgia, and addressed to Jacksonville, Elorida, and the acceptance was by telegram from Jacksonville, dated on the 24th day of the same month.</p>

<p>Distraint; from Twiggs superior court—Judge Kent. May 1, 1919.</p>

<p>Certiorari; from Fulton superior court—Judge Bell. April 4, 1919.</p>

<p>Complaint; from city court of Cairo—Judge Bigsby. May 26, 1919.</p>

<p>Trover; from city court of Dublin—Judge Flynt. May 19, 1919.</p>

<p>Indictment for violation of prohibition law; from Mitchell superior court—Judge Harrell. September 2, 1918.</p>

<p>Exclusive right to sell in Evans county (except in municipalities) articles manufactured or sold by the plaintiff was granted by the contract under which it was sought to recover the price of goods sold to the principal defendant; and the court erred in striking the defendants’ pleas, in which they set up that the plaintiff had violated the contract by allowing a certain agent to sell and deliver in a designated part of the county goods delivered to him by the plaintiff.</p>

Indictment for murder—conviction of manslaughter; from Gilmer superior court—Judge Morris. February 14, 1919. Plato Hudson killed Miles Watkins. The only eye-witness of the homicide who testified at the trial was Andrew Sluder, at whose house it occurred.

<p>Indictment for burglary; from Bibb superior court—Judge Mathews.</p> <p>For the facts, see the report of this case in 149 Ga. 480 (100 S. E. 637).</p>

<p>Complaint; from Monroe superior court—Judge Searcy. February 10, 1919.</p> <p>Stallings sued White and Manning on a promissory note for the purchase price of a mare. The defendants filed answers in which they admitted the execution of the note but denied indebtedness thereon, and alleged that “plaintiff sold said note to S. Silver, who afterwards brought trover suit in the city court of Barnesville against-and recovered a judgment for the amount of said note, which judgment has been paid off and settled in full.” Manning alleged also that “while his name appears on said note as joint maker, he had no connection with said transaction, and thought he signed said note only as a witness, but through an oversight signed the wrong line, which makes him appear as joint maker.” The defendants offered as an amendment a certified copy of a trover suit of S. Silver against Warren Jenkins, and of a judgment for the plaintiff therein, in the city court of Barnes-ville, in which the property sued for was described as in the above-mentioned note,—one bay mare six years old and weighing about 800 pounds. The court, on motion of the plaintiff’s counsel, on the ground that no legal defense was set forth, struck the answers; the court then directed a verdict for the plaintiff, and the defendants excepted.</p>

<p>Certiorari; from Fulton superior court—Judge Ellis. January 20, 1919.</p> <p>The case is described in the bill of exceptions as “the case of Clarke & Wood versus J. P. Brooke et al., for use of J. P. Brooke, the same being a certioriari,” etc. The bill of exceptions does not elsewhere mention the defendant or defendants in error. An acknowledgment of service thereon is signed, “W. H. Lewis, attorney for defendant in error.” The judgment complained of is dated January 20, 1919. The bill of exceptions says: “Plaintiffs in error come on this the 19th day of March, 1919, and within the time prescribed by law, and present . . their bill of exceptions,” etc. The motion to dismiss the writ of error is on the grounds: (1) that the bill of exceptions does not name all the parties defendant; (2) that it does not appear that service on any of the defendants designated as “et al.” was made or acknowledged or waived; that the acknowledgment signed by W. H. Lewis as attorney for “defendant” could only be construed as referring to the defendant J. P. Brooke, named in the bill of exceptions; and (3) that it appears from the bill of exceptions that it was tendered and certified more than thirty days after the rendition of the judgment excepted to, and it does not appear when the court adjourned.</p>

<p>Complaint; from city court of Floyd county—Judge Nunnally. March 15,1919.</p>

<p>Conviction of assault with intent to rape; from Jeff Davis superior court—Judge Highsmith. April 4, 1919.</p>

<p>Indictment for misdemeanor; from Glascock superior court— Judge Walker. April 25, 1919.</p>

<p>Complaint; from Baldwin superior court—Judge Park. May 22, 1919.</p>

<p>Conviction of assault with intent to rape; from Berrien superior court—Judge Thomas. May 25, 1919.</p>

<p>Indictment for fornication; from Appling superior court—Judge Highsmith. May 10, 1919.</p> <p>While the witness for the prosecution was testifying the presiding judge asked her a number of questions as to when and where she had sexual intercourse with the accused, etc., and at the conclusion of her testimony counsel for the accused moved that the court declare a mistrial, on the grounds, that “the examination by the court of the prosecuting witness was extended and upon the vital points of the case, and was a gross injustice to the defendant, and was calculated to confuse and mislead the jury with respect to the attitude of the court on the merits of the case, and deprived the defendant of a fair and impartial trial; that it had a tendency to lead the jury to believe the judge was giving special attention to the testimony of the witness and taking undue interest in the case, and had the effect of discrediting his defense before the jury.” The court overruled the motion, and this is complained of in the motion for a new trial; and it is further contended that the judge in his questions to the witness assumed that sexual intercourse had occurred between the witness and the accused, and thus expressed or intimated an opinion “in violation of the law.” In a note to these grounds of the motion for a new trial the judge said: “The witness was a young, excited, nervous country girl, apparently soon to become a mother. The examination of counsel for movant was such as to indicate that the case was rape, instead of fornication as charged. At the' conclusion of the cross-examination it appeared, from the questions asked and answers given, that movant was guilty of rape, if anything. The questions asked by the court were with the intention and for the purpose of ascertaining whether the alleged acts of intercourse, if they occurred in fact, made a case of rape, or only of fornication.”</p>

<p>Conviction of assault with intent to rape; from Stewart superior court—Judge Littlejohn. May 30, 1919.</p>

<p>Indictment for robbery; from Chatham superior court—Judge Meldrim. June 9, 1919</p> <p>The indictment charged that the robbery was committed by making an assault on Louise Sunday and taking her pocket-book from her by force and intimidation and without her consent. She testified that she went to a certain store and had on a large coat with a long sleeve, and in the right hand pocket of the coat had her purse with her hand over it, holding it; that she was looking around at things in the store, and had an article in her hand, and felt something in her sleeve, and “thought it was the coat sleeve that was so long,” and raised her hand up out of the pocket, where the purse was, to fix the sleeve, and as she put her hand back in her coat-pocket her pocket-book was gone; that at the same moment she turned around and saw two colored women standing behind her, and as she turned they told her that two boys had stolen her pocketbook; she saw the two boys running and “took after them;” she discovered that the pocket-book was gone when the colored women told her about it. It was testified that the defendant, when arrested, said that a certain other man snatched the pocket-book and gave it to him.</p>

Accusation of misdemeanor; from city court of Mullen—Judge Dekle. June 2, 1919. A deputy sheriff testified, that he broke the lock of the defendant’s smoke-house and discovered there a keg containing twenty or thirty gallons of'corn beer, and found also a bottle which he smelled and which “had had moonshine liquor in it;” there was no whisky in the bottle; “there may have been a drop or two.” He further testified: The beer “was intoxicating.

<p>Conviction of manslaughter; from Jasper superior court—Judge Park. June 7, 1919.</p>

<p>Indictment for robbery; from Oglethorpe superior court—Judge W. L. Hodges. May 27, 1919.</p> <p>Application for certiorari was denied by the Supreme Court.</p> <p>1. The indictment charged that on August 20, 1918, Mose Goolsby and another violently, by force and intimidation and by drawing a pistol on Jerry Wymbs, took $5.17, his property, from his person without his consent, and carried it away with intent to steal the same. According to the testimony for the State, the defendant Goolsby, about the time alleged, met Wymbs (or ‘Weims’) in a road at night, pointed a pistol in his face, and told him to turn his pockets if he had any money; Wymbs pulled out his pocket-book, and Goolsby grabbed it and went off with it, taking $5.17, his money. Wymbs testified: “He [Goolsby] had his pistol in his hand. He took my money away from me by drawing his pistol on me and by intimidating me. I was afraid. He jerked the pocket-book out of my hand, and he said, ‘Get up the road or I will kill you/ . . It was taken away without my consent.” Goolsby, in his statement and by witnesses, sought to establish an alibi. The jury rendered a verdict of guilty.</p> <p>2. As to what is necessary to constitute robbery, the trial judge, after stating to the jury the allegations of the indictment, instructed them as follows: “Robbery is defined by our penal statute as follows: Robbery is the wrongful, fraudulent, and violent taking of money, goods, or chattels from the person of another by force or intimidation, without the consent of the owner, or the sudden snatching, taking, or carrying away any money, goods, chattels, or anything from the owner or person in possession or control thereof without the consent of the owner or person in possession or control thereof.” In the motion for a new trial it is contended that the court erred “in failing to charge the jury, either specifically or generally, that intent to steal is a substantive and essential element of the crime of robbery by force or intimidation.”</p> <p>3. As to alibi the court charged the jury as follows: “The defendant . . pleads what is known in law as the plea of alibi,— that is to say that he was not at the place where the crime is alleged to have been committed and at the time it is alleged to have been committed. Alibi as a defense involves the impossibility of the prisoner’s presence at the scene of the offense at the time of its commission; and the range of the evidence in respect to time and place must be such as reasonably to exclude the possibility of presence. . . The evidence of alibi must satisfy your mind that the accused was at a place where it was impossible for him to have committed the alleged crime,” etc. In the motion for a new trial exception was taken to the concluding sentence of the instructions here quoted, and it was contended that a greater burden than the law imposes was thereby placed upon the accused, “the language of the statute being, ‘the range of the evidence in respect to time and place must be such as reasonably to exclude the possibility of presence/ ”</p> <p>4. In the motion for a new trial it was contended that in charging the jury that an impeached witness “may be sustained by proof of general good character,” the court erred because no evidence was offered for that purpose; that the court erred in charging that the date of the crime was immaterial if within tire statute of limitations, and in failing to tell the jury what the law was as to the statute of limitations in this case; that in the charge quoted above as to 'what constitutes robbery, the court erred in failing to limit the jury to the offense of robbery by force and intimidation; and that the court erred in failing to charge the jury that before they would be authorized to convict, they should be satisfied beyond a reasonable doubt as to the identity of the defendant.</p>

<p>Some of the grounds of the motion for a new trial are not in proper form for consideration. The evidence authorized the verdict.</p>

<p>Indictment for adultery and fornication; from city court of Polk county—Judge Tison. June 12, 1919.</p> <p>The motion that the court declare a mistrial was based on the statement of the solicitor-general, in his argument to the jury, that he would go to his grave “believing that this girl swore the truth” (referring to the principal witness for the prosecution). In overruling the motion the judge stated, in the presence of the jury, that he would instruct them to disregard any statement of counsel as to their personal opinionmr belief as to the evidence; and he so instructed them in his charge.</p>

<p>Conviction of manslaughter; from Morgan superior court—Judge Park. May 24, 1919.</p>

<p>Certiorari; from Fulton superior court—Judge Pendleton. May 29, 1919.</p>

<p>Indictment for car breaking; from Fulton superior court—Judge Humphries. June 24, 1919.</p>

<p>Indictment for burglary; from Bibb superior court—Judge Mathews. July 2, 1919.</p>

<p>Indictment for larceny; from Bibb superior court—Judge Mathews. June 25, 1919.</p>

<p>I-ndictment for murder—conviction of manslaughter; from Putnam superior court—Judge Park. June 7, 1919..</p>

<p>Conviction of manslaughter; from Jones superior court—Judge Park. June 7, 1919.</p>

<p>Indictment for manufacture of liquor; from Lee superior court— Judge Littlejohn. June 21, 1919.</p>

<p>Conviction of manslaughter; from Macon superior court—Judge Littlejohn. Juno 21, 1919.</p>

<p>Indictment for sale of intoxicating liquor; from Clarke superior court—Judge Cobb. June 20, 1919.</p>

<p>Indictment for possession of intoxicating liquor; from Lincoln superior court—Judge Walker. June 23, 1919.</p>

<p>Conviction of manslaughter; from Laurens superior court—• Judge Kent. June 14, 1919.</p>

<p>Indictment for uttering forged check—-Judge Terrell. June 38, 1919.</p>

<p>Indictment for manufacture of intoxicating liquor; from Pike superior court—Judge Searcy. July 5, 1919.</p>

<p>Indictment for car-breaking; from Richmond superior court— Judge II. C. Hammond. July 3, 1919.</p>

<p>Accusation of misdemeanor; from city court of Greenville— Judge Kevill. July 9, 1919.</p>

<p>Conviction of shooting at another; from Macon superior court— Judge Littlejohn. June 30, 1919.</p>

Indictment for assault with intent to rape; from Wilcox superior court—Judge Gower. July 8, 1919.

<p>Conviction of manslaughter; from Evans superior court—Judge Evans. June 7, 1919.</p>

<p>Accusation of iflisdemeanor; from city court of Macoa —Judge Guerry. July 1, 1919.</p>

<p>Conviction of stabbing; from city court of Macon—Judge Guerry. July 19, 1919.</p> <p>The instructions complained of were as follows: “Where several witnesses who are equally credible testify on the question as to whether an alleged thing happened at a certain time and place or not, and one of them testifies positively that such thing did happen, and the other witnesses had the same opportunity of observation and testify that they did not see or know that it happened, the testimony of the one positive witness should have greater weight than the testimony of such negative witnesses. If the one positive witness" had the better opportunity of knowing what tianspired than the negative witness had, then for a greater reason the testimony of such positive witness should have greater weight. In determining the probative value of the positive and negative testimony, the credibility of the witnesses should be considered. If the testimony of any one or more of the witnesses on either side of the question is corroborated by any fact or by the testimony of any other witnesses in the case, that corroboration should also be considered in determining the probative effect of positive and negative testimony. If Eaty Reed [the prosecutrix] was cut on her breast on the occasion testified about, and the defendant then and there, immediately after the cutting, stated that he cut her, you should consider this statement also in determining the probative effect of the positive and negative testimony along with the defendant’s statement on the stand. If the testimony of a witness otherwise appears to be negative, his statement that the thing could not have happened without his seeing it would not change his negative testimony to positive testimony.” It was contended that the court erred in so charging for the reason that the charge excluded from the consideration of the jury the evidence tending to show that the witness Eaty Reed was not cut by the defendant on the occasion as to which she testified; and that the court erred particularly in charging that “if the testimony of a witness otherwise-appears to be negative, his statement that the thing could not have happened without his seeing it would not change his negative testimony to positive testimony;” that this was not a correct statement of the law, without explanation or qualification. ^</p>

<p>Indictment for larceny of horse; from Bibb superior court— Judge Mathews. July 17, 1919.</p>

<p>Former jeopardy in a prosecution in a Federal court for violation of the internal revenue laws of the United States can not be pleaded in a State court to an indictment charging a violation of the State law prohibiting the making of alcoholic liquors.</p>

<p>Indictment for burglary; from Bibb superior court—Judge Mathews. July 12, 1919.</p>

<p>Indictment for possession of intoxicating liquor; from Bibb superior court—Judge Mathews. July 12, 1919.</p>

<p>, Indictment for manufacture of intoxicating liquor; from Dooly superior court—Judge Gower. July 19, 1919.</p>

<p>Indictment for bigamy; from DeKalb superior court—Judge Smith. July 26, 1919.</p>

<p>Where a motion for a new trial is based only on the usual general grounds, this court can not intei'fero with the judgment of the trial judge overruling the motion, if there is any evidence, however slight, to support the verdict.</p>

<p>Indictment for manufacture of intoxicating liquor; from Harris superior court—Judge Howard. July If, 1919.</p>

<p>Indictment for manufacture of intoxicating liquor; from Talbot superior court—Judge Howard. July 19, 1919.</p>

<p>Conviction of assault and battery; from Barrow superior court— Judge Cobb. July 24, 1919.</p>

<p>Indictment for larceny after trust; from Floyd superior court— Judge Wright. August 9, 1919.</p>

<p>Accusation of stabbing; from city court of Macon—Judge Guerry. August 12, 1919.</p> <p>Ophelia Miller was charged with having cut and stabbed Orena (or Irene) Webb, not in self-defense and not under other circumstances of justification. The defendant, in her statement at the trial, said: “The reason I cut her was on account of my husband.” She stated that she had seen him going with this woman, that the woman wrote to him that she was coming to meet him, and went to a house across the alley from the house in which the defendant and her husband, John Miller, lived, and called him and whistled for him, but he did not answer. The defendant added: “So I got mad and walked across the street, and I said, ‘John is my husband and I am his wife, and I know you are goings together all the time;’ and she jumped up and cursed me, and was trying to fight me, and I grabbed her and cut her. . . I tells her she had to leave him alone, and she jumped up and commenced cursing, and I cut her with a knife.” A witness for the State testified that Irene Webb said, “There is John Miller, where is his wife?” and the defendant walked up to her and said, “Who do you want to see, Johnnie Miller?” and began cutting her. Irene Webb, in her testimony, denied that she went to meet the defendant’s husband, or called to him, or cursed or said anything to the defendant. She testified that the defendant charged her with having come to the house to see John Miller, and then threw her across a bed and commenced cutting her. A love letter signed “Miss Irene Webb,” and addressed, “My dear John,” asking him to meet the writer at a certain time and place, and saying she did not “care a damn” about his wife and would “stand a shot” about him, was shown to the witness Irene Webb; she denied that she had written or signed it, or knew anything about it; and the court refused to admit it in evidence when the defendant sought to introduce it. In the 9th special ground of the motion for a new trial it is alleged that the court erred in excluding this letter. In a note to this ground the judge referred to the denial of Irene Webb that it was her letter. The court charged the jury: “If the defendant in this ease cut Orena Webb at the time and place stated in the accusation, on account of her husband, meaning thereby to prevent the girl having sexual intercourse with him, if the defendant’s husband was not there at the time, if no enterprise was going on at the time for such illicit purpose, or circumstances at the time that made it appear that such could have occurred, I charge you that the defendant is guilty.” The court further charged, “If you believe from her statement and the evidence in the case that she cut her under circumstances, as they appear in all the evidence in the case, to prevent illicit intercourse between the husband of the defendant and the girl, then I charge you that under the law she is guilty and it is your duty to so find.” The court charged also that profanity or insulting language would not justify the cutting. These and other instructions are complained of in the motion for a new trial.</p>

<p>Accusation of possessing intoxicating liquors, from city court of Dublin. August 18, 1919.</p> <p>From the evidence it appeared that seven quarts and a pint of whisky were found in the room of Cora Lee Harris, the defendant, by two officers who together were searching the house in her absence. The whisky was concealed in the wall, under a window sill, whore a piece had been sawed out of the ceiling and the window curtains dropped down over it. On taking out a piece of ceiling which had holes bored in it the officers found the whisky. The house was “a common negro house, with two rooms in front and two shed-rooms on the back, with a stack chimney in the middle, and Cora Leo’s apartment was in one end of the house. . . It seemed like somebody was living in the other end of the house.” A woman was in that end, and a curtain hung between the two parts of the house; one of the witnesses thought the partition had been taken out. The officers sent for the defendant, and a day or two later she came to one of them and said she wanted to “fix up the bond,” that she had found whose whisky was in her house; it belonged to “a fellow named Jonas Harris;” and on her statement he was arrested, and a pint of whisky was found on him. These officers were the only witnesses at the trial. In her statement at the trial the defendant said she was married and ivas living with her husband when the whisky was found; 'that another woman was living in the same house; that she did not see the whisky and knew nothing of it; that after one of the officers had asked her about it the man who brought it there came and called for his whisky, and she told the officer about it.</p>

<p>Indictment for manufacture of intoxicating liquor; from Pike superior court—Judge Searcy. August 2, 1919.</p>

<p>Indictment for possession of intoxicating liquors; from Harris superior court—Judge Howard. July 36, 1919.</p> <p>A policeman testified, that he searched the defendant’s house for whisky on June 10, 1918, and in a bedroom found on a bed two gallon jugs, each about half full of whisky; that there was nobody at the house, but the defendant soon came to the house and was placed under arrest and said that a negro named Will Maddox left the whisky there, that he came there with a package in a sack and asked her to let him leave it, and he carried it into the room, and she did not know what was in the sack “until after they were going to town, when Will told her it was whisky;” that she very promptly told whom it belonged to, and, from the’information she gave, the witness went to the house of Will Maddox and, on. search, found there whisky of the kind found in the defendant’s house. Another officer testified, that on or about November 1, 1917, on seeing a negro standing near the defendant’s house, with a bottle in his hand and two or three other negroes, he searched the bouse for whisky; that none was found in the house, but he found under a large box near the back steps a gallon jug of whisky, partly filled; that the defendant was in the house ironing, with her daughter, who was about grown; that she made no objection to the search, and told him to go ahead, that she had no whisky there. This witness further stated that he thought there were some negroes boarding at the defendant’s house; that she was an industrious negro woman, who washed ánd ironed and cultivated a little patch; and tbit'there was no fence around the house; “it was just an open space around there.” No additional witness testified. In her statement at the trial the defendant asserted her innocence and repeated in substance the statements which the officers testified she had made to them.</p>

