Volume 25 — Georgia Appellate Reports

<p>Indictment for misdemeanor; from Cobb superior court — Judge Morris. December 9, 1919.</p>

<p>Where in an action for damages on account of the closing of ways of entrance to certain lands by the construction of a railroad it appeared, from evidence of the plaintiffs, that the passageway closed was not a private way or public road as defined by law, and that there was still a way to cross the railroad and reach the lands of the plaintiffs, though not as convenient as the one closed, and that in condemnation proceedings before the railroad was built, damages as to the same lands were assessed in favor of the plaintiffs against the railroad company, the court did not err in granting a nonsuit.</p>

<p>Certiorari; from Chatham superior court — Juclge Meldrim. September 26, 1919.</p>

<p>Accusation of misdemeanor; from city court of Oglethorpe — Judge Greer. November 3, 1919.</p>

<p>Conviction of manufacture of intoxicating liquor; from Haralson superior court — Judge Irwin. October 7, 1919.</p>

<p>1. That the accused had not been tried at the first or the second term of the court after demand for trial was not ground for discharging him, under the facts appearing in the record.</p> <p>2. Eailure to charge the jury on the law as to circumstantial evidence was not ground for a new trial, under the facts of the ease.</p> <p>3. Prejudicial remarks of the court in the presence and hearing of the jury are not ground for a new trial, unless a motion to declare a mistrial on that ground has been made and refused.</p>

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

<p>Conviction of manslaughter; from Marion superior court — Judge Howard. November 15, 1919.</p>

<p>In view of the evidence and the issues in this case, the court, whether so requested to do or not, should have charged the jury to the effect that if no conspiracy or concert of action between the defendants was shown by the evidence, each would, be responsible only for wounds inflicted by himself, and if the evidence showed that only one of them killed the person with whose homicide they were charged, only that one could be found guilty. Failure to give such a charge requires that a new trial be granted.</p>

<p>Failure to charge the jury that the burden of proof was on the State, to satisfy their minds, beyond a reasonable doubt, of the guilt of the defendant as charged, was ground for a new trial.</p>

<p>Complaint; from city court of Nashville — Judge Lovett. August 2, 1919.</p>

<p>Complaint; from Chatham superior court — Judge Meldrim. August 6, 1919.</p>

<p>Appeal; from Taliaferro superior court — Judge Walker- August 27, 1919.</p>

<p>Petition for certiorari; from Camden superior court — Judge Highsmith. September 13, 1919.</p>

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

<p>Certiorari; from Muscogee superior court — Judge Howard. September 20, 1919.</p>

<p>Indictment for misdemeanor; from Terrell superior court — Judge Worrill. October 4, 1919.</p>

<p>Conviction of manslaughter; from Bibb superior court — Judge Mathews. September 30, 1919.</p>

<p>Indictment for burglary; from Fulton superior court — Judge Humphreys. September 27, 1919.</p>

<p>Action for damages; from city court of Amerieus-—■ Judge Harper. October 30, 1919.</p>

<p>Trover; from city court of Macon — Judge Guerry. September 19, 1919.</p>

<p>Trover; from city court of Camilla — Judge Burson. September 26, 1919.</p>

<p>Action on guaranty; from Jasper superior court — Judge Park. November 10, 1919.</p>

<p>Trover; from city court-of Dublin — Judge Elynt. November 17, 1919.</p>

<p>Accusations of possession of liquor; from Fannin superior court - - Judge Morris. November 1, 1919.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Appeal; from Cobb sujierior court — Judge Morris. October 6, 1919.</p>

<p>Complaint; from Gilmer superior court — Judge Morris. October 14,1919.</p>

<p>Action on fire-insurance policy; from Liberty superior court — Judge Sheppard. October 25, 1919.</p> <p>After the issuance of the fire-insurance policy sued on, the insured executed a deed by which title to the insured house was conveyed as security for a debt. Subsequently the house was burned. The policy contained provisions identical with those set out in the decision in the case of Athens Mutual Insurance Co. v. Evans, supra. No written consent to the conveyance was given on the part of the insurance company, and the company contended that for this reason the policy was void. The court refused to allow the plaintiff to prove that after the conveyance was made he went to the agent who had issued the policy, and who was authorized to endorse thereon the defendant’s consent to the conveyance, and informed him orally of the making of the conveyance, and the agent said to him, “All right, go on home, I will take care of that; that is my part of the job;” and that to the best of his recollection the agent said that some time when he was passing through there he “would stop and take the policy and make the necessary endorsement on it.” This ruling was complained of in the motion for a new trial.</p>