<p>Indictment for manufacture of intoxicating liquor; from Harris superior court—Judge Howard. July 36, 1919.</p>

<p>Petition for certiorari; from Laurens superior court—Judge Kent. July 8, 1919.</p>

<p>Petition for certiorari; from Laurens superior court—Judge Kent. July 26, 1919.</p>

<p>Indictment for burglary; from Bartow superior court—Judge Tarver. August 2, 1919.</p>

<p>Indictment for misdemeanor; from Floyd superior court—Judge Wright. August 16, 1919.</p>

<p>Indictment for manufacture of intoxicating liquor; from Terrell superior court—Judge Worrill. August 18, 1919.</p> <p>The charge complained of was as follows: “Where an alibi is set up as a defense, which is not established, the jury have the right to take it into consideration in connection with the other evidence, and if they have a reasonable doubt about his guilt upon the whole of the evidence, including such attempted alibi, where not established, they ought to acquit.” It was contended that this “was contrary to law and not authorized by the evidence,” and that “it carried an expression of opinion by the court, or tended to give the jury the impression of a belief by the court, that the alibi set up had not in fact been established, or was merely an attempted alibi.”</p>

<p>Conviction of shooting at another; from Sumter superior court— Judge Littlejohn. August 5, 1919.</p>

<p>Conviction of assault with intent to rape; from Gwinnett superior court—Judge Cobb. September 5, 1919. .</p>

<p>Indictment for embezzlement; from Berrien superior court— Judge Thomas. March 28, 1919.</p> <p>Application for certiorari was denied by the Supreme Court.</p> <p>A. H. Weathers was president of the Weathers Banking Company, a corporation of this State, of which the Peoples Bank of Enigma, located in Berrien county, Georgia, and the Farmers & Merchants Bank of Ambrose, located in Coffee county, were branches.. The indictment was in two counts, one charging embezzlement of $1,987 in money, and the other charging embezzlement of a draft for that amount, in Berrien county, on December 12, 1916. There was a general verdict of guilty. From the evidence it appears that the draft referred to was drawn in the name of the Peoples Bank of Enigma, by its cashier, who sent it to the defendant at his request, and that the defendant collected the draft and used the proceeds for himself. In the motion for a new trial it was contended that the verdict was unauthorized, for the reason that the evidence showed that if the defendant embezzled the draft or money described, the offense was committed in Coffee county, and not in Berrien county; that there ivas no evidence that he formed an intent to commit the offense before the draft actually came into his possession in Coffee county; that the evidence showed that the draft was forwarded to him for the use of the Farmers & Merchants Bank of Ambrose, and that it immediately became the property of that bank, and if he committed the offense of embezzlement, he embezzled the property and funds of that bank, and not of the Peoples Bank. It was alleged that the court erred in charging the jury as follows: “If you believe from the evidence in this.case that the defendant, A. H. Weathers, was president of the bank as alleged in the indictment, and you further believe that as such president of such bank he was intrusted with the keeping, care, and safety of the money, property, and effects of such bank, and you further believe that while so entrusted (if you believe that he was thus entrusted) he did take, did unlawfully steal, secrete, or fraudulently take and carry away, by any means whatever, any of the funds of such bank, then it would be your duty to find him guilty as charged.” It was contended that this charge was error because: (a) It in effect authorized and instructed the jury to find the defendant guilty if they found that he took any of the funds of the bank, no matter how small the amount and no matter whether the funds taken were a part of the funds described in the indictment or not. (6) It authorized the jury to find the defendant guilty if he took and carried away any of the funds of the bank, regardless of whether the taking and carrying away were in Berrien county or not, or whether the offense was committed in Coffee county and not in Berrien. It was alleged also that the court erred in failing to give certain instructions as to venue. Another ground of the motion for a new trial was based on alleged newly discovered evidence.</p>

<p>Eviction; from city court of Blaeksliear—W. A. Milton, judge pro hac vice. March 30, 1919.</p>

<p>Indictment for murder; from Clay superior court—Judge Worrill. May 10, 1919.</p> <p>Charlie Eivers killed Isaac Timmons, and, under an indictment for murder, was convicted of voluntary manslaughter. The charge of the court as to manslaughter was complained of in the motion for a new trial, on the ground that it was not authorized by the evidence, and “was therefore prejudicial to the defendant, in that it afforded a means of compromise to the jury.” From the evidence 'it appears that the mother and two sisters of Isaac Timmons had been riding in the automobile of Eivers, -with Eivers and Tolbert, and on their return at night, and when near the Timmons residence, the automobile stopped, because of a flat tire, and Eivers was trying to fix the tire, and Maude Timmons was standing near with a lamp, when Isaac Timmons was seen in the road approaching them. Mrs. Timmons walked towards her son. She testified that he said, “Now you have played the devil,” and told her that she had gone off without cooking his dinner or supper.” When she replied he said she had told “a damned lie.” As to what then occurred she testified: “I called the girls. . . I told Maude and Annie Eee to go on home with me, and one of them said, ‘Let’s ride;” they had the car about fixed then. . . Isaac said, ‘I will see whether you ride or not,’ and so he walked back down the side of the road and broke a switch or stick like, and came back to where they were, and had the switch in his left hand pulling the limbs off of it with his right hand as he walked back up there; and as he walked up near them Charlie.Eivers said, ‘Don’t hit those girls,’ and Isaac Timmons said, ‘What in the devil’ he had to do with it; then Charlie Eivers shot him. When he was shot he turned and went on to Eay Wilkerson’s. I went with him. Isaac . . had his hands on his stomach and hollered that he was shot, . . to send for the doctor, that he was dying. . . When he got there he just lay over on the porch and reached back in his right-hand hip-pocket and got his pistol out and laid it on the floor. . . Mr. Garrison got there and said, ‘Why didn’t you shoot the damned rascal?’ ‘I couldn’t get it out.’ . . He said that Charlie Eivers shot him for nothing.” “He broke the stick to make the girls go home. . . Maude never run, the other one run. . . Maude jumped in front of Charlie Eivers and held her arms out this way, and said, ‘Don’t shoot buddy.’ When Isaac went round she run around Charlie Eivers.” The witness, when asked, “Did you hear Isaac Timmons say, ‘God damn you, I am going to kill you?’ answered, “He may have said that. I called him about the time and said, ‘Behave yourself and come on here, Isaac,’ and immediately the pistol fired. . . I did not see Isaac Timmons’s pistol until .he got to the house. . . He could have had a pistol in his hands; he was standing behind Maude. . . When I spoke to him he made a motion and I thought h&.was going to throw the stick and hit some of them, but he may have drawn his pistol.” Maude Timmons testified that Isaac ran around Charlie Eivers to where she was, “and Charlie Eivers said, ‘Don’t hit those girls,’ and Isaac said, ‘What have you got to do with it? God damn you, I will kill you.’ At that time I looked back at Charlie Eivers and he had his pistol, and I jumped in front of him; when the pistol fired I was standing in front of Charlie Eivers. . . My back was to my brother . . I said, ‘Don’t shoot buddy.’ I did not hear but one shot fired there.” Tolbert testified that when Charlie Eivers said to Isaac, “Don’t hit those girls, please don’t,” Isaac stopped and said, “What in the hell have you got to do with it?” and ran his hand in his bosom and pulled out his pistol, and said, “God damn you, I will kill you,” and Charlie Rivers pulled a pistol from his pocket and shot Isaac Timmons. Isaac did not shoot, and he did not snap his pistol at Rivers, so far as the witness knew. The defendant, in his statement at the trial, said: “Isaac said to me . . ‘God damn you, I am going to kill you/ and he throwed his pistol on me, and I pulled mine out of my side pocket, and Maude jumped between us, and I shot him.”</p>

<p>1. When, in answer to the question, “Are you conscientiously opposed to capital punishment?” a juror upon his voir dire, in a ease in which the offense charged may be punished with death, answers, “Not as a principle, but in a case of this character, where a woman is the defendant, I am opposed to capital punishment,” it is proper for the court to hold that he is incompetent.</p> <p>2. Under the evidence in this ease the court properly submitted to the jury the law of voluntary manslaughter.</p> <p>3. Where in a criminal dase a letter of such a character as to prejudice the minds of the jurors against the defendant has been excluded from the evidence, and by inadvertence is handed by the solicitor-general to the jury with the documentary evidence in the case, and remains with the jury until their verdict is returned, the presumption is that the jurors read it before arriving at their verdict, and that the defendant’s cause was prejudiced thereby. If all of the jurors testify that they did not read the letter before arriving at their verdict, the presumption is rebutted and a new trial is not required. Where, however, it is not so testified by all of the jurors, the presumption remains and a new trial becomes necessary. This is true even though all the members of the jury testify that the letter did not influence their verdict.</p>

<p>Indictment for murder—conviction of manslaughter; from Bleckley superior court—Judge Graham. June 21, 1919.</p>

<p>Indictment for manufacture of intoxicating liquor; from Harris superior court—Judge Howard. July 26, 1919.</p> <p>The instructions complained of in the motion for a new trial were as follows: “The burden is on the defendant to establish to the satisfaction of the jury that the alibi is true. If he does, he should be acquitted on this testimony alone. It is not necessary that he establish it beyond a reasonable doubt. If the jurors are not "atisfied that an alibi has been established, you should not disregard any testimony introduced to support it, but you should consider this testimony alohg with the other testimony in the ease and the defendant’s statement, in arriving at a verdict in the case, and determine whether the defendant is guilty of any charge beyond a reasonable doubt, or whether he is not guilty, as contended by him.” It was contended that “said charge is confusing and misleading,” and it “places a burden on the defendant that the law does not impose upon him,—that is of establishing his alibi beyond a reasonable doubt.”</p>

<p>Indictment for larceny from house; from Spalding superior court—Judge Searcy. August 4, 1919.</p>

<p>Appeal; from Wayne superior court—Judge Higbsmitb. December 23, 1918.</p>

<p>Petition to vacate judgment validating bonds; from Morgan superior court—Judge Park. June 26, 1919.</p>

<p>Complaint; from city court of Nashville—Judge Lovett. December 31, 1918.</p>

<p>Conviction of manslaughter; from McDuffie superior court— Judge Henry C. Hammond. April 1, 1919.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Indictment- for murder—conviction of manslaughter; from Madison superior court—Judge W. L. Hodges. March 8, 1919.</p>

<p>Indictment for burglary; from Bibb superior court—Judge Mathews. May 24, 1919.</p>

<p>Indictment for bigamy; from Heard superior court—Judge Terrell. May 31, 1919.</p> <p>The indictment charged that Goolsby unlawfully married Mrs. Dora Adams Creel when his lawful wife, Mattie Goolsby, was living. From the evidence it appears that in July, 1918, while living in the home of Mrs. Creel and her husband in Heard county, Georgia, and while his wife, Mattie Goolsby, was living in this State, the defendant filed in Bandolph county, Alabama, in the circuit court, a petition for divorce from Mattie Goolsby, alleging that he was a bona fide resident of that State and had been such “for a period of more than twelve years next before filing this petition,” and that Mattie Goolsby was a non-resident of the State. In his depositions in that case he stated that he was married to Mattie Goolsby in 1895, that they lived together as husband and wife until July, 1906, when she left him, that he did not know where she resided, but she lived somewhere in Georgia when he last heard from her, and that he was a resident of Bandolph county, Alabama, and had been “for the last five years and longer” a resident of Alabama. On August 23, 1918, he obtained from the ordinary of Heard county, Georgia, a license to marry Mrs. Creel, a divorce decree was granted to him by the Alabama court on October 2, 1918, and he was married to Mrs. Creel in Heard county later in the same month. On his trial it was testified that he and Mattie Goolsby were living together in Georgia as husband and wife in 1916, and in previous years, and that he was making crops in Heard county and living there in 1917 and 1918. His statement at the trial was aá follows: “I went over to Alabama and stayed about a year, and went to Col. Hooten and asked him about a divorce, and he said, ‘Yes, I can get you one/ and I gave him $31, and he got me this paper and gave it to me, and said, ‘This is all right, you can go and marry now/ I thought it was all right, [or ?] I would not have done it. I have clothes over there now in Alabama,—claim that as my home. I went over there in 1916, worked over there in the foundry, . . worked there in 1918 and up in the spring of 1917 before I left there, came back, and have been going backwards and forwards pretty often. I have got clothes over there now, and call it my home, in Anniston.” The record of the divorce proceeding was introduced in evidence by the State after the defendant made his statement.</p> <p>In the motion for a new trial it was contended that the court erred in charging the jury as follows: “If you find from the evidence, beyond a reasonable doubt, that such decree or judgment divorcing the defendant in this case from his wife, if the evidence shows that he had a wife,—that such judgment or decree was obtained by the defendant in this case in the circuit court of the fifth judicial circuit of the State of Alabama, in the county of Eandolph, through fraud and fraudulent misrepresentations, and that the defendant, at the‘time he secured such decree upon such fraud and fraudulent representations, if he did do it, and he knowing at the time that such was fraud and fraudulent misrepresentations, then I charge you that the judgment and decree rendered by the circuit court of the fifth judicial circuit of the State of Alabama would be void.” It was contended that this was error for the reason that the ¿[ecree could not be treated as void unless first set aside in a direct proceeding instituted for that purpose; that the State, having introduced the decree in evidence, was estopped from attacking its validity; and that there was no proof of fraud in procuring the decree. It was contended also that the court erred in refusing to charge the jury that the divorce decree “is presumed to be a valid, divorce until set aside; it can not be set aside in this trial; before such a judgment can be set aside a suit must be filed for the purpose of setting it aside,' and both the defendant and his first wife must have notice <}f such suit.”</p>

<p>Indictment for larceny from house; from Fulton superior court —Judge Humphries. July 11, 1919.</p>

<p>Accusation of misdemeanor; from city court of Carrollton—■ Judge Eevill presiding. July 7, 1919.</p>

<p>Certiorari; from Polk superior court—Judge Bartlett. December 20, 1918.</p>

<p>Trover; from city court of Thomasville—Judge W. H. Hammond. January 6, 1919.</p>

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

<p>Motion to set aside judgment; from city court of Thomasville—■ Judge W. H. Hammond. February 10, 1919.</p>

<p>Action for damages; from Muscogee superior court—Judge Howard. February 10, 1919.</p> <p>James G. Puckett sued the Postal Telegraph-Cable Company and the Columbus Power Company jointly for damages on account of personal injuries. Subsequently he amended his petition by ' striking from it the Postal Telegraph-Cable Company as a defendant. The allegations of the petition as amended are substantially as follows: On or about December 13, 1916, at about four o’clock in the afternoon, petitioner, while in the employ of the Postal Telegraph-Cable Company as a lineman and engaged about its business, was injured as hereinafter set forth. M. C. Welch was at that time employed by the telegraph company as district foreman of maintenance of lines for the States of Georgia and Florida, and had general supervision and direction of petitioner as well as of the other employees of the telegraph company while engaged in its work; and the petitioner, with Jonah Puckett, D. Harrison, and two negro laborers whose names the petitioner does not know, were working under the supervision and control of said district foreman, taking down certain wires of the telegraph company suspended on poles running along Front street near the Georgia end of the lower concrete bridge in the city of Columbus, which spans the Chattahoochee river. In obedience to, a command of the said Welch, the petitioner had climbed a pole of the telegraph company, about 50 feet high, at the intersection of Ninth and Front streets, and as he reached the cross-arms of the telegraph wires at the top of the pole he was seized by an electric current of approximately 11,000 volts, which- drew him across the double cross-arms at the top of the pole and along and over a span of Avires of the telegraph company, with his left foot and leg near or against a high-powered wire of the defendant, which was carrying 11,000 volts of electricity, and with his right arm, between the elboAv and the shoulder, resting on one wire and his left hand on another wire of the telegraph company; and in this position, lying on his back across the telegraph wires, with his left leg near or in actual contact with said high-powered wire and the bottom of his right foot against one of said wires, he lay for some fifteen minutes, with the current of 11,000 volts of electricity passing through his body and limbs; and he lay in this position until the arrival of an officer who had been telephoned that he was caught in said current, and until the officer could telephone to the power plant of the defendant to cut off the current. This required about fifteen minutes. In the meantime the petitioner, as he lay on said wires, was being burned with the high-voltage current passing through his body.</p> <p>It is further alleged: At the time the petitioner was injured the high-powered wire of the defendant crossed over and above the telegraph company’s wires, which the petitioner had gone up„ the pole to cut down, about three feet north of the telegraph pole. The high-powered wire which carried 11,000 volts of electricity was suspended only five and a quarter inches above the telegraph wires. Petitioner and the other employees mentioned above were engaged in cutting down the telegraph wires and removing a “lead” of telegraph wires and poles from the west side of Front street to near the curb on Front street, so as to comply with the requirements of a city ordinance. The number of volts carried by said high-powered wire was not "known to him. The telegraph wires were ordinarily charged with only a light current of electricity and were harmless. Several weeks before the injury the telegraph company was notified that this high-powered wire was so close to its wires as to render their position unsafe and make dangerous the place at the top of the telegraph pole for the'telegraph company’s employees. During the morning of the day on which petitioner was injured, until about ten o’clock, employees of the defendant were at work on the high-powered line and poles bearing said line. The telegraph company’s wires “were fastened to double-arms at the top of the telegraph pole, to arms on either side of the . . pole, with the . . telegraph wires fastened to insulators on both arms.” The telegraph wires and line had been standing at this point for about ten years, and the high-powered wires of the defendant had been suspended by it over the telegraph wires for about three years. The high-powered wire had been placed by the defendant dangerously near (that is to say five and a quarter inches above) the telegraph wires, and had remained in this condition for about three years. Petitioner was a stranger in the city of Columbus, and had been at work in Columbus not quite two days when he was injured.</p> <p>It is further alleged, that the petitioner before climbing the pole made the usual examination of the pole and the wires, that is to say he examined visually from the ground the pole, cross-arms thereon, and wires at and near its top, and the relative height of the poles on either side of the telegraph pole on which the high-powered wires were strung; and from its foot the pole and cross-arms appeared to be safe, and the wires of both the telegraph company and the defendant appeared to be properly spaced, and, having no reason to apprehend that the high-powered wire was improperly spaced from the telegraph wires, he proceeded to climb the pole for the purpose of cutting down the wires. After he had ascended the pole some seven or eight feet he called out to a negro helper (whose name he does not know) to throw a rope to him, and as the negro threw the rope the petitioner reached out with both hands and caught it. He can not remember drawing his body back to the pole or placing his hands on the pole again, and from that moment until he regained consciousness in the hospital many days thereafter he suffered (on account of the injury) a complete lapse of memory, D and his mind is still blank as to everything that occurred from the moment he caught the rope until’he regained consciousness in the hospital. After he caught the rope he proceeded to climb on up towards the top of the pole in the performance of his duties, and when he came in contact with the telegraph wires at the top of the pole, which were ordinarily charged with a light current of electricity and harmless, he was seized by a current of 11,000 volts of electricity which was being transmitted from the high-powered wire to the telegraph wires.</p> <p>It is further alleged: Where said wires crossed there were some twenty-odd wires, some of which were on the telegraph pole and the remainder of which were resting on the high-powered poles standing on either side of and adjacent to the high telegraph pole. The wires attached to the high-powered pole crossed the telegraph wires about at right angles, and the crossing of the wires was about midway between the two poles of the high-powered line. Several weeks before petitioner was injured the defendant was notified that its high-powered wire was so close to the telegraph wires as to render their position unsafe and make dangerous the place at the top of the telegraph pole for the telegraph company’s employees to work. Unknown to petitioner at the time he climbed the pole, the high-powered wire was so near the telegraph wires that, in swinging, a current of electricity intermittently flowed from it to the telegraph wires at the top of the pole. On that occasion the telegraph company ordered him to go to the top of said telegraph pole to cut down its telegraph wires; and the defendant had actual knowledge of the dangerous condition of said wires and their proximity each to the other, and of said wires to the top of the pole, several weeks before he was assigned to the work of cutting down the telegraph wires. As he climbed up said pole to and against the telegraph wires his back was to the high-powered wire, and for this reason he could not and did not see that wire, and did not and could not know of its close proximity to the telegraph wires and their dangerous position. In order for him to climb said pole it was necessary to use spurs, fastened to his feet and lower legs, and to stick the spurs into the pole by jabbing or kicking them, thereby supporting the weight of his body. As he climbed it was necessary to pull the spurs out of the pole and jab them higher, and thus, with his hands around the pole and his eyes on his feet and on the pole, to select suitable and safe places to stick his spurs, as his duties required him to do, he performed the difficult task of climbing to the top of the pole, up to and against the telegraph wires, with his back to the high-powered wire, not knowing or having any opportunity to know of the proximity of said telegraph wires to the high-powered wires, or their unsafe position and condition. The telegraph pole was crooked and twisted, and had what is commonly known among linemen as a belly and a back. Petitioner climbed its back, which was the usual, ordinary, and safe way of climbing the pole, it being unsafe and insecure to climb the belly of the pole, for, among other reasons, the spurs worn on the linemen’s feet were liable to slip out of the belly of the pole and precipitate the lineman to the ground. Petitioner, while climbing the back of the pole, climbed between the telegraph wires on the north side of the pole. It was the duty of the defendant to warn him that the high-powered wire was dangerouPy near to the telegraph wires which he was ordered and required to cut down. The rules of the telegraph company, which were known to the defendant, required that no high-powered wire should be strung and maintained at a distance of less than 42 inches above its telegraph wires, and the defendant, through its agents and employees, knew that said wires were approximately only five and a quarter inches apart, and had been in that close proximity for several weeks or months before the petitioner was injured.</p> <p>It is alleged in paragraphs 36 to 38, that the petitioner did not know and had no opportunity of knowing that he was encountering any danger in going to the top of the telegraph pole to cut down the wires; that he did not know and had no opportunity of knowing that his master, the telegraph company, had furnished to him an unsafe place to work, and he did not have equal means with his master of knowing or discovering that the place was dangerous, or of knowing or discovering that it had been rendered dangerous as a place in which to work. It is alleged that he did not know and had no means or opportunity of knowing of the unsafe proximity of said high-powered wire to the telegraph Avires, and at the time aforesaid his attention Avas directed to the difficult work of climbing the pole; that he did not see and had no opportunity of seeing or discovering the unsafe proximity of the high-powered Avire to the telegraph Avires, and it was not discoverable by him while he was engaged about his duties as aforesaid; that he climbed the pole in the line of his duties, he being then in the exercise of all reasonable and ordinary care and diligence, to discharge the labors he had been ordered to do, apprehending no danger Avhatevcr.</p> <p>It is further alleged: The defendant Avas negligent in that when said high-powered line was originally constructed the high-powered wires were placed within a closer distance to the telegraph Avires than 42 inches, and it alloAved its high-poAvered Avire gradually, during the three years, to sag until it had come within five and a quarter inches of said telegraph wires. The defendant knew or in the exercise of ordinary care and diligence should have known that its high-powered wire, being suspended within five and a quarter inches above the telegraph Avires, rendered the telegraph wires dangerous, and also made dangerous the Avires attached to the telegraph pole, and made them dangerous to the telegraph company’s men who chanced to work on said wires. He did not see the high-powered Avire sagging doAvn, for the reason that his attention was directed to the work of climbing the pole, and it Avas not discoverable by him while he Avas engaged about his duties. It was no part of his duty to inspect said wires to ascertain their relation to each other. He climbed to the top of said pole as he had been ordered to do, assuming, as he had a right to do, that it and its wires Avere in a safe condition; and he had never climbed or been on said telegraph pole before. It was the duty of the defendant from time to time to inspect said wires, which it negligently failed to do, and to see to it that said wires were not placed or allowed to sag dangerously near the telegraph wires, so as to protect the employees of the telegraph company from harm while they were engaged about their duties of working on the telegraph pole and wires. The defendant knew at the time it strung its wire only ñve and a quarter inches from the telegraph wires that it would be necessary for the employees of the telegraph company to ascend said pole to keep its wires, cross-arms, and insulators in repair, as well as to string new wires and take down old wires. The defendant knew that the employees of the telegraph company were engaged in taking down the telegraph wires on the day on which the petitioner was injured, and that while so engaged they would be exposed to the danger of the said current of 11,000 volts being transmitted from the high-powered wire to the tele<graph wires and from the telegraph wires to the bodies of the telegraph company’s employees. The defendant was further negligent in that it failed to warn petitioner of the unsafe condition of said wires, and permitted him, although the employees of the -defendant knew that the wire had sagged down and thereby made it extremely dangerous, to go to the top of the pole for the purpose of cutting down the wires, without warning him of their dangerous condition.</p> <p>It is further alleged: The double cross-arms on the telegraph pole were fastened to it about seven or eight inches from its top, and were about eight feet long, and supported three wires on either side of the pole, and each of these wires was fastened to a pair of insulators on the double cross-arms. In order to get in a position to cut down the telegraph wires it was necessary for petitioner to climb up between the wires next to the pole, and while he was climbing between them, with his back to the high-powered wire, he received the electric shock and was injured. The defendant owed to the employees of the telegraph company the duty to have its high-powered wire properly and efficiently insulated, and, failing in this, to place that wire, a sufficient distance—not less than 42 inches—away from and above the telegraph wires, so as to prevent the telegraph wires from coming in contact with the high-powered wire, as well as protect the telegraph company’s employees against danger from its high-powered current while they were in the performance of their duties at or near the top of the tele-' graph pole. The high-powered wire was an insulated wire, and the defendant was negligent in that at the point where the current was transmitted from its high-powered line to the telegraph wires the insulation on the high-powered line was defective “and in two places was blistered or swollen so as to permit and did permit^ while petitioner was climbing up between said telegraph wires at or near the top of said pole with his back toward the high-powered wire, as a result of the telegraph wires shaking and swinging or being caught on the clothes or tools of petitioner and raised so that they, the telegraph wires came close enough to the said high-powered wire for the current to arc from the said high-powered wire at the point of the defective insulation thereon .to the telegraph wires and thence into petitioner’s body, injuring him as stated;” which defects in the insulation were unknown to petitioner and not discoverable or discernable by him from the ground . or from the telegraph pole upon which he was at work. The defects in the insulation were latent and were not discoverable by petitioner while he was engaged in the performance of his work. The defendant was negligent in that it allowed the insulation on its high-powered wire to become defective as aforesaid. It is alleged that the petitioner was in the exercise of all ordinary care and diligence at the time of the injury. Allegations are made as to the nature and extent of the damage to the plaintiff.</p> <p>The defendant demurred, on the grounds that no cause of action was set out; that the facts alleged show that the petitioner, by the exercise of ordinary care, could have avoided the alleged injuries; that if the high-powered wire was in unsafe proximity to the wires of the telegraph company, the petitioner, by the exercise of ordinary care, could have known of the danger before he was injured; that it does not appear from the facts alleged that the negligence of the defendant was the proximate cause of the injuries, and that it appears that they were caused by his own negligence. Other grounds of demurrer were: that it is not alleged that the high-powered wire ever came in contact with the wires of the telegraph company, as a result of the negligence of the defendant; that it is not alleged that the petitioner made any effort to discover the distance the high-powered wire was from the wires of the telegraph company after he had started to ascend the pole, and no fact is alleged to show that he could not see the alleged unsafe proximity of the wires to each other hy the exercise of ordinary care; that the allegations that he exercised ordinary care in performing his duties, or in ascending the pole which he did ascend, are merely conclusions of the pleader, and no facts are alleged to show that he exercised such care; that it does not appear, from the facts alleged, that any act of negligence on the part of defendant was the proximate cause of the injury to the plaintiff; that no facts are alleged to show how he “was seized” by a current of electricity, and the allegations that he was so “seized” are too indefinite to enable the defendant to make its defense. The part of the petition in which it is alleged, that the high-powered wire was so near the wires of the telegraph company as that, in swinging, a current of electricity intermittently flowed from that wire to the telegraph wires was demurred to, upon the grounds: (a) It is not alleged how near the high-powered wire was to the telegraph wire. (&) The said allegation is too indefinite, (e) The said allegation is a mere conclusion of the pleader and does not sufficiently set forth facts as to the distance apart of the wires of the two companies. The allegations that the plaintiff could not see the high-powered wire, and could not know of its close proximity to the telegraph wires and their dangerous position, were demurred to, upon the grounds: . (a) No facts are alleged to show why petitioner could not see the high-powered wire and why he could not know' of its close proximity to the telegraph wires and their dangerous position. (&) The said allegations are mere conclusions of the pleader. Paragraph 31 of the amendment to the petition, which alleged that “petitioner climbed said pole in the usual and ordinary and safe way,” was demurred to, upon the grounds: (a) It is not alleged what was the usual, ordinary, and safe way of climbing the telegraph pole. (&) The said allegations are mere conclusions of the pleader and do not set forth facts specifically enough to enable the defendant to make its defense. (In paragraphs 46 and 47 it is alleged: “The telegraph pole was crooked and twisted and had what is commonly known among linemen as a belly and a back. Petitioner climbed the back of the pole, which was the usual, ordinary and safe way of climbing the pole, it being unsafe and insecure to climb the belly of the pole.”) That part of paragraph 34 of the amendment to the petition wherein it is alleged that “petitioner did not know and liad no opportunity of knowing that he was encountering any danger in going to the top of said telegraph pole to cut down said wires” was demurred to upon the grounds: (a) No facts are alleged to show why he had no such opportunity, (b) The said allegation is a mere conclusion of the pleader. Paragraphs 35, 36, 37, and 38 of the amendment to the petition, which alleged that the plaintiff did not know and had no opportunity of knowing that his master had furnished to him an unsafe place to work, that he did not'have equal means with his master of knowing or discovering that the place was dangerous, or of knowing or discovering that the place had been rendered dangerous as a place of work, were demurred to upon the ground that the said paragraphs are immaterial, irrelevant, and surplusage. The defendant demurred further upon the grounds, that no facts are alleged to show why the plaintiff did not or could not discover the defective insulation; that it does not, from any facts alleged, appear why the defects were latent, and it does appear that the defects were not latent; that it appeared that the plaintiff had the choice of two ways of doing the work which he was endeavoring to do when injured, the one safe and the other dangerous, and that instead of doing it in the safe way he voluntarily selected the unsafe way, when he knew or ought to have known of the danger.</p> <p>The court overruled the demurrers, and the defendant excepted.</p>

<p>Complaint; from city court of Savannah—Judge Freeman, October 3, 1918.</p>

Trover; from Taylor superior court—Judge Howard. February 10, 1919. Armour Fertilizer Works instituted a bail-trover proceeding against Marshall to recover certain mules. The defendant answered that he bought the mules at a sheriffs sale made by virtue of a previous bail-trover proceeding instituted by the same plaintiff against D. A. Youngblood.

<p>Levy and claim; from Montgomery superior court—Judge Graham.' February 6, 1919.</p>

<p>Motion to set aside judgment; from city court of Nashville— Judge Lovett. March 10,1919.</p>

<p>Complaint; from city court of Eastman—Judge Griffin. March 8, 1919.</p>

<p>Certiorari; from Tattnall superior court—Judge Sheppard. April 9, 1919.</p>

<p>1. The petition set out a cause of action against the city, and there was no error in overruling the demurrer.</p> <p>2 A child only two and a half years old is incapable of contributory negligence. Orawford v. Southern By. Go., 106 Ga. 870 (2), 877 (33 S. E. 826).</p> <p>3. The following charge is complained of: “If it [the defendant] failed to exercise ordinary care in the matter of keeping its streets in a reasonably safe condition, in one or more of the particulars charged in the plaintiff’s petition and amendment, that would constitute negligence.” Although this excerpt from the charge of the court standing alone is subject to the criticism made, when considered in connection with the language immediately preceding it and that immediately following it no such error was committed as to require a reversal. The language immediately preceding the excerpt is as follows: “Ordinary care means just that care that every prudent man would exercise under the same or similar circumstances. That is the measure of its duty, and with this definition it becomes a question of fact for the jury to say whether, in so far as the particulars charged by the plaintiff in her petition and amendment are concerned, the city exercised through its agents and employees ordinary care or failed to do so. If it exercised ordinary care in keeping its streets reasonably safe, that would be the measure of its duty and there would be no liability.” The language immediately following the excerpt is as follows: “Then, with this definition, you would for yourselves decide whether it was or was not negligent.”</p> <p>4. Exception is taken to the following charge: “Damages are given as compensation for the injury done, and generally this is the measure when the injury is of a character of being estimated in money, that is, gentlemen, when the law permits damages to be recovered at all in. a case like this, it seeks to give fair compensation, fair pay, for the injury done, and you will keep this rule in mind in passing on the classification of damages involved in this case.” This excerpt from the charge of the court is substantially a statement of the law as .contained in the Civil Code (1910), § 4502, and when considered in connection with the entire charge contains no reversible error.</p> <p>5. A recovery being sought for pain and suffering on account of injury to the knee of a female child, evidence that scars caused by the injury remained a considerable length of time after two operations had been performed upon the knee, which caused it to be one fourth of an inch larger in circumference than her other knee and that as a result of the injury her leg was “crooked,” and in walking she would never have “true use” of her foot, was sufficient proof to authorize a charge on the subject of deformity. There is no merit in the exception to the charge of the court on that subject.</p> <p>6. Upon a consideration of the whole record, it does not appear that a verdict for $940 was so excessive as to authorize the inference of gross mistake or undue bias on the part of the jury.</p> <p>7 While the testimony is conflicting, there is ample evidence to sustain the allegations of the petition, and the court did not err in overruling the motion for a new trial.</p>

<p>Certiorari; from Grady superior court—Judge Harrell. March 27, 1919.</p>

Indictment lor assault with intent to murder; from Forsyth superior court—Judge Morris. February 14, 1919. The verdict was, “We, the jury, find the defendant guilty of shooting a man, and recommend that he be punished as for a misdemeanor.”

<p>Action for damages; from city court of Hinesville'—Judge W. C. Hodges. June 5, 1919.</p>

<p>Trover; from Barrow superior court—Judge Cobb. February 28, 1919.</p> <p>Eosa L. Booth, as executrix of John N. Booth, brought trover against Gt. N. Arnold for property described in her petition as “a certain dark iron-gray horse mule, about 5 years old, weighing about 900 pounds, of the value of $250,” and “one bay horse about 10 years old, weighing about 1000 pounds, named ‘Tom Bell,’ of the value of $150.” On the trial the plaintiff elected to take a money verdict, and such a verdict was rendered. The defendant made a motion for a new trial, which was overruled, and he excepted.</p> <p>On the trial it appeared that John N. Booth sold to the defendant two mules, and that the defendant executed at the time of the sale an instrument in the form of a purchase-money note to the vendor, with a recital as follows: “This note being to said John N. Booth as contract for one gray mare mule about 11 years old, weight 1000 pounds, one dark iron-gray mare mule 4 years old, weight about 900 pounds.” This recital was followed by these words: “It is hereby agreed that the title to said mules shall remain in said John N. Booth until this note is fully paid. . . To better secure the payment of this debt I sell to said John N. Booth one bay horse 9 years old, weighing about 1000 pounds, name Tom Bell, and upon failure to pay this debt when due, said John N. Booth is hereby authorized to take possession of said property and sell same.” The instrument was duly attested and recorded. One of the grounds of the motion for a new trial ‘was that the court erred in charging the jury as follows: “The legal effect of this paper, so far as the two mules are concerned, was to retain the title to the mules in John N. Booth until the debt was paid. . . The legal effect of that portion of the paper which refers to the horse called ‘Tom Bell’ was to vest the title in John N. Booth to secure the payment of the debt. Therefore I charge you as a matter of law that the plaintiff has the right to pursue the remedy which she is pursuing in bringing this action to recover the value of these pieces of property.” It was contended that this was error because of variance between the description of the mule in the plaintiff’s petition and the description in the instrument referred to, and because as to the horse ‘Tom Bell’ the effect of the paper was to create a mortgage and not to convey title.</p> <p>Another ground of the motion for a new trial was that John L. Booth was allowed to testify as follows“This paper you hand me is a retainer-title note given by Mr. Arnold to my father for one gray mare mule about 11 years old, and one dark iron-gray horse mule 4 years old, given for one dark iron-gray mare mule in the note. The mule was described in the note as one dark iron-gray mare mule, but it was a horse mule. The horse mule sued for is the mule mentioned there (in the note) as a mare mule, and that is the mule upon which I gave the value just now.” This testimony was admitted over the objection that it contradicted the description in the note.</p> <p>Error was assigned on the exclusion of the following testimony of the defendant: “I got the dark iron-gray horse mule sued for from J. N. Booth just before Christmas, 1915, by a swap. I did not give any note for that mule.” This was excluded as relating to “a transaction with a deceased person.”</p> <p>The court charged the jury as follows: “As this is a case between the original parties to the contract,—that is, between the executrix of one party and the living party,—a misdescription in the paper, as to the identification of the property in question, would not defeat the right of the plaintiff to recover as to that animal. That is to say, if you are satisfied, from an examination of the paper, that the paper describes an animal but there is a misdescription as to the sex of the animal, and you are further satisfied that it was the intention of the parties to give a retainer of title to an animal of which the defendant was in possession, and that that is the animal which is described in the petition, then the plaintiff would be entitled to rely upon the retainer of title, although it might appear to you that the sex of the animal was wrongly described in the note.” Error was assigned on this extract from the charge, on the ground that it allowed a variance of the written contract by parol testimony.</p>

Complaint; from city court of Americus—Judge Harper. April 30, 1919. On May 4, 1918, E. B. Coker brought an action in the city court of Americus against Mrs. Docia Fuller on an account for $137, money loaned, and interest thereon.

<p>Kccusation of misdemeanor; from city court of Cairo—Judge Rigsby. February 26, 1919.</p>

<p>Indictment for robbery; from Chatham superior court—Judge Meldrim. June 9,1919.</p>

<p>Indictment for murder; from Charlton superior court—Judge Summerall. June 21, 1919.</p>

<p>Accusation of possession of intoxicating liquor; from city court of Valdosta—Judge Cranford. August 8. 1919.</p> <p>The only testimony at the trial was that of the sheriff, H. M. Passmore. He testified that he searched the house of Chicken Muse, the defendant, and found there a locked trunk, which he asked the defendant to open; that the defendant “took his keys out” and unlocked the trunk, and nearly six pints of whisky and about two thirds of a bottle of “shine” were found in it; that the only statement that the defendant made about the liquor 'was that “a fellow left it there;” he was asked but did not tell who left it there. The only ground of the motion for a new trial other than the general grounds was that the court illegally admitted, over objection of counsel for the defendant, “the following material evidence, to wit:” setting out the testimony that the whisky was found in the trunk; to which testimony the defendant objected on the ground that he was ordered by the sheriff to open the trunk, and was thereby compelled to give evidence tending to criminate himself.</p> <p>In the motion for a rehearing it was contended that the ruling quoted in the decision should'not be applied where the only evidence in the brief of the evidence is the testimony of one witness and it is very brief.</p>

<p>The offense charged in the indictment being simple larceny, and the guilt of the accused being wholly dependent upon inference arising from possession of the article alleged to have been stolen, and this possession being shown by uncontradicted and unimpeached testimony to be consistent with his innocence of the offense charged, though he may have been guilty of the offense of receiving stolen goods, the conviction of the accused was unauthorized.</p>

<p>(Certiorari granted by tbe Supreme Court.)</p> <p>Petition for removal of cause; from city of Atlanta—Judge Eeid. January 21, 1919.</p>

<p>Condemnation; from city court of Madison—Judge Anderson. January 22, 1919.</p>

<p>1. Where a verdict is directed for the defendant and exception thereto is brought to this court by the plaintiff, the direction of the verdict will be affirmed where it appears from all the evidence, both for the plaintiff and the defendant, with all reasonable deductions therefrom, that the verdict was demanded. The fact that the trial judge, at the conclusion of plaintiff’s evidence, -refused to award a nonsuit will not be considered as adjudicating that there was an issue of fact for the jury.</p> <p>2. The plaintiff offered in evidence the following question and answer of the witness Mrs. Bogart: “Q. Is it your opinion, Mrs. Bogart, that this thing you saw on the back of his [insured’s] neck was. the thing that caused his death? A. I do. Yes, sir. I think so.” The evidence of this witness was taken by deposition, the question being one propounded by the defendant’s counsel on cross-examination, and the answer was in response to that question. The defendant objected to the introduction of this question and answer, and by permission of the court withdrew the question, and the court ruled the evidence out. The judge did not abuse his discretion in so holding, as the answer o.r evidence of the witness was not competent. Moreover, had this evidence been admissible, its rejection by the court would not have been reversible error, since with the testimony in, the evidence would nevertheless have demanded a verdict in favor of the defendant.</p> <p>3. Where an accident policy insured against loss “from bodily injuries effected solely through external, violent and accidental means,” it is incumbent upon a plaintiff in an action thereon to show that in the act which preceded the injury alleged to have caused his death something “unforeseen, unxpected, or unusual occurred.”</p> <p>4. While, in such case, the allegation, that the insured met his death “as the result directly and independently of all other causes, of bodily injuries effected solely through external, violent and accidental means,” may be sustained by proof of circumstances, as -well as by direct evidence, the proved facts in this case, considered in connection with the defensive facts developed upon cross-examination, were not sufficient to make a jury question. Accordingly the court did not err in directing a verdict for the defendant.</p>