<p>Trover; from city court of Tifton—Judge Price. November 13, 1919.</p>

<p>Action of slander; from Fulton superior court—■ Judge Pendleton. November 11, 1919.</p> <p>Application for certiorari ivas denied by the Supreme Court.</p>

<p>Action on insurance policy; from Fulton superior court — Judge Pendleton. September 29, 1919.</p>

<p>Action fox damages; from city court of Atlanta—■ Judge Reid. October 21, 1919.</p>

<p>Complaint; from Kabun superior court—Judge J. B. Jones. November 10, 1919.</p>

<p>Indictment for burglary; from Franklin superior court •— Judge W. L. Hodges. November 29, 1919.</p>

<p>Indictment for burglary; from Marion superior court —Judge Howard. November 7, 1919.</p>

<p>Indictment for car-breaking; from Fulton superior court—Judge Ilumpliries. November 15, 1919.</p> <p>Application for certiorari was denied by tlxo Supreme Court.</p>

<p>Indictment for assault witli intent to rape; from Floyd superior court — Judge Wright. November 14, 1919.</p> <p>Under an indictment charging assault with intent to rape, the defendant was convicted of an assault. A witness for the State testified that the defendant was “apparently 13 or 14 years of ag'e;” also that he was “14 or 15 years old.” Another witness testified that she knew when he was born, and that he was only 12 years old. It was testified that the girl upon whom it was alleged the assault was committed was 12 years old. She testified: “After I had left school and gone up and through town and just gotten by the depot at Cave Spring and some hundred yards by the depot,-this boy was tying a cow which he had been holding, picking grass, and got down behind a pile of coal at the railroad tracks and stuck his head up and said to me, ‘Here, give me some. When I saw him behind the coal I started to run down the path, the way I was going home, an 1 he started to run after me, and I said T see daddy/ thinking he would stop, and lie ran after me through, the field. I showed father how far he went. Tony Pitts ran after me, and I looked back and he was gaining on me, and he did not stop until I screamed. There were stores in sight of the place, and people walk along in the path in which I was walking, almost all times through the day. After leaving the place where this occurred, in order to go to my home you go through the woods to where I live. I have often seen this boy minding the cow he had this day. He lives near where he had the cow and just on the edge of town, but I live on out in the country from town.” It was testified that this witness showed where the defendant ran her through the field, and that the distance was 187 yards. The defendant, in his statement at the trial, said: "I was minding the cow the day this happened, and then went and tied her. After I did this I then ran on down to the path and stalled on home in the path, and this little girl saw me and got to crying and ran on off. I did not know what was the matter with her, but she went on towards her home and I went on home and never knew anything further until they arrested me. I never thought of hurting the little girl.” There was no further testimony as to what was done by the defendant at the time referred to.</p>

<p>Conviction of manslaughter; from Warren superior court — Judge Walker. November 28, 1919.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Motion to change venue; from Bleckley superior court — Judge Graham. January 22, 1920.</p>

<p>Affidavit of illegality; from city court of Statesboro — Judge Proctor. October 17, 1919.</p>

<p>Accusation of carrying concealed weapon, etc.; from city court of Macon — Judge Guerry. November 22, 1919.</p>

<p>Certiorari; from Chatham superior court'—■ Judge Meldrim. October 20,1919.</p>

<p>All agreements to pay in specifics being presumed to be made in favor of the debtor,' he has the option of paying either in specifics or in money amounting to the value of the specifics; and ordinarily this value will be their market value at the time of the maturity of the obligation. However, where it appears from the agreement that it was the intent of the parties thereto that the debt should be paid in specifics on the basis of a certain fixed money value thereof, irrespective of their market value on the date of the maturity of the obligation. then the debtor has the right to pay, in lieu of the specific articles called for, their money value on the basis fixed in the agreement.</p>

<p>Indictment ior possession of liquor; from Cobb superior court — Judge Morris. November 29, 1919.</p>

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

<p>Action for damages; from city court of Atlanta — Judge Eeid. June 14, 1919.</p>

<p>Action for damages; from Richmond superior court — Judge Henry C. Hammond. ' June 14, 1919.</p>

<p>Trover; from Pulaski superior court—Judge Graham. June 21, 1919.</p>

<p>Levy and claim; from city court of Carrollton — Judge Beall. June 23, 1919.</p>

<p>Action for damages; from city court of Savannah — Judge Freeman. May 27, 1919.</p> <p>W. J. Quinan sued the Standard Fuel Supply Company, a corporation, for damages on account of personal 'injuries, alleged to have been caused by negligence of one Powers, who it was alleged was the vice-principal and alter ego of the defendant, and the negligence of others working under his orders. It appears -that the plaintiff was an employee of the American International Shipbuilding Corporation, and at the time of the injury was engaged in checking certain piling which that company had contracted with the defendant to unload from cars, the alleged improper and negligent unloading of which the plaintiff contends caused the injury. The defendant contended that Powers, its alleged vice-principal, was not in fact such, but was an independent contractor on the work and in the exercise of an independent business, and was not subject to the immediate direction or control of the defendant, and therefore that the defendant was not liable for negligence on the part of Powers or his servants. Upon this issue the following evidence was introduced: The plaintiff testified : “Mr. Powers was looking after the work there as foreman for the Standard Fuel Supply Company. The contract was taken away from Eamsey and given to the Standard Fuel Supply Company and Mr. Powers came there as foreman of the job. The men were working under his direction. . . The Standard Fuel Supply Company were doing this work. I knew Mr. Powers was in charge as their foreman. I knew Powers was foreman because Mr. Eoss, chief in charge of the American International Shipbuilding Corporation that I reported to, he told me the Standard Fuel Supply Company had taken over the contract. The darkies were all under his direction. He was the man who gave them directions. Mr. Salas [president of the defendant company] visited the dock two or three times a day and conferred with Mr. Powers. Mr. Salas was not giving the darkies any directions. I never saw Mr. Salas give anybody instructions. Mr. Powers was the only man giving instructions to men on that particular work. . . I knew Mr. Powers as a wharf builder and contractor all my life. I knew he had taken other jobs for Mr. Salas, and that he had taken jobs for himself. I know the relations between them by the pay-roll of the Standard Fuel Supply Company showing Mr. Powers as their foreman. I did not know so definitely at the time. I knew Mr. Powers was in control of the work, but I was not told that the contract was turned over to Mr. Powers, but to the Standard Fuel Supply Company.” W. II. Patterson Jr. testified: “I was with the government. . . That is my signature to a contract between the government and Mr. Salas for unloading this piling and loading the vessel. Mr. Powers was down there as Mr. Salas’ foreman, and when I had any instructions for Mr. Powers, I was compelled to communicate them through Mr. Salas. When I went to him he would say ‘Tell Mr. Salas and he will tell me.’ I knew Mr. Powers in the contract as Mr. Salas’ foreman. I made this contract on behalf of the United States Shipping Board with the Standard Fuel Supply Company. I knew Mr. Powers was in charge of the work. I saw him there every day. I knew nothing about the arrangement between him and Mr. Salas except as stated in the bill. My information is that he was not an independent contractor. I. don’t know the arrangement between them for doing this work. I knew nothing about their private arrangement. Mr. Powers actually directed the work. I had no contract with Mr. Powers. I know absolutely nothing about the contract or relation between Mr. Salas and Mr. Powers. I have known Mr. Powers probably twenty-five years. I have known him as a contractor. When I would approach Mr. Powers he would tell me to see Mr. Salas. Mr. Salas told me nothing about the arrangement. . . I had supposed Mr. Powers was foreman at all times. If the contention is that Mr. Powers was doing the work as a subcontractor, I see no reason why they should put him down as foreman. . . This bill was rendered by the Standard Fuel Supply Company. I 0. K.’d that bill as correct according to his say so. . . This contract provides for compensation to the Standard Fuel Supply Compa-at $1.37% a piling by the piece. . . This bill for 2,000 or 1,800 represents Sunday work. The Standard billed us for $1.37% plus one-half of that, and I objected to it. I told him I wanted the bill based on the actual cost of the labor. I paid the Standard for it. It was charged for at the rate of $12 a day, but that was after the work was over. . . I don’t think he [Powers] would be put down as foreman if he- was a subcontractor. If he was put down as subcontractor I don’t suppose his time would have been paid for, but they might have used some other method. I have no interest in it at all. I am speaking of the bill in black and white. I understood Mr. Powers as foreman, first, last, and all the time. If I thought the work was not going fast enough, or wanted a little extra work done, and if Mr. Salas happened to be in New York, I had to wait to see him. Mr. Salas did not give any orders within my hearing as to the mechanical details, as to how the work should be done. When he came there I was not with him. When I complained about the work not being fast enough, Mr. Powers would tell me to see Mr. Salas.” The plaintiff introduced in evidence the contract between the defendant and the United States Shipping Board, and a bill rendered by the defendant to. the American International Shipbuilding Corporation for work performed on Sunday, containing an item as follows:</p> <p>“D. Power, foreman, two Sundays at $12.00, $24.00.”