<p>1. The owner and holder of a certificate of bank stock has the right to have the' stock transferred into his name on the books of the corporation, and the illegal refusal so to transfer (the refusal being treated as a conversion of the stock) makes the corporation liable for resulting damages.</p> <p>2. Where a certificate makes no reference to the existence of a lien, a transferee of corporate stock is not affected by the terms of a by-law lien of which he has no notice.</p> <p>3. The statement appearing on the face of a stock-certificate, “transferable only on the books of the corporation in person or by attorney on surrender of this certificate. In accordance with the by-laws of this bank,” is insufficient to charge a transferee with notice of what is on the books of the company, or of the existence of a by-law lien, or of the fact of the stockholder’s indebtedness.</p> <p>(a) Neither would notice given at a pledgee’s sale cure this want of notice.</p>

<p>Attachment; from Tattnall superior court—Judge Sheppard.</p>

<p>1. An order sustaining a demurrer to a petition upon the ground of misjoinder of parties or of actions is a final judgment, unless the defect be cured by amendment prior to exceptions being taken to the order, and the effect of such order is to dismiss the petition as against the demurrant.</p> <p>2. It is not necessary that such order contain a provision therein, or that there be an additional order, expressly dismissing the petition.</p> <p>3. Thus, where an order sustaining a demurrer which operates to dismiss a petition allows a specified time in which to amend, such a provision will not necessarily operate to change the character of the order as respects its being a final judgment. The order, as it stands, still operates to sustain the demurrer and may become final. While such order will operate as a final judgment after the time allowed for amendment has expired, in the event no amendment is fined, it may nevertheless beforehand become final upon a refusal to accept the privilege of amendment. In the latter event it will not be necessary to wait until after the expiration of the time allowed for amendment, before excepting to fhe order as a final judgment. Where the plaintiff, before the expiration of the time for amendment, and without filing any amendment to the petition, presents and has certified a bill of exceptions excepting to such order and files it with the clerk of the tidal court, the plaintiff will be considered as having waived any right which he may have had to amend the petition, and such bill of exceptions will be construed as excepting to a judgment thus made final, and will not be dismissed upon motion of defendant in error upon the ground that such judgment was not final and that the bill of exceptions was prematurely brought.</p> <p>4. Where the plaintiff charged that she was damaged by two defendants, and alleged that such damage was occasioned by a collision between a street-car belonging to one of the defendants, upon which she was a passenger, and an automobile truck belonging to the other defendant, but separately charged acts of negligence against each defendant as Causing the collision, and it appeared from the petition that such acts of negligence jointly and concurrently caused the collision and thereby produced the damage complained of, the plaintiff sufficiently charged the defendants as being joint tort-feasors.</p> <p>5. The paragraph of the plaintiff’s petition alleging drug and doctor’s bills incurred was sufficient specific, and the special demurrer thereto was improperly sustained.</p>

Action for damages; from city court of Americus—Judge Harper. February 3, 1919. J. F. Súber brought suit against the International Agriculture Corporation for injuries to his minor son. From the petition it appeared that the defendant corporation owned and operated a fertilizer plant near Americus, Georgia, and that it entered into a contract with Gammage, as an independent contractor.

<p>1. “Considerations are distinguished into good and valuable. A good consideration is such as is founded on natural duty and affection, or on a strong moral obligation. A valuable consideration is founded on money, or something convertible to money, or having a value in money, except marriage, which is a valuable consideration.” Civil Code, § 4243.</p> <p>(a) Thus, a note given for professional services is not nudum pactum merely because the payees named therein, who were attorneys at law, were bound (having been appointed by the court) to defend without compensation the makers’ brother in a criminal prosecution for murder; and this is true notwithstanding such appointment was unknown to the makers at the time they executed the note. The trial judge therefore did not err in striking the plea by which it was sought to set up this defense.</p> <p>2. Where one signs the name of another on the back of a promissory note which as to the principal debtors is a sealed instrument, but which is not such an instrument as to the surety whose name is signed thereon, because his signature is not under seal, it is' not necessary that the authority to sign the note be under seal. Neither is it necessary that the Authority to sign the note be in writing; and a subsequent ratification of the same, such as is testified to by one of the plaintiffs in this case, is sufficient to bind the surety.</p> <p>3. There was evidence to authorize the judgment of the trial judge (who tried the case without a jury), finding in favor of the plaintiffs and against all three defendants.</p>

Action for damages; from city court of Carrollton—Judge Beall. March 14, 1919.

<p>Petition for removal of cause; from Muscogee superior court— Judge Howard. February 24, 1919.</p> <p>Application for certiorari was denied by the Supreme Court. This suit was filed in'the superior court of Muscogee county against the Postal Telegraph-Cable Company and M. C. Welch as joint tort-feasors. The Telegraph Company, being a non-resident corporation, sought to remove the cause to the Federal court, its petition for removal being based on two grounds: (1) that a separable controversy, was stated in the plaintiff’s declaration; and (2) that there was a fraudulent joinder of the defendant Welch. The trial judge, to whom the petition for removal was addressed, passed an order disallowing the removal, and the defendant corporation excepted.</p> <p>Substantially, but somewhat abbreviated, the plaintiff’s declaration alleged the following facts: that at the time he was injured he was in the employ of the defendant corporation at Columbus, Georgia, living gone there from Atlanta, Georgia, the day before he wgg hprj;', jfi&t he, together with other employees of the defendant corporation, was changing certain wires from one side of the street to the other, to comply with the requirements of an ordinance of the city of Columbus, when he received his injuries, and that in order so to change the wires he was ordered and directed to climb a telegraph pole of the defendant; that it was approximately 50 feet high, and had telegraph wires strung only a few inches from the top; that the Columbus Power Company built a line of poles to which was strung a high-powered wire carrying eleven thousand volts of electricity; that the poles of the Columbus Power Company bearing this high-powered wire were about equidistant from the defendant’s telegraph pole, and that the high-powered wire was strung only five and a quarter inches above the telegraph wires, crossing them at right angles and only about three feet from the telegraph pole upon which the plaintiff was working when injured. It is further alleged that the rules of the defendant corporation required that no high-powered wire or wires should be strung at a nearer distance above any of its telegraph wires than forty-two inches. The declaration alleged also that the defendant Welch ordered the plaintiff to climb the pole in question for the purpose of cutting down certain wires on the cross-arm at the top of the pole, without notifying him that the high-powered wire was in dangerous proximity to the telegraph wires which he was directed to cut. The declaration also sets out that the negligent acts of the defendant corporation were committed through the defendant Welch, its district foreman for the State of Georgia, who it is alleged was the alter ego of the defendant corporation, having then and there general supervision and direction of the petitioner as well as of' the other employees of the defendant.</p>

<p>Complaint; from city court of Eastman—Judge Griffin. March 8, 1919.</p>

<p>.Appeal; from Elbert superior court—Judge Hodges. March 11, 1919.</p>

<p>Money rule; from city court of Floyd county—Judge Nunnally. February 24, 1919.</p>

<p>Complaint; from city court of Wayeross—Judge Summeral! presiding. March 18, 1919.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Action on contract; from city court of Tifton—Judge Price. April 16, 1919.</p>

<p>1. There being evidence to sustain the verdict, the general grounds of the motion for a new trial are without merit.</p> <p>2. It is contended that the verdict against the defendant is unauthorized for the reason that at the time of the levy of the attachment and at the time of the trial and judgment the legal title to the automobile in question was vested in the plaintiff in attachment and not in the defendant. There is no merit in this ground of the motion. See ■Johnson v. Walter J. Wood Stove Oo., 6 Oa. App. 65 (64 S. E. 287), where it is held: “Where an attachment for purchase-money of personal property to which the plaintiff 'in attachment has reserved title is served by seizure of the property, before the property can be levied upon and sold under final judgment and execution the plaintiff must convey it by quitclaim to the defendant. But this conveyance is not necessary before the issuance of the attachment and the seizure of the property thereunder.”</p> <p>3. It is alleged that the court erred in failing to submit to- the jury the question of failure of consideration. The court fully instructed the jury on the questions of express warranty and implied warranty and fraud and deceit, which necessarily included the doctrine of a failure of consideration; and therefore this ground of the motion is without merit.</p> <p>4. It is alleged that the court erred in failing to charge the j)ury on recoupment, which was set up as one of the defenses. The evidence conclusively showed that if there were any defects in the car, they were waived by the defendant after he had run the car for some time, he signing one of the series of notes given for the purchase-price, which had been overlooked when the trade >vas made, and the evidence fails to show that the defendant called the attention of the plaintiff to any defects in the car, or offered to rescind the trade. Therefore, if the failure of the court ter charge on the subject of recoupment was error at all, it was harmless.</p>

<p>Action for damages; from city court of Hinesville—Judge W. C. Hodges. March 27, 1919.</p>

<p>Complaint; from Haralson superior court—Judge Irwin. April 5, 1919.</p>

<p>Trover; from city court of Floyd county—Judge Nunnally. April M, 1919.</p>

<p>Complaint; from Franklin superior court—Judge W. L. Hodges. March 27,1919.</p>

<p>Action on insurance policy; from city court of Floyd county— Judge Nunnally. April 29, 1919.</p>

<p>Appeal; from Grady superior court—Judge Harrell. March 7, 1919.</p>

<p>Action for damages; from city court of Thomasville—Judge W. H. Hammond. April 9, 1919.</p>

<p>Action for damages; from city court of Atlanta—Judge Eeid. May 17, 1919.</p>

<p>Trover; from Barrow superior court—Judge Cobb. April 3, 1919.</p>

<p>Action for damages; from city court of Savannah—Judge Rourke. March 20, 1919.</p>

<p>Complaint; from Walker superior court—Judge Wright. May 3, 1919.</p> <p>The first numbered paragraph of the plaintiff’s petition is as follows:</p> <p>“On December 28, 1917, said Clarence Estes agreed to sell to petitioner the following described real estate, to wit: All that tract or parcel of land lying and being, in the seventh district and fourth section of Walker county, Georgia, and the north half of lot of land No. 20 in said district and section, containing 80 acres more or less, and more particularly described as follows: commencing at the public road and running thence south to E. E. Delay’s land, thence east to lands of John Arnold, thence north to Hugh Coffman’s land, and thence with the public road to the beginning point. i</p> <p>“And at said time, to wit, December 28, 1917, petitioner paid to said Clarence Estes the sum of $10.00, as shown by the receipt, a copy of which is as follows:</p> <p>“ 'Dee. 28, 1917. Deceived of Luther Clemons, $10.00, on payment of place, other to be paid Saturday, Dec. 29, 1917.</p> <p>Clarence Estes.’</p> <p>“At and for the sum of $1050.00, which said purchase-money, according to the statement in, the receipt, was to be paid on Saturday, December 29, and the trade completed.”</p>

<p>1. A driver operating a jitney-bus under a license granted by the City of Savannah, in accordance with the terms of an ordinance regulating the operation of all such vehicles, is not a public officer in contemplation of law, and in a suit against such a driver by a person claiming to have been injured by his negligence in the operation of a jitney-bus, the surety on the bond of the jitney driver was not a proper party to the proceeding, and the court did not err in dismissing the case as to the surety.</p> <p>2. Where suit was brought against such a surety after judgment had been obtained against his principal, the jludgment against the principal was not conclusive as to the liability of the surety, but was only prima facie evidence thereof; and the surety could set up any legal defense showing want of liability on the part of his principal.</p>

<p>Certiorari; from Irwin superior court—Judge Eve. April 7, 1919.</p>

<p>Certiorari; from Laurens superior court—Judge Kent. May 1, 1919.</p>

<p>Complaint; from Franklin superior court—Judge W. L. Hodges. March 27, 1919.</p>

<p>Action for damages; from city court of Hinesville—Judge W. C. Hodges. May 19, 1919.</p>

<p>Complaint; from Cook superior court—Judge Thomas. May 23, 1919.</p>

<p>Action on insurance policy; from Chatham superior court—■ Judge Meldrim. May 13, 1919.</p>

<p>Action for damages; from city court of Savannah—Judge Freeman. June 6, 1919.</p>

<p>Distraint; from city court of Americas—Judge Harper. Jane 28, 1919.</p>

<p>Complaint; from city coart of Floyd coanty—Judge Nunnally. Jane 5, 1919.</p>

<p>1. In an action to recover under a policy of accident insurance, it is incumbent upon the plaintiff to prove the accidental character of the injury as laid in his petition. Travelers Insurance Co. v. Newsome, 147 Ga. 608 (95 S. E. 4).</p> <p>2. Under the evidence in this ease the jury would have been authorized to find that the preponderance of the testimony established the plaintiff’s contention that the fatal infection originated at the place upon the ear where the accidental abrasion had occurred. If, therefore, the direction of the verdict in favor of the defendant had been based upon the contrary theory, that it must have originated in the throat, as contended for by the defendant, such action would not have been justified.</p> <p>3. Where the evidence shows either that an infection occurred at the time an accidental wound was received, or that it followed as a natural and ordinary consequence, the death ensuing from such injury and infection can properly be accounted as accidental within the meaning of the terms of the policy herein quoted.</p> <p>4. If, however, one who has knowingly sustained an accidental abrasion upon the exposed surface of his body nevertheless thereafter continues to bring himself in contact with and to treat a patient affected with a virulent type of contagious disease such as is capable of being transmitted through immediate proximity with such exposed wound or abrasion, and as a result of such voluntary risk he thus becomes infected with and contracts’ the disease, and it results in his death, the proximate cause thereof can not properly be said to be the original “bodily injury sustained and effected directly through external, violent and accidental means, exclusively and independently of all other causes.” Southern RailwaysJjO. v. Webb, 116 Ga. 152 (42 S. E. 395, 59 L. E. A. 109).</p> <p>5. All pleadings mush receive a construction in accordance with the natural intendment of the words and language used, and, as a general rule, must be construed most strongly against the pleader (Athens Mfg. Co. v. Ruclcer, 80 Ga. 291 (4 S. E. 885) ; but if a petition be subject to two constructions, and there be no demurrer thereto, and the ease has proceeded to trial and resulted in a verdict, then, in determining whether the case has been proved as laid, that construction will be adopted which is most favorable to the assertion of a cause of action in the plaintiff’s favor. Payton v. Gulf Lime Ry. Co., 4 Ga. App. 762 (62 S. E. 469).</p> <p>(a) Construing the petition in this case in accordance with the natural meaning of the language used, its allegations to the effect that the deceased, “while attending” an erysipelas patient, accidentally scratched his ear in adjusting his glasses, and the scratch “became” infected with the germ of the disease, would seem necessarily to mean that the wound or scratch occurred while the decedent was attending his patient, and that by reason of such exposure to the patient it then and there became infected. Giving the petition what seems to be the only reasonable and 32 proper construction, the evidence adduced upon the trial entirely fails to sustain the ease as laid, since from the plaintiff’s own evidence it is shown that the abrasion upon the ear occurred at the office of the assured in the city of Atlanta, whereas the erysipelas patient was a resident oí another and neighboring city. If the infection occurred as a consequence of the voluntary act of the assured in thereafter subjecting the wound or abrasion to such a serious and dangerous exposure, then, under the ruling made in the preceding paragraph, the defendant would not be liable.</p> <p>¡(6) But even were it possible to give to the petition the construction contended for in the brief of plaintiff’s attorneys,—that is, that the assured contracted the disease from his infected glasses in the very act and at the same time the accidental abrasion upon the ear occurred,—there is absolutely no evidence of any character from which it could possibly be said that the plaintiff has carried the burden thus imposed upon him, since it is disclosed by his own evidence that the infection might have easily originated at the point of the abrasion in another and different way, namely, by the subsequent voluntary exposure of the wound to the disease germs, and there being no evidence of any character which could possibly tend to show to the satisfaction of the j)ury which of these two reasonable theories, both presented by the plaintiff’s evidence, was in fact the more probable. Georgia By. <£• Ml. Go. v. Harris, 1 Ga. App. 714 (57 S. E. 1076); Carroll v. Atlanta Paper Co., 7 Ga. App. 584 (67 S. E. 680).</p>

<p>Action for malicious prosecution; from city court of Elberton— Judge Tutt. February 11, 1919.</p>

Action on contract; from city court of Blakely—Judge Sheffield. January 20, 1919.

<p>Distraint; from DeKalb superior court—Judge Smith. February 7, 1919.</p>

<p>Distraint; from Eockdale superior court—Judge Smith. February 7, 1919.</p>

<p>Complaint; from city court of Cairo—Judge Harrell presiding. March 27, 1919. y</p>

<p>Complaint; from Newton superior court—Judge Smith. March 28, 1919.</p>

<p>Action on foreign judgment; from Chatham superior court—1 Judge Meldrim. July 1, 1918.</p>

<p>Trover; from city court of Valdosta—Judge Cranford. April 15, 1919.</p>

<p>Action for damages; from Kichmond superior court—Judge Henry C. Hammond. June 3, 1919.</p>

<p>Motion to set aside judgment; from Cobb superior court—Judge Morris. May 10, 1919.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Affidavit of illegality; from city court of Hazelhurst—Judge Christian presiding, November 29, 1918.</p>

<p>The petition was subject to general demurrer, since it was an attempt to join in a single suit a cause of action arising ex contractu with one growing out of a tort. Such a practice is not permissible.</p>

<p>Foreclosure of lien; from city court of Newnan—Judge Post. April 7, 1919.</p> <p>Jackson, a cropper of Todd, foreclosed a laborer’s lien for a sum which he contended’ was due for his share of the crop made by him on the defendant’s land. The defendant filed a counter-affidavit, denying indebtedness, and on the trial of the issue the verdict was in favor of the plaintiff. The instruction quoted in paragraph 2 of the foregoing decision relates to cotton which the plaintiff contended was a part of his share of the crop.</p>

<p>Certiorari; from F.ulton superior court—Judge Bell. March 21, 1919.</p>

<p>Motion to set aside judgment; from Grady superior court-judge Harrell. September 1, 1919.</p>

<p>Action for damages; from Fulton superior eourt—Judge Pendleton. December 12, 1918.</p>

Action for malicious prosecution; from Laurens superior court —Judge Kent. January 31, 1919.

<p>Action for slander; from city court of Eastman—Judge Griffin. April 5, 1919.</p>

<p>The provision in the insurance policy in question, which insured against loss or damage by fire to a certain building in a city, that the insurer should not be liable for “loss caused directly or indirectly . . by order of any civil authority, . . or (unless fire ensues, and, in that event, for damage by fire only) by explosion of any kind,” should be construed in the light of the section of the code'which declares that “a loss or injury may occur from fire without the actual burning of the articles or property; as, a house blown up to stop a conflagration” (Civil Code of 1910, § 2470) ; and this provision of the policy afforded no defense to an action on the policy, where the plaintiff sought to recover for damage to window-glasses and plastering of the insured building, caused by concussion from the explosion of dynamite in a neighboring building in which the fire department of the city had placed it for the purpose of blowing up the building in order to stop the progress of an approaching conflagration.</p>

<p>1. On the trial of an action against a railroad company for damage to the plaintiff’s fish-pond from water and mud flowing into it in consequence of the placing of a fill across a stream and the construction of certain ditches in the building of the railroad, by which .rain-water was diverted from its natural 'course of drainage and into the pond, where .the evidence was uncontradicted that, prior to the. construction of the railroad, the land on which it was constructed adjacent to the fishpond was conveyed to the> railroad, company by a deed of the plaintiff, in which it was stipulated that the land should, be used only for the purpose of a common carrier, andHliat the grantor reserved the privilege of raising the water in his fish-pond, and where there was no charge of negligence, nor any evidence that the railroad was improperly or negligently constructed or maintained, or could have been constructed in some other way that would Sot have caused the alleged damage, a verdict, for the defendant was proper, and no other verdict would have been authorized.</p> <p>2. The^first grant of a new trial is error where the evidence, together with all reasonable deductions and inferences therefrom, construed most strongly in favor of the losing party, demands the verdict returned,</p>

<p>Action for damages; from city court of Houston county— Judge Riley. May 19, 1919.</p>

<p>Eviction; from city court of Blackshear—W. A. Milton, judge pro hac vice. March 30, 1919.</p>

<p>Accusation of larceny; from city court of Americus—Judge Harper. June 21, 1919.</p>

<p>Action for damages; from city court of Savannah—Judge Freeman. June 7, 1919.</p> <p>Lula L. Corbett sued the hotel company for damages on account of alleged conduct of servants and agents of the defendant toward her while she was a guest in its hotel. The petition alleges, in substance, that shortly after her arrival in the City of Savannah on a given date she became a guest of the hotel; that she retired to her room for the night, and several hours later the telephone bell in her room rang; she got out of bed and answered the call, and a voice said, “Some one wants to talk to you;” she waited a reasonable length oí: time, returned to her bed, and in a few minutes was again called over the telephone in her room, and a voice at the telephone said, “Is that you?” (calling a name she did not understand), and then said, “This is Mabel, when are you coming home?” whereupon she told the person speaking (whom she did not know) to ring off and not to disturb her. Shortly afterwards there were repeated raps upon her door; she thought a mistake had been made, and paid no attention to the raps, and a voice from without said, “This is the house detective. Open the door.” She said, “Leave that door, I will not open it. I have retired and am now undressed.” “Don’t disturb me.” She telephoned to the night clerk on duty at the desk of thet hotel and told him, “if he had a house detective or any one else, to send them up to her room door, as there was some one at her door trying to get in.” She again retired and heard men talking in the hall. There was another rap upon her door, which she did not answer, and the door of her room was opened by a pass-key, and she was surprised to see the man who claimed to be the house detective, accompanied by a police officer of the City of Savannah, who was in full uniform, standing at the door, flashing a light upon her. She was outraged at-their conduct and demanded what they meant by intruding on her privacy, and the police officer replied, “We expected to. find a man in this room, but we have made a mistake.” He asked her name, and she told him, and he said he had seen the name on the book downstairs. She ordered the men out of her room, after first telling them to search it to see if there was any man present. She was “shocked to the extreme, and, as a result of the treatment she received, was in a highly nervous condition.” It was the duty of the defendant, in operating its telephone exchange, not to have allowed her to be thus disturbed at that unreasonable hour of the morning. No communication could be had through the telephone in her room without passing through an exchange in the office of the hotel, where connections were made with telephones in the other rooms of the hotel, as well as outside in the city; and thus the servants and agents of the defendant had direct supervision over all telephone calls going to her room and to the other rooms of the hotel. She •conducted herself in a proper and ladylike manner, and was entitled to the protection of the defendant during the time she was a guest at the hotel. In paragraph l1? it is alleged, that the telephone calls to her room, the raps upon her door, and the action of the police officer were all caused by the servants and agents of the defendant, and that she is unable to state their names, for want of sufficient information. It is further alleged, that the presence of the police officer at her door was caused by the servants and agents of the defendant (whose names are unknown to her), who conducted the officer to her room and then entered her room as stated above, having informed him that acts of immorality were being conducted in the room, which charge was false. She “therefore shows that she has been injured and damaged in the sum of twenty thousand dollars.” By amendment it is alleged, that the person rapping at her door was the house detective of the defendant, who was then and there acting within the scope of his authority and in obedience to his master’s orders; that the police officer was accompanied to the plaintiff’s room by the house detective, who was then and there acting within the scope of his authority and in obedience to his master’s orders; and that the servants and agents referred to in paragraph 17 were the night clerk in charge of the desk at the hotel, the telephone operator operating the telephone exchange inside the hotel, and the house detective.</p> <p>The defendant demurred generally and on numerous special grounds. In the demurrer it is contended that the petition is duplicitous, in that it does not show whether the action is intended to be brought on a breach of contract or a breach of duty, and, if on a breach of duty, whether for a slander or an interference with the privacy of the plaintiff. It is also contended that the petition fails to show that the acts of the alleged servants and agents were within the scope of their employment and done under their master’s authority;'that the allegations as to their authority are merely statements of a conclusion. The court overruled the demurrer, and the defendant excepted.</p>

<p>Complaint; from city court of Amerieus—Judge Harper. June 8, 1919.</p>

<p>Indictment for burglary; from Fulton superior court—Judge Humphries. July 12, 1919.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Complaint; from Early superior court—Judge Worrill. July 26, 1919.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Action for damages; from city court of Greenville—Judge Sevill. July 1, 1919.</p> <p>McEae sued the railway company for damages in the sum of $1,455, on account of the destruction of certain property of the plaintiff by fire alleged to have been caused by sparks emitted from a locomotive. The petition gave an itemized statement of the property, including a dwelling house valued at $1,200, and outhouses, fences, and other improvements of value stated, the whole amounting-to the sum sued for. The trial resulted in a verdict against the railway company for $850. The defendant moved for a new trial, on the grounds that the verdict was contrary to law and the evidence, and excessive, and that the court erred in certain instructions to the jury as to the measure of damages, and in not giving in charge the correct measure of damages. The motion was overruled, and the movant excepted. In the brief of counsel for the plaintiff in error it was admitted, that “the evidence, though circumstantial, would authorize $ finding that sparks from the engine set fire to the house,” but it was contended that the evidence for the defendant rebutted any presumption of negligence in the condition or operating of the engine.</p> <p>1. As to damages the court charged the jury as follows: “If you find the defendant is liable for this fire, then you go forward and determine what damages Mr. McEae sustained by reason of the fire; take all the evidence and determine that. He sued in the aggregate for $1,455. He says he had a house with a seven-foot hall and with a front porch and back porch attached to the same,—four-room dwelling house. He must show you the market value of that house at the time of the fire. If he has shown the railroad company is liable, he would then be entitled to recover whatever the value of that house is shown to be at the time it was destroyed by the fire. He says he had one smoke-house of the value of $70. Well, gentlemen, the same thing as to that. He must show how much he was damaged, the market value. If he has shown that and has shown you what his damages were, he would be entitled to recover whatever the evidence shows the damages were on this occasion, and the measure of damages is the market value of the property at the time the property was destroyed by the fire, if the railroad company was liable.” In. the motion for a new trial it was contended that these instructions were erroneous, “because all of the damages sued for in this ease are to the improvements on the lot, which were, as a matter of law, of the freehold; and the amount which the plaintiff was entitled to recover, if any, was the diminution in the market value of the premises, or corpus" or freehold; the value of the house was not the correct measure of damages.”</p> <p>2. In the motion for a new trial it was contended that “in no event was the market value of the buildings and improvements burned, with interest, equal to the amount of the verdict.” The plaintiff testified that he built the dwelling house in April, 1905, at a cost of about $950, and it was burned in June, 1917, and at the time of the burning nothing was decayed about it but the roof, and it was then worth at least $800 or $900. He further testified that the price of lumber was lower in 1905 than when the house was burned, and, taking into consideration the price of lumber at the time of the burning, he would say that the value of the dwelling house at that time “would have been $1,200 or $1,400.” Values of other improvements burned were stated, aggregating about $150 or more. A witness who stated that he was a builder and contractor testified: “When Mr. McEae’s house was burned . . the dwelling and everything around it I considered worth $1,000. . . I consider the house burned was worth $1,000. . . I testified that the market value of this house was $1,000. I based that estimate on just the lumber and labor it would take to build a house like it.” To replace everything “would cost now $1,360, about $1,360 in 1917, I think.” Witnesses for the defendant testified that “the fair market value of that place at the time the house was burned was . . about $600,” and that the fair market value of the house at that time was $400 to $600.</p> <p>3. It was testified that the fire which .burned the houses was seen just after the train passed, that it was “puffing more than usual when it passed,” and that “it seems that the steam was -kinder low when they were switching in there, and fire kinder red, and caused a lot of fire and smoke and sparks to fly; the sparks were about as big as your thumb,” and “went right to the house.” Later the witness who made this statement as to the size of the sparks testified that he did not examine them, that he saw the live coals and the flame around them, but would not attempt to tell the actual size of the cinders or- sparks. Tw engineer and the fireman of the locomotive and the engine-inspector of the defendant testified as to the condition of the engine and the spark-arrester. It was testified that the netting and other appliances used to prevent the escape of sparks from the engine were of the best make known and were in good condition when the train passed the plaintiff’s property on the day of the fire; that they were of the kind in general use on railroads; that there was no way to prevent entirely the escape of sparks from the engine when in operation, and that it was being operated in the usual manner. It was further testified that sparks as large as the end of the thumb or of the little finger could not have got through the spark-arrester if it was in good condition.</p>

<p>Complaint; from city court of Hazelhurst—Judge Knox. July 5, 1919.</p>

<p>Action for damages; from Decatur superior court—Judge Harrell. July 19, 1919.</p>

<p>Accusation of sale of liquor; from city court of Dawson—Judge Edwards. September 5, 1919.</p>

<p>Action for damages; from Decatur superior court—Judge Harrell. July 19, 1919.</p>

<p>Indictment for possession of liquor; from DeKalb superior court —Judge Smith. September 2, 1919.</p>

<p>Indictment for murder; from Terrell superior court—Judge Worrill. September 1, 1919.</p>

<p>Indictment for manufacture of liquor; from Terrell superior court-—Judge Worrill. September 1, 1919.</p>

<p>Indictment for murder—conviction of voluntary manslaughter; from Cobb superior court—Judge Morris. September 13, 1919.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Indictment for possession of intoxicating liquor; from Brooks superior court—Judge Thomas. September 5, 1919.</p> <p>According to the evidence for the State, the defendant, when arrested at the railroad-station in Thomasville, on the charge of having whisky in his possession, had in his arms a package containing about ten half-pints of whisky, and was standing among several suit-eases filled with pints and half-pints of whisky, one of which was marked “Moses Williams, Thomasville, Ga.” The defendant had a minor son of that name, and was then living near Thomasville. The only person near him when the officers first saw him on that occasion was his brother Arch Williams. A train had just passed and several passengers had alighted and gone off. The suit-cases against which the defendant was standing were between the main line and a side-track of the railroad. When told of the charge against him the defendant said, “You have got me. Can’t we settle it in some way?” And he proposed that the officers take the whisky and let him go. He did not deny to the officers that he owned the suit-cases; he said nothing about them. Two of the suit-eases, including the one marked with the name Moses Williams, were introduced in evidence, over the objection of the defendant that they had not been identified as belonging to him, and were irrelevant and immaterial. These two suit-cases were the physical evidence referred to in the first paragraph of the foregoing decision.</p>

<p>Indictment for larceny; from Cobb superior court—Judge Morris. September 13, 1919.</p>

<p>Indictment for manufacture of liquor; from Terrell superior court—Judge Worrill. September 22, 1919.</p>

<p>Indictment for manufacture of intoxicating liquor; from Terrell superior court—Judge Worrill. September 22, 1919.</p>

<p>Indictment for manufacture of intoxicating liquor; from Jasper superior court—Judge Park. September 24, 1919.</p>

<p>1. A sufficient retraction of an incorrect instruction to the jury was made where, immediately after the instruction had been given, counsel interrupted the charge of the court and called attention to the error, and thereupon the judge gave a correct instruction covering the same matter, although he did not expressly state that the incorrect instruction was withdrawn.</p> <p>2. Refusal to allow the jury to view the premises at which a disorderly house was alleged to have been kept by the defendant was not cause for a new trial.</p> <p>3. Perjury of a witness is not ground for a new trial, unless it appears that the witness wilfully and corruptly swore falsely, and was duly convicted thereof, and that the verdict rendered could not have been obtained without his testimony. Civil Code (1910), § 5961.</p> <p>4. The evidence authorized the verdict.</p>

September 26, 1919. In the bill of exceptions it was contended that the person who paid the fine for the defendant had no right to do so; that neither the defendant nor another person had the right to pay the fine without the consent of the court; that the judgment was superseded pending the motion, and the paying of the fine was contrary to law.

<p>Indictment for sale of intoxicating liquor; from Gordon superior court—Judge Tarver. August 30, 1919.</p>

<p>Accusation of larceny; from city court of Oglethorpe—Judge Greer. September 29, 1919.</p> <p>Jim Dowdell was charged with the larceny of seed-cotton, alleged to have been stolen from the gin-house of R. H. Stubbs. On the trial Stubbs testified: “In this gin-house I had stored several bales of loose seed-cotton; it was packed in stalls. The cotton in some of these stalls was picked the first of the cotton season, and remained there without being ginned. It was clean and not discolored. . . On the morning of the 16th of December, 1918, I noticed cotton scattered about in front of the gin-house and along the path leading from the gin-house across the field to the road. I went in the gin-house and found that some of my seed-cotton was missing, some from out the stall in which the cotton which had been picked the first of the season was stored. I followed this path across the field and found cotton all along on the ground and hanging on the bushes on the side of the path. I followed the path to the road and then up the road a good ways, about a mile or more in all. I found cotton on the ground as far as I went. I then went back to the house and phoned the sheriff about it and asked him to come and bring his dogs. The sheriff . . arrived in a little while with his dogs; he turned the dogs loose around the gin-house; at first they ran about and went off in several directions for short distances; finally they struck a trail along the path I had followed, and followed it to the road, where we saw where a wagon had been loaded and turned around, and some wagon-tracks and cotton in the road. . . The cotton which I missed was short-staple cotton, Toole variety, . . white cotton, picked the first of the season; this cotton belonged to me and I missed about 400 pounds of it, value about $40. The defendant, Jim Dowdell, lived about five miles from the gin-house. The sheriff put the dogs in his car and we all followed the wagon-tracks, and the horse was shod all around, and they went to Jim Dowdell’s house, where we found Jim and a wagon and a horse in the lot, shod all around, and several sacks of cotton stacked on his front porch. I don’t remember how many sacks of cotton there were on his porch,—about eight or ten. We examined this cotton and we found that some four sacks of it was just like the cotton I had missed from the gin; it was white seed-cotton, short staple and Toole variety. It looked just like my* cotton. I would swear that it was the cotton which I missed out of my gin-house. . . We found, tracking across the field, that some which had dropped out on some weeds and trash had been picked up, and in the mouths of the sheets we found handfuls of cotton with the same sort of trash on it, and the rest of the cotton on his porch was colored, like it had been picked late in the year and after being rained on. . . I don’t know of anybody else that plants the Toole variety cotton in my section of the country. I don’t think anybody else does but me, but would not say for certain.”</p> <p>The sheriff’s testimony as to what occurred after he took his dogs to the gin-house was substantially the same as that of Stubbs. He testified that the dogs were bloodhounds, trained to follow the tracks of human beings, and were very reliable; that he had run 'them' a great deal; that when Jim Dowdell came from his house out in the yard where they were, these dogs went to him immediately and reared up on him and barked, and “about that time some of Jim’s dogs came from around the house and scared” these dogs away. He further testified: “Jim told me that it was all his cotton, and that he did not steal any of it. He said he had just come back from Mr. Methvin’s store, which is about seven miles from where Jim lives. Mr. Stubbs lives about five miles from Jim’s toward the other way. Jim lives between Mr. Stubbs and Methvin’s store, and it is about twelve miles from E. H. Stubbs’ house to Methvin’s store. Jim Dowdell said that he left his house long before light, and was at Mr. Methvin’s store at snnup. . . I put him in the car and carried him to Methvin’s store, and when we got there Mr. Steve Eoach, a white man, who clerks at Methvin’s store, said that Jim reached the store that morning in the buggy about sunup or a little before, that he came in a buggy and came after a wagon to move his things.” No additional testimony was introduced for the State.</p> <p>Several witnesses testified that ten or twelve sacks of cotton were on the defendant’s porch when the sheriff came there, and that some of the cotton had been picked about the first of the season, when it was white and clean. It was testified that all of it had been there at least several days before the sheriff came, and that all the cotton belonged to the defendant. Steve Eoach testified that Jim Dowdell came to Methvin’s store, about five or seven miles from where Jim lived, about sunup on the morning of December 16, 1919, and that he told Stubbs and the sheriff this on the same day, when they brought the defendant to "the store. It was testified that on the preceding night the defendant was at a house several miles from where he lived, and left there in a buggy about one o’clock in the morning and went directly to his home. This was stated also in the defendant’s statement at the trial; and he said that after arriving at home he remained there until he went in his buggy to Methvin’s store. He stated that all the cotton on the porch had been grown on his farm. It was testified that the sheriff sicked the dogs on him when they ran up to him.</p>

<p>Indictment for burglary; from Floyd superior court—Judge Wright. October 1, 1919.</p>

Indictment for burglary; from Cobb superior court—Judge Morris. October 6, 1919. Application for certiorari was denied by the Supreme Court. The indictment charged that the accused broke and entered a certain storehouse and took and carried away certain automobile tires and tubes, with intent to steal them.

<p>Conviction of manslaughter; from Ben Hill superior court— Judge Crum. July 9, 1918.</p>

<p>1. On the traverse of an answer of “not indebted,” filed in response to a summons of garnishment, the issue is, whether the garnishee had at the time of service, or between that time and the date of his answer, assets of the defendant in his hands.</p> <p>(a) Under the answer of the Supreme Court to the certified question in this case (149 Ga. 542, 101 S. E. 190), the statement in the headnote in Mosely v. McGough, 69 Ga. 748, that “on the traverse of an answer of not indebted, filed in response to a summons of garnishment, the issue is, whether the garnishee had at the time of service, or has since had, assets of the defendant in his hands,” is not correct, and it will not be followed as a ruling of that court.</p> <p>2. There is no statute of force in this State making the process of garnishment available to a creditor who seeks to subject realty of his debtor in the possession of a third person to the payment of the creditor’s debt.</p> <p>(а) The word “property” in section 5272 of the Civil Code of 1910 does not include land.</p> <p>(б) Nor do the words “legacy or distributive share,” in section 5304 of the Civil Code include land, or any interest therein.</p> <p>3. Applying the principles of law stated above to the facts of the instant case, the finding in favor of the traverse and against the answer of the garnishee was contrary to law and the evidence, and the court erred in overruling the general grounds of the motion for a new trial.</p>

<p>Complaint; from city court of Savannah—Judge Freeman. February 19, 1919.</p>

<p>Complaint; from city court of Floyd county—Judge Nunnally. February 35, 1919.</p>

<p>Action for 'damages; from Fulton superior court—Judge Bell, February 7, 1919.</p>

Garnishment; from Eult.on superior court—Judge Ellis. March 19, 1919. 1. J. H. Cutter, in business as J. H. Cutter & Company, sued out garnishment on January 30, 1917, based on a pending suit in which the Brown-Cramer Cotton Company was defendant. Summons of garnishment was issued and served on the Central Bank & Trust Corporation on March 10, 1917. An answer denying indebtedness was filed by the garnishee on May 16, 1917.

<p>By the amendment to the petition in this ease (a suit against a builder for injuries from the collapse of a roof of a building upon which the plaintiff was working for the defendant) the case was taken out of the ruling in Byrd v. Thompson, 146 Ga. 300 (91 S. E. 100), on which was based the former decision in this case (23 Ga. App. 249, 97 S. E. 867). The amendment did not set out a new and distinct cause of action, and the petition as amended was not subject to the demurrers.</p>

Action for damages; from DeKalb superior court—Judge Smith. April 14, 1919. Application for certiorari was denied by the Supreme Court. The ground upon which it was contended that the writ of error should be dismissed was that the evidence was not properly briefed. As to failure to use due care and skill in treatment of patient, counsel cited: Civil Code (1910), § 4437; Abridge v. Nolle, 114 Ga. 949; Nevinger v. Haun, 197 Mo.