</p> <p>David Powers,, in behalf of the defendant, testified: “I am pile-driver, wharf builder, and sometime stevedore. I have been in business for myself some twenty-one or twenty-two years. I recall this particular contract under which I was working at this dock with Mr. Salas. The contract was that Mr. Salas would furnish the money and two big lighters, I to furnish everything else, on a fifty-fifty basis, I to get half the profits and bear half the losses if any. I employed the men. I discharged them. The Standard Fuel Supply Company didn’t have a thing to do with that. All correspondence was done with Mr. Salas, Standard Fuel Supply Company. I paid the men off on Saturday, either at the dock or at Tom Curry’s. They did not state who I was to hire or discharge; I had full right of way on that. On this bill on which I am put down as foreman I did not get that money. I have not settled up on this case yet. I am to get one-half. We worked on a fifty-fifty basis. . . I am not Mr. Salas’ foreman. I never -was his foreman in any of this work ■—• that’s according to my contention. At no time was I foreman from the time I took this subcontract with the Standard Fuel Supply Company up to the time this man wras hurt, except it was stated on that bill. I ought to have something for my services. He billed the government per piling first, and they objected to that, and said to send in actual labor. He put me in as foreman. . . He told me that he was going to furnish the money and turn the balance over to me. He had nothing to do with anything else. We did things for Mr. Patterson until I found him undermining me with another stevedore, and after that I says, ‘Mr. Patterson, you go to Mr. Salas — he is the boss of this proposition.’ He was fixing up that I was not competent, and wanted 'to get somebody else. I did that after I found him out.” E. S. Salas, sworn in behalf of the defendant, testified: “I am president of the Standard Fuel Supply Company. I made this contract with the Hnited States Shipping Board. . . I talked with Powers, and he said he would take the job on a fifty-fifty basis. He has been in the contracting business for twenty years to my knowledge. Not in years has he been foreman for me. He has done joint contract work of this kind. Hnder the contract I furnished two lighters and the money. I had nothing to do with the employment or discharging of the men. I had nothing to do with the actual work. I went there once or twice a day to keep Patterson straight. He was very contentious. It was the only way to keep the bill correct for the government to put him in as foreman on Sunday. They would not work on Sundays for the wages they got every day in the week. There was no way except to charge for every man actually engaged on the work. Mr. Powers was one of the men. Our contract calls for fifty-fifty, and that goes into the general fund of the earnings and losses of the transaction—-it was absolutely fifty-fifty. Powers was to get half the profits and bear half the losses. He was a partner of mine. .1 financed and let him have the two lighters. . . I had to put him on there as foreman. I could not get pay for his work on Sunday otherwise. How could I do otherwise? How am I going to let men work' there and not charge for it? It was a verbal agreement for Sunday work; this was extra work. That contract is for week-day work-—'there is nothing in there about it.- The Shipping Board called for Sunday work. They said, ‘We will pay you for all men working there Sundays.’ I made the contract with Patterson — United States Shipping Board. . . The contract was based on</p> <p>the piling and this was based on the work. That contract did not cover Sunday work. Patterson said, ‘The only way I will settle is per hour for each man.’ ”</p> <p>At the close of the evidence the court directed a verdict in favor of the defendant, on its motion based upon the ground that the evidence showed that the injury in question was inflicted by an independent contractor and the defendant was not liable.</p>

Action for damages; from city court of Bichmond county — Judge Black. July 30, 1919. The petition of Cummings against the Southern Express Company alleged, in substance: On September 19, 1917, the plaintiff was in the employ of the Union Station Company in the City of Augusta, as truckman for unloading baggage from incoming trains and loading baggage on outgoing trains.