<p>Action for damages; from Chatham superior court—Judge Meldrim. April 2, 1919.</p>

<p>Action for - damages; from Chatham superior court—Judge Meldrim. April 2, 1919.</p>

<p>The court did not err in overruling paragraph 5 of the defendant’s demurrer, nor in admitting testimony complained of, nor in charging the jury. ’The evidence authorized the verdict, which has the approval of the trial judge, and it was not error to overrule the motion for a new trial.</p>

<p>Complaint; from city court of Camilla—Judge Burson. June 2, 1919.</p> <p>Crawford-Miller Company sued W. A. Tilley and T. Z. Tilley on a promissory note signed by the defendants and payable to the plaintiffs, which recited that it was given for the purchase-price of a certain mule, $345. The defendants filed a plea in which it was alleged, that T. Z. Tilley signed the notes as surety only; that on November 2, 1914, the mule was levied on under the foreclosure of a mortgage of the defendants for purchase-money; that at the time of the levy the defendant W. A. Tilley inquired of the levying officer as to when the mule would be sold, and the officer informed him that it would be sold on the regular sale day in December, 1914, and would be advertised 30 days prior to the sale, as required by law; that neither of the defendants had any notice of an application for an earlier sale of the mule as perishable property, nor that it would be sold under a quick order; that on November 7, 1914, the plaintiff “ attempted to perform a sale” of the mule under the mortgage foreclosure, and did have a pretended sale, at which the plaintiffs became the purchasers of the mule for “the ridiculous price of $110.73;” and ever since this pretended sale the defendants have been deprived of the possession and use of the mule; that, being without prior notice of the sale, the defendants were not present and had no opportunity to protect themselves against the sacrifice of their property at public outcry; that the fair market value of the mule at the time of the pretended sale was equal to its market value when purchased by the' defendant W. A. Tilley from the plaintiffs, and its value on N ember 7, 1914, was not less than $345; that the defendants waive the tort committed by the plaintiffs in thus seizing and converting the mule, and they adopt the transaction and claim that the plaintiffs are indebted to them in a sum equal to the value of the mule on November 7, 1914. The defendants pray “that the amount herein claimed— $345;—less $110.73, the price alleged to have been paid to the plaintiffs when the mule was thus sold by them, be set off against the plaintiffs’ claim,” and that the defendants have judgment freeing them from any liability on the note sued upon.</p> <p>Upon the pleadings and without additional evidence the court directed a verdict' against the defendants for the amount sued for; they made a motion for a new trial, which was overruled, and they excepted.</p>

<p>Complaint; from city court of Dublin—Ira S. Chappell, judge pro hac vice. June 6, 1919.</p>

<p>Affidavit of illegality; from city court of Thomasville—Judge W. H. Hammond. June 30, 1919.</p>

<p>Action of contract; from Fulton superior court—Judge Humphries. February 4, 1919.</p>

<p>Indictment for larceny of automobile; from Floyd superior court —Judge Wright. October 3, 1919.</p>

<p>Indictment for larceny from house; from Spalding-superior court —Judge Searcy. August 2, 1919.</p>

<p>Complaint—garnishment; from Haralson superior court—Judge Irwin. March 22, 1919.</p>

<p>Action of libel; from Gwinnett superior court—Judge Cobb. June 2, 1919.</p>

<p>Conviction of receiving stolen goods; from Miller superior court ■—Judge Worrill. July 7, 1919.</p>

<p>Indictment for burglary; from Crisp superior court—Judge Dower. July 23, 1919.</p>

<p>Lien foreclosure; from Carroll superior court—Judge Terrell. July 9,1919.</p>

Indictment for larceny from house; from Chattahoochee superior court—Judge Howard. August 1, 1919. From the evidence and the defendant’s statement at the trial it appeared that a large saw which he had been using in his sawmill and had sent off to be repaired was shipped back to him by express, 0.

<p>Indictment for assault with intent to murder; from Floyd superior court—Judge Wright. September 25, 1919.</p>

<p>Conviction of involuntary manslaughter; from Jasper superior court—Judge Park. September 34, 1919.</p>

<p>Motion for new trial; from city court of Wrightsville—Judge Blount. September 11, 1919.</p>

Certiorari; from Fulton superior court—Judge Pendleton. December 2, 1918. Held: and that it did not appear how Mrs. Oakes was liable.

<p>Complaint; from Gilmer superior court—Judge Morris. February 8, 1919.</p>

<p>The order oí the trial judge setting aside the first verdict and judgment in this case did not change the effect of his prior orders striking the plea to the jurisdiction, the demurrer, and the motion to dismiss the suit; and when the case again came up for trial it was proper for the court to dispose of it without reference to the stricken plea, demurrer, and motion to dismiss.</p>

<p>Trover; from Bibb superior court—Judge Mathews. February 87, 1919.</p>

<p>Certiorari; from Fulton superior court—Judge' Bell. March 8, 1919.</p>

<p>Complaint; from Catoosa superior court—J. E. Rosser, judge pro Rae vice. February 3, 1919.</p>

<p>While ordinarily, upon the pendency of a motion for new trial, it is necessary to obtain an order of the trial judge, in order to extend beyond the statutory period the time within which a movant may present and have approved a brief of evidence, the necessity for such order and the approval of the brief of evidence within the statutory period may be waived by agreement between counsel, either express or implied. Counsel for the respondent may, by his conduct in open court in consenting to a motion for continuance made by the movant for the express purpose of perfecting and presenting for approval a brief of evidence beyond the statutory period, and by his subsequent acts, be considered as having waived the necessity for an order extending such time, or as having waived his right to insist upon the filing and approval of the brief of evidence within the statutory period.</p>

<p>Action for damages; from Fulton superior court—Judge Bell. March 28, 1919.</p>

<p>Action for damages; from Fulton superior court—Judge Bell. April 21, 1919.</p>

<p>Complaint; from DeKalb superior court—Judge Smith. May 13, 1919.</p>

<p>Complaint; from city court of Macon—-Judge Guerry. March 22, 1919.</p>

<p>Complaint; from Jones superior court—Judge Park. June 7, 1919.</p> <p>The defendant in his answer admitted the execution of the note sued on, and pleaded that the note “was given through a fraud perpetrated upon him by James Stewart as agent for F. M. Stewart (the plaintiff), as follows:" In February, 1915, defendant sold to A. T. Small a certain tract of land in Jones county, which defendant had rented to Jaque Marsh, and Marsh’s rent note for the place for that year, which defendant held, was turned over to Small. Subsequently James Stewart came to defendant with a note in his hands which he claimed was the said rent note, and told defendant that Small wished him (James Stewart) to get defendant to indorse it to Small. Defendant, having the utmost confidence in James Stewart, and not being able to read without glasses and not having his glasses with him, signed the note sued on, believing that it was an indorsement of the rent note. The note sued on purports to have been signed September 15, 1911, while in fact it was not signed at that time, but was signed in February, 1915. Defendant would not have signed it without reading it or having some one read it to him, if he had not had the utmost confidence in James Stewart. The note sued on is totally without consideration, for the reasons set out above, and defendant is not indebted in any amount to the plaintiff, and the plaintiff, through his agent James Stewart, has perpetrated a fraud on defendant without any fault on the part of defendant.</p>

<p>Complaint; from Walker superior court—Judge Wright. June 6, 1919.</p>

<p>Action on insurance policy; from city court of Atlanta—Judge Eeid. May 8, 1919.</p>

<p>1. The right of certiorari is a constitutional right and the writ lies to correct errors in any inferior judicatory, including the municipal court of Atlanta. While a writ of certiorari lies to a final judgment entered upon a verdict rendered in the municipal court of Atlanta, without any motion for new trial having been made, it does not follow that when the losing party avails himself of his statutory right to an oral motion for a new trial to set aside such judgment he forfeits his constitutional right to except by certiorari to the original judgment. After an oral motion for a new trial in the municipal court of Atlanta has been finally disposed of, either by having been overruled or dismissed, the jurisdiction which that court had over the case thereby ceases and the original judgment stands as final. Where a motion for new trial is made in the municipal court of Atlanta and overruled, certiorari afterwards lies to the original judgment rendered therein if presented within thirty days from the rendition of the judgment, and in the petition for certiorari it is not necessary to except to the action of the trial judge in overruling the motion for new trial.</p> <p>2. If certiorari does not lie to correct a judgment upon the ground that it is contrary to the evidence and the principles of equity and justice, or that it is decidedly and strongly against the weight of the evidence, a petition for certiorari will not be dismissed on such ground when, in addition to such ground, it presents for determination a question of law.</p> <p>3. The plaintiff in certiorari, in attempting to fully and plainly set forth what transpired upon the trial, is not required to make a brief of the evidence adduced upon the trial, but may incorporate in his 'petition a stenographic transcript of the testimony, set forth in questions and answers. It is error to dismiss such a petition upon the ground that no effort was made on the part of plaintiff in certiorari to make a brief of the evidence. See, in this connection, ■Meacham v. State, 7 Oa. App. 713 (68 S. E. 52).</p> <p>4. The Civil Code, § 5185, provides: “Before any writ of certiorari shall issue, . . the party applying for the same . . shall give bond and good security, conditioned to pay the adverse party in the cause the eventual condemnation money, together with all future costs.” A bond, attached to a petition for certiorari, which recites the case by name and designates it as “in the municipal court of Atlanta,” and obligates the plaintiff in certiorari and his security for the “eventual condemnation money and all future costs in said case” (italics ours), is not void upon the ground that it is conditioned only to pay the future costs in the municipal court of Atlanta, and not all future costs. The phrase “in said case” will not be construed as applying only to the case as pending in the municipal court of Atlanta, but will be construed as referring to the ease by name, irrespective of the court in which it is pending.</p> <p>5. The court erred in dismissing the petition for certiorari, upon motion filed by the defendant in certiorari.</p>

<p>Where a person was sued in a county other than that of his legal residence or domicile, and the sheriff’s entry of service stated that the defendant was served by leaving a copy “at his place of residence,” and the defendant appeared and filed a plea to the jurisdiction, alleging that he was a resident of another county, naming the county, traversing the entry of service and making the sheriff a party to the traverse, and upon the trial of the traverse and the issue made on the plea to the jurisdiction two separate verdicts were rendered, the first sustaining the traverse to the return of the sheriff' and the other sustaining the plea to the jurisdiction, upon which verdicts the court entered a judgment reciting the verdicts and dismissing the case for want of jurisdiction, held, that this suit was such a suit as prevented the statute of limitations from running as against a subsequent suit brought for the same cause of action within six months in the county of the defendant’s true residence.</p>

<p>Eviction; from Laurens superior court—Judge Kent. August 1, 1919.</p>

<p>Complaint; from Douglas superior court—Judge Irwin. July 2, 1919.</p>

<p>Action on contract; from Colquitt superior court—-Judge Thomas. July 25, 1919.</p>

<p>1. In a suit upon a promissory note signed “Lowery- Brothers Company by M. M. Lowery, secretary and treasurer,” the court did not err in admitting the note in evidence, in view of the proof that M. M. Lowery was secretary and treasurer of Lowery Brothers Company; and the note, taken together with the other testimony adduced on the trial, made out a prima facie case in favor of the plaintiff. The court therefore erred in granting a nonsuit.</p> <p>2. The evidence having shown that M. M. Lowery was the secretary and treasurer of the Lowery Brothers Company, conversations with him relative to the transaction in question and letters written by him relating thereto were properly admitted in evidence. This ruling disposes of the 1st, 2nd, 3rd, 4th, and 8th grounds of error assigned in the cross-bill of exceptions.</p> <p>3. The court did not err in admitting in evidence certain portions of the pleading in the case of Dawson Pecan Oo. v. Montezuma Go., 19 Ga. App. 42 (90 S. E. 984), to wit: “Eor further answer this defendant says that the note sued on in the above-stated case was never executed by the Dawson Paper Shell Pecan Company, or its predecessors, the Lowery Brothers Company, nor by any officer or agent of said defendant company who was authorized to execute the same, and the same was not the act or deed of the said defendant company, but was an ultra vires act of M. M. Lowery, who was at the date of said notes secretary and treasurer of said defendant company.” Although in a separate suit from t-his one, the excerpt from the answer in that suit was admissible in evidence as illustrative of whether or nót M. M. Lowery was such an officer of the Lowery Brothers Company.</p> <p>4. The 6th and 7th grounds of the cross-bill of exceptions are covered by the ruling stated in the first headnote.</p>

<p>Affidavit of illegality; from city court of Nashville—Judge Lovett. August 33, 1919.</p> <p>The affidavit of illegality was interposed by Mrs. H. A. Day in March, 1918, to an execution based on a judgment rendered against her and Ed. Courson in favor of the Bank of Sparks in the city court of Nashville on February-38, 1918. The grounds of the affidavit were: This defendant has never had her day in court, has never been served with a copy of said original suit, had no notice of the pendency of the suit until after judgment, did not waive service, and did not appear and plead to the suit. She traverses the return of the deputy sheriff, J. M. Studstill, “made on December 38th, 1918 [?],” and shows that said return is incorrect and untrue; and she asks that said officer be made a party to this action, for these reasons. Defendant shows that she had a good and valid defense to said suit, to wit: She at the time of the signing of “said note” was married, and she was influenced to sign the same by her husband, whose debt the signing of the note paid; it was not her debt, and she had no interest in the same; she did not get one cent from the signing of said note, and all the proceeds of the same went to her husband. The property levied on was not in any way part of the consideration for the signing of said note. She would have appeared and pleaded to the merits of the suit had she known before that it was pending against her, and she could have readily shown that she was a surety on said note, which was in reality a debt of her husband. A motion to dismiss the affidavit of illegality was sustained, on the ground that it was insufficient in law.</p>

<p>Complaint; from city court of Camilla—Charles Watt Jr., judge pro hac vice. July 26, 1919.</p>

<p>Action on contract; from city court of Valdosta—Judge Cranford. January 24, 1919.</p>

<p>Eviction; from Richmond superior court—Judge Henry C. Hammond. September 1, 1919.</p>

<p>Complaint; from Fulton superior court—Judge Bell. February 7,1919.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Complaint; from Fulton superior court—Judge Pendleton. March 13, 1919.</p>

<p>Action for damages; from Henry superior court—Judge Searcy. April 22, 1919.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Complaint; from city court of Waynesboro—Judge W. H. Davis. March 3, 1919.</p>

<p>Certiorari; from Walker superior court—Judge Wright. May 3, 1919.</p>

<p>Action on contract; from city court of Tifton—Judge Price. June 2, 1919.</p>

<p>Action for damages; from Talbot superior court—Judge Howard. September 1, 1919.</p>

<p>(Certiorari granted by the Supreme Court.)</p> <p>Appeal; from Bibb superior court—Judge Mathews. July 1, 1919.</p>

<p>Complaint; from city court of Yaldosta—Judge Cranford. March 14, 1919. -</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Action for damages; from Warren superior court—Judge Walker. April 3, 1918. See 23 Ga. App. 241.</p>

<p>Action on bond; from Floyd superior court—Judge Wright. February 7, 1919.</p>

<p>Trover; from Dougherty superior court—Judge Harrell. March 26, 1919.</p> <p>Application for certiorari was denied by the Supreme Court.</p> <p>The petition of Walter Morrow against E. B. Young, as amended, alleges, in substance: The said Young is in possession of certain property described, located at 405 North Washington street, Albany, Georgia, in the building formerly occupied by M. S. Woods, trading as Albany Ice Cream Company. The description given includes an itemized list of machinery, fixtures, supplies, and other property. The property described “is the same property a one-half undivided interest in which Walter Morrow sold to M. S. Woods on June 25, 1914, the other one-half interest being owned at that time by M. S. Woods. All of said property, prior to said sale, had been used by the said Walter Morrow and the said M. S. Woods in the operation of a business known as the Albany Ice Cream Company, at 405 North Washington street, Albany, Georgia, and the same was used by M. S. Woods, doing business in the same name—Albany lee Cream Company—at the same place from June 25, 1914, until the date he was adjudicated a bankrupt in October, 1917.” The said sale of the undivided half interest of Morrow to Woods is evidenced by a contract and retention-of-title notes, dated July 25, 1914, and duly recorded on the same day, copies of which are attached to the petition. The contract recites, in substance, that the parties entered into a contract on September 7, 1912, in which it was agreed that Morrow was to purchase an undivided half interest in the Albany Ice Cream Company from Woods, who was the sole owner of the said company at that time, Morrow agreeing to pay Woods $6,-883.58, and paying $2,000 of this sum in cash, the remainder to be paid on or before December 1, 1914, with interest; that Morrow is desirous of selling his undivided half interest back to Woods, and it is therefore agreed that Woods shall pay to Morrow the amount he has invested in said Albany Ice Cream Company—$5,-920—for Morrow’s undivided half interest “in said Albany Ice Cream Company, including all property, machinery, merchandise, books of account, of every kind and description, connected with and belonging to said ice-cream business,” $2,000 of said amount to be paid in cash, and the remainder to be evidenced by retention-of-title notes for stated sums due on given dates in 1914, 1915, 1916, and 1917; that the contract of September 12, 1912, mentioned above, is hereby cancelled and Morrow is relieved from paying to Woods the balance due under that contract. The notes referred to state that they are given for the purchase-money of an undivided half interest “in the Albany Ice Cream Company this day sold me by the payee, Walter Morrow,” and that the title to said property is to remain in the payee until payment of the notes.</p> <p>The petition further alleges: “After the said Woods was adjudicated a bankrupt, in October, 1917, Guy 0. Buckner, as trustee for said bankrupt, advertised all of said property for sale, and refused to recognize petitioner’s right, title, or claim to an interest in the same. Petitioner was present at said sale, which occurred on the 8th day of November, 1917, and announced at said sale that he had a retention of title to a half interest in said property as security for the balance of the purchase-money due him for his interest, and that any one purchasing said property would do so subject to petitioner’s interest. Despite this, said trustee announced that he was selling the entire interest in said Albany Ice Cream Company, free of petitioner’s rights; which petitioner then and there denied and still denies.” “The said E. B. Young, the defendant in this case, bid in said property at said sale and took exclusive possession and control of the same, and denied that . . petitioner had any right or interest in the same, and refused to deliver to . . petitioner any interest in said property, or to recognize petitioner’s rights to the same, though demand was made on him so to do prior to the institution of this suit.” The first two of said retention-of-title notes were paid by said Wood and delivered to him, and the last two of said notes, amounting to $2,420, with interest thereon, less certain credits shown on the notes, represent the amount of petitioner’s claim, for which he holds said retention of title as an assurance of payment. “Petitioner claims title to a one-half undivided interest in all of said property described above, and alleges that his said interest in the same is of the value of $2,875.” Defendant refuses to deliver to petitioner a one-half undivided interest in said property, or recognize the validity of petitioner’s claim for the same, or pay him the profits thereof, though demand has been made on him so to do. The yearly value or hire of said property is $230. Wherefore petitioner prays process, etc.</p> <p>The defendant demurred to the petition generally, and demurred specially to the description of .the property as being too indefinite and uncertain. The court sustained the general demurrer and dismissed the petition, and the plaintiff excepted.</p> <p>In the brief of counsel for the defendant it was contended: (1) that trover would not lie to recover an undivided interest in specific property incapable of division in kind, where a court of bankruptcy had custody of the res and jurisdiction to administer on it; (2) that in the retention-of-title paper the plaintiff did not retain title to any specific property, and therefore could not maintain trover for specific property; and (3) that the description in the retention-of-title paper is too indefinite, and is void because of uncertainty; and the plaintiff can not maintain trover based on such an uncertain description as against the purchaser from a trustee in bankruptcy having the rights of a judgment creditor.</p>

<p>Attachment; from city court of Americus—Judge Harper. April 30, 1919.</p>

<p>Complaint; from city court of Tifton—Judge Price. May 8, 1919.</p>

<p>Attachment; from Chatham superior court—Judge Meldrim. February 5, 1919.</p>

<p>Complaint; from Twiggs superior court—Judge Kent. May 1, 1919.</p>

<p>Complaint; from Milton superior court—Judge Morris. June 14, 1919,</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Action for damages; from Crisp superior court—Judge Gower. June 17, 1919.</p>

<p>Action on contract; from city court of Macon—Judge Guerry. June 16, 1919.</p>

<p>Accusation of possession of intoxicating liquor; from city court of McRae—Judge W. B. Smith. September 22, 1919.</p>

<p>Accusation of larceny from bouse; from city court of Floyd county—Judge Nunnally. October 6, 1919.</p>

<p>Accusation of cheating and swindling; from city court of Thomasville—jítdge W. H. Hammond. October 8, 1919.</p>

<p>Conviction of assault and battery; from McDuffie superior court —Judge Henry C. Hammond. September 21, 1919.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Indictment for burglary; from'Troup superior court—Judge Terrell. September 29, 1919.</p>

<p>Conviction of “unlawful shooting;” from Putnam superior court —Judge Park. October 23, 1919.</p>

<p>Indictment for possession of intoxicating liquor; from Newton superior court—Judge Hutcheson. October 25, 1919.</p>

<p>Whether the bottling company was negligent in the bottling of the beverage sold to the plaintiff, which contained small particles of glass, was, under the evidence, a question for the jury; and the court erred in directing a verdict for the defendant. Bboyles, P. J., dissents.</p>

<p>Conviction of sale of intoxicating liquor; from Wheeler superior court—Judge Graham. October 4, 1919.</p>

<p>Petition for mandamus.</p>

<p>Under the particular facts of this case it was error for the judge to charge: “If the defendant did not put the'plaintiff on notice that this material was to be used for any specific purpose, then what I have charged you with regard to going into the open market and buying other material would not apply to this case or to this condition.”</p>

<p>1. In view of tlie charge of the court, by which the purpose for which the contract admitted in evidence could be considered by the jury was limited to that of showing title, the introduction of the contract was not cause for a new trial.</p> <p>2. The charge of the court was not subject to the criticisms urged, and the court did not err in admitting testimony.</p> <p>3. The case being an action of trover, the verdict for-the plaintiff should have been for a lump sum, and not for a stated sum “with interest at 7%.” The judgment overruling the defendant’s motion for a new trial is therefore reversed, with direction that it be affirmed if interest be written off by the plaintiff in a specified time.</p>

<p>Complaint; from Crisp superior court—Judge Gower. February 8, 1919.</p>

<p>(Certiorari was granted by tlie Supreme Court.)</p> <p>Action for damages; from Cobb superior court—Judge Morris. March 20, 1919.</p>

Action for damages; from city court of Americus—Judge Harper. April 2, 1919. The petition of M. M. Newberry against the H. D. Terrell Land Company, as amended, alleges, in substance: The defendant (a corporation), acting through its officers and agents, has injured and damaged, and become indebted to petitioner in the sum of $6,000, as shown by the facts hereinafter set out.

<p>Action for damages; from city court of Macon—Judge Guerry. April 28, 1919.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>1. The original declaration in attachment, by which it was sought to recover for personal injuries received by the plaintiff while employed as a boiler-maker in the defendant’s plant, sets out a cause of action under the Alabama statute pleaded, to wit, section 3910 of the Code of Alabama,—particularly under subsections 2, 3 and 4 of that section.</p> <p>2. The second count of the declaration, added by amendment, sets out a cause of action under the common law. Durham v. Whittier Mills Go., 9 Ga. App. 26 (70 S. E. 195).</p> <p>3. The amended declaration was sufficiently full and specific to withstand all the grounds of special demurrer urged against it by the defendant.</p> <p>4. The court did not err in overruling the defendant’s special demurrer, but did err in sustaining its general demurrer and dismissing the declaration.</p>

<p>Affidavit of illegality; from Taliaferro superior court—Judge Walker. June 26, 1919.</p>

<p>Application for change of venne; from Bibb superior court— Judge Graham presiding. November 28, 1919.</p>

<p>1. “Service of a rule nisi to foreclose a mortgage on realty, made by a special bailiff appointed by the judge of the superior, court under the Civil Code, § 6310, is not legal, although the service was made by the bailiff during the term of court at and for which he was appointed. The rule nisi must be served by the sheriff or his deputy. The sheriff can not be affected by the act or omission of such special bailiff.”</p> <p>(a) It is different, however, if the person serving as bailiff makes the service at the special direction of the sheriff of the county, and makes the return of service as deputy sheriff.</p> <p>2. Upon the agreed statement of facts the court erred in sustaining the affidavit of illegality.</p>

<p>Action for damages; from city court of Floyd county—Judge Nunnally. January 4, 1919.</p>

<p>The writ of error in this ease must be dismissed for lack of service on the sheriff and his deputy, who were necessary parties to the bill of exceptions. Their acknowledgment and waiver of service after the bill of exceptions had been filed in this court, without an agreement that the case might be heard, as provided in the Civil Code (1910), § 6160 (3), can not prevent dismissal.</p>

<p>í. A ground of a motion for a new trial, as to the exclusion of evidence, is incomplete and not in proper form for consideration by this court* where 'the entire ground, except a copy of a letter therein, is as follows: “Because the following material evidence offered by the movant was illegally withheld from the jury, against the demand of the movant, to wit, that certain letter dated October 3d, 1917, and signed by the plaintiff, of which the following is a copy.” The materiality of the letter and how it affected the case could not be ascertained without examination of other parts of the record.</p> <p>2. Eor no reason assigned did the court err in charging the jury as follows: “I charge you that if you find that the machine in question was delivered to the defendant, that if the defendant had the machine tested and accepted the same, and that he subsequently gave the notes for the payment of the amount in question, he could not be heard to complain that the machine in question was not suited for the purpose for which it was intended, or that it did not produce merchantable products.”</p> <p>3. Grounds of the motion for a new trial which are not argued in the brief of counsel for the plaintiff in error will be treated as abandoned.</p> <p>4. The objection to testimony admitted is not sufficiently stated in a ground of the motion for a new trial that the court erred in admitting the testimony over objection “as to its irrelevancy.”</p> <p>5. The value of the property in question was shown prima facie by the agreed price in the contract of sale; and the evidence authorized the yercliet rendered for the plaintiff.</p>

<p>The well-established principle of law that before a party to a contract is entitled to have it rescinded for fraud in its procurement, he must pay back or tender any valuable consideration received under the terms of the contract, applies to an action for personal injuries, brought under the Eederal “employer’s liability act,” where the plaintiff, after the infliction of the injury sued for, signed, for a valuable consideration, a contract releasing the defendant from all liability therefor.</p>

<p>Complaint; from Toombs superior court—Judge Hardeman. August 28, 1919.</p>

<p>Petition for certiorari; from Fayette superior court—Judge Searcy. August 29, 1919.</p>

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

Action for damages; from city court of Savannah—Judge Freeman. September 18, 1919. The petition of Marcus L. Moffitt against J. L. Highsmith, as ■amended, alleges: On April 11, 1919, the defendant operated a planing mill and employed Herbert Gary as foreman in charge of its operation, and the said foreman was the alter ago of the defendant.

<p>Complaint; from Eloyd superior court—Judge Wright. August 1, 1919.</p>

<p>Indictment for forgery, etc.; from Decatur superior court— Judge Harrell. September 25, 1919.</p>

<p>Application, for administration—appeal, from Floyd superior court—Judge Wright. August 1, 1919.</p>

<p>Complaint; from DeKalb superior court—Judge Smith. September 11,1919.</p>

<p>Accusation of drawing check, without funds to meet it; from city court of Miller county—Judge Geer. October 1,1919.</p>

<p>Application for administration—appeal; from Floyd superior court—Judge Wright. August 1, 1919.</p>

<p>The exceptions based upon the testimony of the defendant’s wife as a witness for the State are not ground for a new trial, under the facts of this case. The other evidence demanded the verdict of guilty.</p>

<p>Indictment for robbery; from Fulton superior court—Judge Humphries. October 18, 1919.</p>

<p>Accusation of possession of intoxicating liquor; from city court of LaGrange—Judge Duke Davis. October 17, 1919.</p>

<p>Trover; from Newton superior court—Judge Hutcheson. October 11, 1919.</p>

<p>Indictment for assault witb intent to murder; from Gordon superior court—Judge Tarver. September 27, 1919.</p>

<p>Indictment for violation of prohibition law; from city court of Blackshear—Judge Mitchell. October 4, 1919.</p>

<p>Conviction of manslaughter; from Fulton superior court—Judge Humphries. September 87, 1919.</p>

<p>Indictment for misdemeanor; from city court of Blackshear— Judge Mitchell. October 11, 1919.</p> <p>The indictment charged Tobo Henderson with having interrupted and disturbed a public school by loud talking and boisterous conduct, the school “being an assemblage and meeting lawfully and peacefully held for the purpose of scientific, literary, and social improvement.” On the trial it was testified, that in December, 1917, a play was given at night by the public school at Hoboken, in Pierce county; the play was given by the school children, and it was an assemblage of the school for the purppse of social improvement; there were recitations and music, and there was also a play with the school children as actors, and some of them had on masks, wigs, and different kinds of costumes, and they sold soda-water, peanuts, and other things for the benefit of the school. It was testified, that during the play the defendant Tobe Henderson came to the schoolhouse, put a sheet over himself, was running and dancing up and down the floor, attempted to grab some girls and pull them under the sheet with him, talked loudly, used such expressions as “Look out,” and “Get out of the way,” and his conduct was so rough and boisterous that it disturbed the assemblage and caused them to break up and go home before the entertainment was over. One of the witnesses smelled whisky on his breath. The school was not in session that night. Witnesses for the defendant testified, that while Tobe Henderson was dancing around on the floor, with the sheet over him, others were doing the same thing; they were having a masked parade or ball, and everybody was talking and laughing, eating peanuts, drinking soda-water and lemonade, dancing, playing, and having a gpod time; and these witnesses did not see him doing anything the others did not do; “it was a free for all good time, apparently;” there were no school exercises of any kind; it was only a public entertainment or ball, and nothing was said or done to disturb anybody; they stayed there until about eleven o’clock, and everybody left quietly and peaceably. The defendant, in his statement at the trial, said that he was invited by “the girls of Hoboken” to attend a masked party at the time referred to in the evidence, and went there with others, and when he got there they were all talking, laughing, and holloing and having a good time, and a certain girl (named) asked where ivas his mask, and said, “There is a sheet; wrap up in it,” and he did so and joined in the merrymaking, without saying or doing anything to disturb anybody, and behaved just as the others did until he left the place. It was testified that Henry Hamilton, one of the witnesses, had said that he saw Tobe Henderson get a sheet out of a car and take it into the schoolhouse with him. Hamilton, in his testimony, had denied making such a state? ment. The motion for a new trial was on the grounds that the verdict was contrary to law and to the evidence.</p>

<p>Indictment for manufacture of intoxicating liquor; from Pike superior court—Judge Searcy. October 13, 1919.</p>

<p>1. The execution issued by the city against the property described therein as belonging to O. W. Wright and as “the property fronting 24 feet at 502 Broad street” was not void because of indefiniteness of description of the property, under the facts of this case.</p> <p>2. The evidence authorized a recovery for breach of warranty by reason of the lien of the city against the property sold by the defendant to the plaintiff.</p> <p>3. No material error of law appears to have been committed on the trial, and the judgment rendered was not erroneous for any reason assigned.</p>

<p>(Certiorari was granted by the Supreme Court.)</p> <p>Action for damages; from city court of Atlanta—Judge Eeid. September 25, 1919.</p>

Certiorari; from Putnam superior court—Judge Park. September 20, 1919. Yiola Hill was convicted in the county court under an indictment which charged that she did, by cursing and using profane and obscene language [and] by being intoxicated, interrupt and disturb a congregation of persons lawfully assembled for divine service at Flat Rock Baptist Church.” She sued out certiorari, alleging that the judgment was contrary to law and the evidence.

<p>Accusation of misdemeanor; from criminal court of Alma— Judge Boatright. July 18, 1919.</p>

<p>Complaint ;from Wilkes superior court—Judge Walker. November 20, 1917.</p>

<p>Certiorari; from Eultou superior court—Judge Bell. March 26, 1918.</p>

<p>Condemnation) from Whitfield superior court—Judge Tarver. October 9, 1918.</p>

<p>Condemnation; from city court of LaGrange—Judge Moon. December 11, 1918.</p>

<p>Trover not being maintainable by one without title to the property, or the right of possession, and it not appearing in this case that either title or the right of possession was in the plaintiff, who, as guardian of her minor son, sought to recover an automobile sold by him to another, which she testified she had bought for him and for which he gave his notes indorsed by her, a verdict for the defendant was- proper.</p>

<p>Action for damages; from city court of Blakely—Judge Sheffield. October 21, 1918.</p>

<p>Action for damages; from Floyd superior court—Judge Wright. January 7, 1919.</p>

<p>Complaint; from Fulton superior court—Judge Pendleton. December 10, 1918.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Action on contract; from city court of Darien—Judge Tyson. December 9, 1918.</p>

Action for slander; from city court of Hall county—Judge Wheeler. December 14, 1918. Mrs. Leith sued Carter and Mrs. Gilstrap* alleging that they conspired together to slander the plaintiff. A verdict was rendered against both defendants.

<p>1, 2. Declarations of the defendant company’s foreman in charge of the work in which the plaintiff was engaged when injured, to the effect that ,the injury was due to the breaking of a certain chain, and that he “had been after the company” for a year to furnish new chains and it would not do so, were not admissible in favor of the plaintiff as a part of the res gestee, or as admissions made by an alter ego of the defendant.</p> <p>3. The statement of the foreman, as to his request to the company to furnish new chains and the failure to do so, was not admissible on the ground that it was a part of a conversation brought out on cross-examination by the defendant’s counsel. It was disconnected from the part of the conversation thus elicited.</p> <p>4. Testimony that, after the injury, supporting pillars were put under the car whicn had fallen and injured the plaintiff was properly rejected.</p> <p>5. Under the evidence in this case it can not be held, as a matter of law, that the dangers incident to the work in which the plaintiff was engaged when injured and which he had been ordered to do by the defendant’s foreman, who knew that he was an inexperienced laborer, were so obvious as to preclude a recovery by him. Whether the car under which the plaintiff was shoveling dirt when it fell and injured him was negligently propped up, and whether the giving of the order by the foreman constituted negligence, were questions for the jury; and the court erred in granting a nonsuit.</p>

<p>Action for damages; from Cobb superior court—Judge Morris. March 10, 1919.</p>

<p>Action on insurance policy; from Bibb superior court—Judge Matbews. March 11, 1919.</p>

<p>Action for money had and received; from Pickens superior court —Judge Morris. March 10, 1919.</p>

<p>Complaint; from city court of Floyd county—Judge Nunnally. March 6, 1919.</p>

<p>Complaint; from Wilcox superior court—Judge Gower. March 29, 1919.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>1. An instrument in writing purporting to be a bilateral contract, 'as set out in the first count of the petition, wherein only one of the parties promises to perform, there being no obligation on the part of the other party, lacks mutuality and 'is a nudum pactum.</p> <p>2. The promise, however, may be regarded as an offer to contract, and when accepted before withdrawal, as set out in the second count of the petition, it becomes a binding contract, and a failure afterwards to perform the promise is a breach of the contract.</p> <p>3. Where at the time of the execution of such am instrument a bond referring to it as a “contract” and guaranteeing performance of the promise of the first party is executed, and at a subsequent time the offer of the promisor is accepted by the other party, the bond should be construed as guaranteeing the performance of the contract completed by such acceptance, and a subsequent failure to perform would constitute a breach of the bond.</p> <p>4. In a suit by a municipal corporation to recover for a breach of a bond guaranteeing the performance by a third party of a contract with the municipality, it is not necessary for the petition to allege a compliance by the city with the constitutional provision governing the creation of an indebtedness by counties and municipalities, contained in article 7, section 7, paragraph 1, of the constitution of Georgia.</p> <p>5. The present case being an action against the surety on such a bond, and it appearing that a cause of action was set out in the second count of the petition, the court did not err in overruling the demurrer.</p>

<p>Levy and claim; from city court of Yaldosta—Judge Cranford. March 21, 1919.</p>

<p>Complaint; from Tattnall superior court—Judge Sheppard. March 22, 1919.</p>

<p>Action for damages; from Bibb superior court—Judge Mathews. April 21, 1919.</p>

<p>Action for damages; from city court of Bainbridge—Judge Spooner. April 14, 1919.</p> <p>The petition alleges, that the plaintiff was a locomotive engineer on a log-train operated by the defendant; that he hauled the log-train from the defendant’s mill to the woods, and back to the mill and to the log ramp (describing it), where logs were unloaded from the train, remaining on his engine while the logs were unloaded; that the skids composing the log ramp were about eight or’ten feet'apart, and the logs hauled on the train ranged in length from thirty to sixty feet; that he had never worked at or on a log ramp, and had no experience in loading or unloading logs, and knew nothing of the dangers incident to such work; that on a certain day, because of the absence of one of the hands regularly employed to unload the logs from the train to the log ramp, the defendant ordered him to help unload the logs from the train, and he replied that he knew nothing about unloading logs, that he had noticed that some of the skids were out, and was afraid that the skidway was not safe, and that he was afraid he would be hurt if he attempted to comply with the order; that the defendant then told the plaintiff that he knew the condition of the skidway and knew that it was safe, and said, “Just fasten your cant-hook in the log, jump off, turn loose when the log starts, and duck your head, and the log will pass over and not hurt you; there is no danger; now run on and unload the logs quick, the skidway is perfectly safe;” that in compliance with this order, and acting on the assurance of the defendant that there was no danger, the plaintiff went ahead to assist the laborers in unloading the logs, and acted exactly as ordered by the defendant; that in unloading one of the logs he was at their butt end, and that the butt end, being larger than the other end, rolled faster; that as soon as the log started rolling he attempted to get out of the way, and he would have done so but for the fact that the log rolled onto a place where one of the skids had been broken, and, reaching that place, became overbalanced and fell overboard on him, causing personal injuries described. The petition further alleges, that on the day of the injury one of the skids composing the skidway had rotted and been broken out, and that the plaintiff was injured at the place where the skid had rotted out; that while he knew the skid had rotted out of the ramp, he did not know the number of skids that were necessary to sustain the logs, and did not know, and by the exercise of ordinary care could not have known, of the dangers of the skidway, and could not by the exercise of ordinary care have avoided the injury; that the defendant was familiar with the condition of the log ramp, had been unloading logs on the ramp in the condition in which it was for quite a time, and knew the dangers of the skidway. The petition charges the defendant with negligence in the following particulars: (a) in not furnishing petitioner a safe place to work; (b) in taking him from his position on the locomotive and ordering him to unload the logs with the assistance of two negroes; (c) in assuring him that the place where he was assigned to unload logs was safe and not dangerous, and that he would not be injured; (J) in ordering him to perform the work of unloading the logs after he had protested and stated to the defendant that he did not consider the skidway safe, and in assuring him that the skidway was safe and that he would not be injured; (e) in taking a man inexperienced in unloading logs, not employed for that purpose, and ordering him to unload the logs, and assuring him that it was safe to unload them in the manner and at the place stated by the defendant, when in fact it was not a safe place to work and the assurance of the defendant was untrue. The defendant demurred generally and specially, the court overruled the demurrer, and the defendant excepted.</p>

<p>Complaint; from city court of Carrollton—Judge Beall. April 7, 1919.</p>

<p>1. Any act of the creditor which increases the risk of the surety or exposes him to greater liability will discharge the latter, whether the act be done with intent to defraud him or not. The jury having found by their verdict that the notes sued on were not altered, as alleged by the surety, and therefore that the surety’s risk was not increased and he was not exposed to greater liability, the charge that an alteration which increases the risk of the surety must be made with intent to defraud, if error, was immaterial and harmless.</p> <p>2. The defendants, having in their pleas admitted that the plaintiffs had complied with all the requirements- of the statute in regard to giving 10-days notice of intention to bring suit and claim 10 per cent attorney’s fees upon the notes sued upon, cannot afterwards be heard to complain that the notice served upon them failed to properly describe the notes, by incorrectly reciting the rate of interest called for therein; or that the trial judge erroneously charged the jury to find a verdict for such attorney’s fees.</p> <p>3. Where the defendant admits a prima facie ease and sets up an affirmative defense, it is not error upon the part of the trial judge to charge the jury that the defendant must prove his defense by a preponderance of the evidence.</p> <p>i. Where certain evidence which could not in any way affect the result of the trial was admitted, it is unnecessary for this court to pass upon an assignment of error objecting to the admissibility of such evidence upon the ground that it was secondary and that the foundation for its introduction had not been laid.</p> <p>5. Where the trial judge properly charged the jury the law relative to all substantial issues made by the pleadings and the evidence, it - was not error to fail to charge on other phases of the case, in the absence of a timely request properly made.</p> <p>6. There being an issue of fact whether or not the notes sued upon had been altered after execution by the maker and the indorser, and the jury having found against such contention, and there being evidence otherwise to support the verdict, and no error of law appearing, the verdict will be sustained. There being, however, clearly a miscalculation as to the interest and attorney’s fees, the judgment is affirmed with direction that the verdict be corrected.</p>

<p>Complaint; from city court of Floyd county—Judge Nunnally. March 18,1919.</p>

<p>Action on insurance policy; from Colquitt superior court-judge Thomas. May 17, 1919.</p>

<p>Complaint; from Miller superior court—Judge Worrill. April 30, 1919.</p>

<p>Action for damages; from city court of Americus—Judge Harper. April 30, 1919.</p>

<p>Complaint; from city court of Albany—Judge Clayton Jones. May 13, 1919.</p>

<p>Action for damages; from city court of Atlanta—Judge Beid. March 27, 1919.</p> <p>Application for certiorari was denied by the Supreme Court.</p> <p>This is a suit under the Federal employer’s liability act, • instituted by Mrs. Jennie L. Williams, administratrix, and C, L. Williams, administrator, of the estate of Chester A. Williams, deceased, against the Western & Atlantic Bailroad Company, to recover for the homicide of the decedent (the son of the plaintiffs), which occurred while he was in the employ of the defendant and in the discharge of his duties, his death having been occasioned by the wrecking of a building, brought about by the alleged explosion of escaping- gas from a gasoline engine belonging to the defendant. The explosion and the decedent’s death occurred on January 25, 1912. The suit was-filed more than two years thereafter (January 24, 1917), but within two years after the appointment of the plaintiffs (September 29,1915) as representatives of the decedent’s estate. The petition was demurred to, on the ground that the suit was barred, since it is provided in the act under which the action arose that "No action shall be maintained under this act unless» commenced within two years from the day the cause of action accrued.” The demurrer was overruled and the defendant filed exceptions pendente lite. The case proceeded to trial and resulted in a nonsuit. The plaintiff in the main bill of exceptions excepts to the granting of a nonsuit, while the defendant, in a cross-bill of exceptions, excepts to the overruling of its demurrer, both general and special.</p>

(Certiorari was granted by the Supreme Court.) Validation of county bonds; from Berrien superior court—Judge Thomas. July 5, 1919. The State of Georgia filed a petition against Berrien county, praying that the county show cause why an issue of $500,000 “road bonds,” alleged to have been duly authorized by the voters of the county, should not be confirmed and validated.

<p>1. A fraternal beneficial order, by the adoption of amendments to its constitution or by-laws, cannot defeat or abridge essential and substantial rights created by a covenant previously entered into in a certificate of insurance issued by it. And this is true despite the covenant holder’s agreement to a stipulation in the covenant that the certificate was accepted by him subject to the laws of the order then of force or which might, thereafter be enacted.</p> <p>2. A provision in the certificate that a certain proportionate part of the value of the covenant will be paid to the assured as an accident benefit creates an essential and substantial right in the assured; and a reduction of this benefit by a subsequent change in the constitution or bylaws of the order is such a material change in the certificate as defeats or abridges this right.</p> <p>3. Though a member of an order, in his original covenant or certificate, agrees to be bound by future changes in the by-laws, an alteration made subsequently to issuance of the covenant will be given a prospective operation, in the absence of a clear intent that it shall operate retrospectively.</p> <p>4. The judge of the superior court did not err in overruling the certiorari.</p>

<p>Action on insurance policy; from Fulton superior court—Judge Pendleton. October 16, 1919.</p>

<p>Action for deceit; from Bartow superior court—Judge Tarver. September 37, 1919.</p>

Complaint; from Fayette superior court—Judge Searcy. October 23* 1919. Haynes-Henson Shoe Company sued Brown & Brown for a balance alleged to be due on an open account. The defendants admitted that they owed the account, but pleaded that they were entitled to damages in the snm of $320 for the breach of an alleged contract for the sale of goods amounting to $800, ordered of by them through one Buchanan, a traveling salesman of the plaintiff.

<p>Certiorari; from Fulton superior court—Judge Pendleton. September 25, 1919.</p>

<p>Complaint; from city court of Springfield—Judge Shearouse. June 14, 1918. ■</p>

<p>Certiorari; from Fannin superior court—Judge Morris. May 31, 1918.</p>

<p>Complaint; from Coweta superior court—Judge Terrell. July 6, 1918.</p> <p>The case came to this court on exceptions to the overruling of a demurrer in which it was contended that the action was barred by the statute of limitations. The Court of Appeals certified to the Supreme Court the following question: “Under section 3798 of the Civil Code, providing that in certain kinds of cases 'all railroad companies shall be sued in the county in which the cause of action originated/ and that 'any judgment rendered in any other county than the one in which the cause so originated shall be utterly void/ and in view of the decision in the case of Atlanta, Knoxville & Northern Railway Go. v. Wilson, 119 Ga. 783 [47 S. E. 366], was the entire proceeding in a ease to which these provisions applied, and in which the Supreme Court held that 'the petition shows upon its face that the courts of Coweta county alone had jurisdiction of this suit, and that the superior court of Eulton county did not have jurisdiction/ and 'it should have been dismissed upon general demurrer’ (145 Ga. 850 [90 S. E. 63], so utterly void as to prevent renewal of the action within six months, so that the renewed case should stahd upon the same footing, as to limitation, with the original case, as provided in section 4381 of the Civil Code, where the losing party dismissed his case before the remittitur from the Supreme Court was made the judgment of the court below?” *</p> <p>The headnote of the answer of the Supreme Court is as follows: “Where suit was brought against a railroad company to recover damages for a tort committed in another county in this State, and was dismissed by the plaintiff after the rendition of a decision by this court, holding that the court of the county in which the suit was brought had no jurisdiction of the case, the suit might be brought again within six months of the dismissal in the county in which the cause of action originated, although the bar of the statute of limitations would attach but for the pendency of the first suit.” For the opinion of the Supreme Court in full, see 150 Ga. (103 S. E. 436).</p>

<p>Action for damages; from Cobb superior court—Judge Morris. December 1, 1917.</p> <p>Application for certiorari was denied by tbe Supreme Court. This action was brought under'the Federal “employer’s liability act.” The plaintiff was an “extra gang foreman” in charge of men employed by the railroad company to repair its track and keep the roadbed and the track in proper condition for the passage of trains. He was riding on a handcar with other employees, on his way to repair a part of the track, when the car, on rounding a curve of the road, was derailed by slag and stones on the track and which had fallen from where they had been piled up near it for use in ballasting the roadbed, and he received personal injuries, which he alleged were due to negligence of the railroad company in placing this ballast there and in piling it up in such a way that it was liable to fall on the rails as it did. The defendant in its answer denied the alleged negligence, and pleaded that the plaintiff himself was negligent, and that he assumed the risk of injury from the placing of the ballast in the manner alleged. The trial of the case resulted in a verdict for damages, and, the defendant’s motion for a new trial being overruled, it excepted.</p> <p>Parts of the plaintiff’s testimony were as follows: “I could see the slag before I got to it. As far as seeing it was concerned, it was all along there; we had to contend with that every minute we were running. I knew all the time that that was the condition we worked under. I knew that it was the way we unloaded stuff several times. . . That was the common condition; looking at it, you understand. . . Going around that curve I saw this condition ahead of me. I seen the stuff piled up on the outside of the rail ahead of me. . . My car continued at the rate of about 10 miles. . . I said a pebble about as big as your thumb, or something of that sort, would derail the wheel. I don’t know how large that was we ran over. The cause of the derailment was this stuff falling down on the track. . . The matter of protecting the handcar is one of the duties of the foreman. . . The section foremen are the men of all other men whose duty it is to have a safe roadbed for the trains to go back and forth over. The company has to look to them to do iti . .1 had four men on the car, going about 10 miles an hour around the curve, and did not send a flagman around the curve. . . It is my duty to flag around all dangerous places. I was in charge of my lever ear there and in control of it. The men on it were subject to my orders. I could tell them to slow down, and it was their duty to do it. . . I had railroaded for 35 to 40 years in all capacities almost. . . When a foreman, extra gang man, or ordinary foreman goes out on the railroad track it is his duty to be on the lookout for any and all sorts of defects. He carries the eyes of the railroad company, so far as finding defects. . When I started out it was as much my business and as much my duty to be looking out for spikes that might be loose or any sort of defects that might exist in the track as well as it was [for looking out] for the bucked track. That was true not only on that particular trip, but it was true all the time. . . I didn’t know just where the bucked track was, but it a fact that it usually bucks on curves. . . I had not gotten to the bucked track when my lever car was derailed. . . I knew that the shaking and running of trains would cause it [the slag] to fall down. . . I knew that two trains had come over this track about a couple of hours before that. . . The passenger train had just come over this same piece of track. . . It was immediately after these trains passed that I left Hombre to go out on my lever ear. . . Yes; it is also true they run extra trains up there on that road. They get up a train of coal cars and send them off down to the mines to be loaded extra; and I wouldn’t know what minute they might come on me. . . This railroad is not very old. . . I forget the age of if. . . There was a great deal to do to bring it up to wbat railroad men call a standard or good railroad.”</p>

<p>“All building and loan associations, and other like associations doing business in this State (and the term ‘other like associations’ shall include a corporation organized to do a general savings and loan business, and among other things lending its funds to members of the industrial and working classes, or others, and secured in whole or in part by personal endorsements and its own fully paid or installment stock, or its own fully paid or installment certificates of indebtedness, or other personal property) are authorized to lend money to persons not members thereof, nor shareholders therein, at eight per cent, or less, and to aggregate the principal and interest at the date of the loan for the entire period of the loan, and to divide the sum of the principal and the interest for the entire period of the loan into monthly or othdr installments, and to take security by mortgage with waiver of exemption, or title, or both, upon and to real estate situated in the county in which said building and loan association may be located; and such building and loan association shall be construed to be located in any county wherein it has an office, agent, or resident correspondent: Provided, however, and nevertheless, the associations referred to and as defined herein shall not be compelled to lend their funds exclusively in the manner hereinbefore specified, but in addition thereto also have authority to make loans to members of the industrial and working classes and to all other persons, due at fixed intervals not exceeding twelve months, and secured in whole or in part by personal endorsements and by its own fully paid stock, or stock payable on the installment plan, certificates of indebtedness, fully paid or payable on the installment plan, or both endorsements and such securities, or other personal security and ehoses in action, and on such loans so made and secured as aforesaid it shall be lawful to deduct interest in advance, but not to exceed eight per cent, discount, and the installment payments, if any, made on such hypothecated stock or certificates of indebtedness during the time the loan is of force may or may not bear interest, >t the option of the association, and the taking of said installment payments on said hypothecated stock, certificates of indebtedness, choses in action, or other evidences of indebtedness shall not be deemed usurious.” Civil Code (1910), § 2878, as amended by the act of 1910 (Ga. L. 1910, p. 55) and the act of 1913 (Ga. L. 1913, p. 54). See Park’s Ann. Code, § 2878.</p> <p>(») “Under the provisions of the charter, constitution and by-laws of the Atlanta Loan and Saving Company, set forth in connection with the questions propounded by the Court of Appeals, that company is ‘a like association’ within the meaning of the act of 1913, which was an act to amend section 2878 of the Code of 1910.</p> <p>2. “The act of 1913 referred to above is a general law, and does not fail of effect because the company’s charter antedated it and was never amended for the purpose of adopting the privileges it offers.” Atlanta Loan <& Savings Oo. v. Norton, 149 Ga. 805 (102 S. E. 536).</p> <p>3. Under the foregoing rulings and the facts of the instant case the trial judge erred in finding' for the plaintiff in his suit to recover from the defendant company an amount paid by him to it and alleged to be an usurious interest charge; and the judge of the superior court erred . in overruling the certiorari.</p>

<p>Certiorari; from Chatham superior court—Judge Meldrim. December 20, 1918.</p>

<p>Accusation of misdemeanor; from Warren superior court— Judge Walker. March 10, 1919.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Indictment for manufacture of intoxicating liquor; from Putnam superior court—Judge Park. February 11, 1919.</p>

<p>Motion to distribute funds; from city court of Blackshear— Judge Mitchell. June 16, 1919.</p>

<p>1. “It is well settled that the rule that an undisclosed principal shall stand liable for the contract of his agent has no application to a contract under seal.”</p> <p>2. To recover the penalty for failure of a railroad company to build and maintain good and sufficient cattle-guards as provided for in the Civil Code (1910), §§ 2699, 2700, the plaintiff’s petition must allege such facts as bring it within the provisions of this law.</p> <p>3. The court properly sustained the demurrers of the plaintiff’s petition as amended and dismissed it.</p>

<p>1. The court did not err in refusing to give to the jury certain requested instructions as to the burden of proof, | as the charge given covered substantially the principle embraced in the request.</p> <p>2. There is nothing in the record or in the amount of the verdict to indicate that the verdict was the result of prejudice or bias on the part of the jury.</p> <p>3. Eor no reason assigned did the court err in permitting the plaintiff “to make physical demonstration of her alleged injury.”</p> <p>4. The court did not err in admitting in evidence the “Carlisle Mortality Table,” over the objections that it was irrelevant, that there was no allegation or proof of permanent injury to the plaintiff, or of reduced earning capacity, and no proof of the value of her services.</p> <p>5. None of the objections urged as to the excerpt from the charge of the court in reference to compensation for future pain and suffering are good.</p> <p>6. There is evidence to support the verdict.</p>

<p>Under the petition in this case, the child alleged to have been injured cannot be treated as a trespasser, and the case must turn upon whether the defendant was negligent as alleged in the petition. Questions of negligence are peculiarly for determination by the jury, and the judge erred in dismissing the petition on general demurrer.</p>

<p>Under the facts of this ease the term of court in which the case was tried had expired before the motion for a new trial was made, and the motion was properly dismissed.</p>

(Certioraji was granted by the Supreme Court.) Complaint; from city court of Eloyd county—Judge Nunnally. September 2, 1919. The petition of J. Z. Salmon against Eloyd County, as amended, alleges, in substance: The petitioner is the duly elected and qualiled tax-receiver for Eloyd county for a term of four years beginning January 1, 1917.

<p>Appeal; from Cherokee superior court—George D. Anderson, Judge pro hac vice. September 13, 1919.</p>

<p>Action for damages; from city court of Monroe—Judge Stone. September 18, 1919.</p>

<p>No cause of action against the city was shown by the allegations upon which it was sought to recover for alleged negligence of the city’s employee in changing transformers by which the city furnished electricity to a motor that the plaintiff was connecting with an elevator in a building when injured. The court did not err in sustaining the general demurrer to the petition.</p>

<p>Indictment for larceny from house; from Eulton superior court —Judge Humphries. October 25, 1919.</p>

<p>Motion to dismiss writ of error.</p>

<p>Conviction of driving automobile while under the influence of liquor—certiorari; from Morgan superior court—Judge Park. October 2, 1919.</p>

<p>Complaint; from Effingham superior court—Judge Lovett. October 20, 1919.</p> <p>Gillespie sued Jarrell on a promissory note. The defendant pleaded that the note “was procured by legal fraud,” in this: The plaintiff advertised that he was making loans to farmers on their lands, and the defendant applied for a loan upon his lands. The plaintiff “assured him that he would procure the loan, but stated that, in order to procure said loan, defendant should apply for and secure a life-insurance policy.” The defendant stated that he did not desire more insurance, as he had ¿11 he was able to pay for, but after being assured that the best way to secure the loan was to take out the policy, and being told that he need not pay any money, but could pay the premium out of the loan which the plaintiff would secure for him, he assented, solely upon this representation, and he paid the plaintiff $20 to have an appraisement made of his farm, as a preliminary to securing the loan. The plaintiff put him off with promises from time to time until the insurance policy was ready for delivery, at which time the plaintiff asked that he give a sixty-days note for the premium, and stated that it could be paid out of the loan. He gave this note solely to obtain the loan, and not because he desired insurance. The plaintiff put him off until the note matured, and then urged him to renew the note, still leading him to believe that the loan would be forthcoming. Two days before the renewal note became due, t’- plaintiff wrote a letter to him, from which he became satisfied that it was useless to waste more time on the plaintiff, and he therefore declined to pay the note. As he had had the policy for about four months, he offered to return it and to pay to the plaintiff the pro rata part of the premium for the time he had been covered, but the plaintiff declined to accept this, and sought to force him to pay what he believes to be a void note, because the consideration therefor has totally failed.</p> <p>At the trial testimony was introduced in support of this plea. The plaintiff testified that he applied for a loan of $5,000, that his property was afterwards appraised at $8,050, and the plaintiff told him he could get $3,000, and he said he would accept that. “I reckon he (the plaintiff) was trying to get it all the time; he wrote me so.” A letter from the plaintiff to the defendant, dated two days before the note sued on fell due, said, “relative to your loan, I have made every effort to get this, and am still trying to do so, but I thirds: it hardly possible to obtain the amount you desire, as the appraisers do not seem to place a value on your place as you do.”</p> <p>The trial judge, at the time of directing the verdict in favor of the plaintiff, said: “An agreement that an unconditional promissory note was never to be paid, or was to be paid only on the happening of an uncertain event in the future, not integrated in the note, would certainly alter the terms of the instrument, and would alter the rule of parol evidence in Georgia. In the absence of a plea of fraud, such evidence could never be considered. In this case there is a plea which the pleader denominates one of fraud, but in the opinion of the court the facts sufficiently well pleaded do not constitute fraud against which a court will relieve.' In order for the facts, as developed on the trial, to constitute such fraud as would entitle the plaintiff to relief, it must appear that there was some misrepresentation of fact, that the misrepresentation was a material one, and that it was acted upon by the opposite party. Generally these misrepresentations must relate to a present or existing fact, for misrepresentations as to future facts are themselves uncertain, as all things in the future are speculative and more or less subject to change. The only thing, as the court sees this case, that it can be fairly said that the plaintiff misrepresented was his ability to procure a real-estate loan for the defendant. That related to a future fact, and all the facts, construed together, show a reasonable effort on the part of the plaintiff to obtain the loan, and the mere fact that he may have failed to obtain the loan could not, under any circumstances, create a presumption of fraud.”</p>

<p>Complaint; from Marion superior court—Judge Howard. October 27, 1919.</p>

<p>Complaint; from city court of Americus—Judge Harper. October 22, 1919.</p> <p>The suit was for a sum alleged to be due as a commission on the sale of certain land. The writing referred to in the decision was as follows: “Americus, Ga., March 24, 1917. I hereby agree to place with P. B. Williford and T. B. Westbrook, and make them sole agents for a term of six months, the following property for sale, and if the same is sold by them, directly or indirectly, or by myself, I agree to pay them a commission of 5%, provided sale is made by Sept. 1st, 1917. Schedule of farm property: 643 acres at $20.00 per acre, in 26th district Sumter county, Ga. Lot No.acres in cultivation,-acres in woods. Signed: F. W. Griffin.” The petition alleges, that the defendant, F. W. Griffin, is indebted to the plaintiff, T. B. Westbrook, in the sum of $646, by reason of the following facts: On May (?) 24,1917, the defendant employed the plaintiff and P. B. Williford, who were then engaged in the business of real-estate brokers, to sell for the defendant certain lands of the defendant, being 643 acres known as “the Griffin place,” situated in the 26th district of Sumter county,' Georgia, composed in part of lots of land Number 171, 172, and 173, agreeing with the plaintiff and said Williford, in consideration of their engaging to sell said land, if said land should be sold by them, directly or indirectly, or by the defendant, he was to pay them a commission of 5%, provided the sale should be made on or before September 1st, 1917; the price at which the plaintiff and Williford were authorized to sell said land was $20 per acre, and they should have the sole right of selling the land during the term of six months from the date of the employment. The plaintiff and Williford accepted said employment on the terms made, and undertook to sell said land under the terms indicated. Among those to whom they undertook to sell the land was J. E. D. Shipp. The defendant, in June, 1917, while the said contract and agreement was in force, sold the said land to said Shipp at a price less than $20 per acre; the exact amount the plaintiff is not advised of. The sale has been consummated and possession of the land has been delivered to the said Shipp. After this sale the plaintiff and Williford made a demand on the defendant for the commissions due under the terms of said employment, the defendant having sold the land to their customer; but the defendant declined to make a settlement with them. The said Williford, on June 21, 1917, assigned in writing his rights to the commissions under the said contract of employment to the plaintiff, and by reason of said assignment the plaintiff is entitled to recover of-the defendant the said sum of $646. A memorandum of said contract of employment was reduced to writing, though not intended to speak the whole contract. A copy of said memorandum is attached to the petition. On the paper here referred to is an assignment as follows: “For value received, I hereby transfer to T. B. "Westbrook any and all rights I may have under and by virtue of this contract, and he is hereby authorized to collect all commissions due thereon. June 21st, 1917. P. B. Williford.”</p> <p>The demurrer was on the following grounds: (1) The petition does not clearly, fully, and distinctly set forth a cause of action. (2) The plaintiff states that there was an oral contract, and attaches to the petition a written contract; hence he can not recover on the oral contract set forth. (3) The plaintiff sues on an oral contract and sets out what he calls a memorandum of a contract in writing with P. B. Williford and T. B. Westbrook, and it is this memorandum that is alleged to have been transferred by Williford to Westbrook; therefore the plaintiff fails to show any right to recover on the contract sued on in his own name. (4) There is a misjoinder of parties plaintiff, it being alleged in the petition that the contract was made with Williford and Westbrook, and no legal assignment of the contract being set out. (5) There is no sufficient description of the property, and the contract is therefore void. (6) Paragraph 2 (which states the contract) is demurred to on the ground that the description therein set out is too indefinite and vague to be the basis of a recovery. (7) The allegation as to the sale to Shipp is demurred to, and it is asked that the exact date of the sale be set out. The court adjudged that “said demurrer” be sustained and the case be dismissed.</p>

<p>Complaint; from city court of Eastman—Judge Enox presiding. September SO, 1919.</p>

<p>A verdict of guilty of “attempt to make liquor,” where the indictment charged that the defendant “did'unlawfully distil, manufacture, and make spirituous liquors, malted liquors, mixed liquors and beverages, a part of which is alcoholic,” was not subject to attack by motion in arrest of judgment, on the ground that the defendant was found guilty “not of the offense charged, but of attempt to distil,” and that there was no such offense under the law of this State.</p>

<p>The allegation that the judgment rendered by the mayor was “contrary to law and unauthorized by the charter of the Town of Gibson” was too indefinite and presented no question for adjudication.</p> <p>The alleged excessiveness of the sentence infposed by the mayor was no ground for the grant of a new trial on certiorari.</p> <p>The petitioner for certiorari did not comply with all the conditions precedent to the sanction of a certiorari.</p> <p>The court did not err in “overruling and dismissing” the certiorari.</p>

<p>Certiorari; from Glascock superior court—Judge Walker. September 37, 1919.</p>

<p>Complaint; from Turner superior court—Judge Eve. September 1, 1919.</p>

<p>Certiorari; from Fulton superior court—Judge Pendleton. September 22, 1919.</p>