<p>Complaint; from Grady superior court-—Judge Harrell. June 25, 1919.</p> <p>The Higdon Trading Company, a corporation of the State of Florida, executed a promissory note for $2,000 to the Dutton Bank of Gainesville, Florida, indorsed by the plaintiff W. S. Bell and T. J. Terry, residents of that State, and by the defendant, Joe Higdon, a resident of Grady countj', Georgia. When the note became due it was protested for non-payment, and on demand the plaintiff paid to the bank the principal sum of $2,000 and $21.60 interest and took up the note, and this suit was brought in the superior court of Grady county to recover a half of the amount thus paid, with interest thereon, less a credit of $75 which the plaintiff had realized from certain collateral. From the evidence on the trial it appeared that shortly after paying the note, the plaintiff received from the maker certain live stock, goods, and merchandise of the value of about $1,500, and notes 'and mortgages aggregating about $2,600, constituting assets of the corporation, which were to be applied by the plaintiff to his reimbursement as realized upon; that afterwards the Higdon Trading Company was adjudicated a bankrupt, and, in settlement of proceedings in the bankruptcy court to recover of the plaintiff the assets turned over to him by the bankrupt, he paid to the trustee in bankruptcy $900, which he testified represented all he ever realized from the sale of the property turned over to him by the bankrupt. He testified that the only sum realized from the notes and mortgages was the $75 credited on the note, and that the remainder of the notes' and mortgages turned over to him were worthless, being either barred by the statute of limitations when he received them or against insolvent persons, and therefore uneollectable. The verdict was in favor of the plaintiff, for the full amount sued for. The defendant made a motion for a new trial, contending therein that the verdict was contrary to law and the evidence, for the reason that the act of the plaintiff, which was without the defendant’s knowledge or consent, in demanding and receiving from the maker of the note $4,000 worth of its assets, rendered the maker insolvent, and caused it to commit an act of bankruptcy, thereby increasing the defendant’s risk as surety and exposing him to greater liability, and that he was therefore discharged from liability ; that the $4,000 worth of assets were delivered by the maker of the note to the plaintiff in payment of the note, and the 'defendant was thereby discharged from liability to make contribution; that the plaintiff failed to account to the defendant for any of the property received by the plaintiff, and therefore could not maintain the present suit for contribution; and that the failure of the plaintiff to prove his claim against the bankrupt’s estate, after having surrendered to the bankruptcy court the value of the property received by him, increased the defendant’s risk as cosurety and discharged him.</p> <p>In the 5th special ground of the motion' for a new trial the defendant excepts to the charge of the court to the effect that if the maker of the note, while insolvent, paid to the plaintiff any amount, either in goods or money, as a payment on the note, and the plaintiff was thereafter compelled to pay over to the bankrupt court any such amount thus received from the maker, the amount so paid should not be credited as a payment on the note, and would not release or discharge the indorsers from their liability to contribute to tbe plaintiff.' In the 6tli special ground the defendant excepts to the charge of the court to the effect that if the jury should find that T. J. Terry resided without the’ State of Georgia, the fact that he may have been an indorser on the note should not be considered by the jury in determining what would be the liability, if any, of Higdon to contribute to the plaintiff. The court overruled the motion for a new trial, and the defendant excepted.</p>

<p>Action for damages; from city court of Oglethorpe —Judge Moon presiding. July 22,1919.</p>

<p>Action for damages; from city court of Savannah — Judge Rourke. June 4, 1919.</p>

<p>Action of deceit; from city court of Waycross — H. M. Wilson, judge pro hac vice. April 28, 1919.</p>

<p>' Attachment; from city court of LaGrange — Judge Moon. March 11, 1920.</p>

<p>Action for damages; from Henry superior court — Judge Searcy. August 2, 1919.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

Action for damages; from city court of Sandersville — Judge Jordan. August 6, 1919.

<p>Complaint; from city court of Reidsville — Judge Cowart. September 2, 1919.</p>

<p>Complaint; from city court of Reidsville — Judge Cowart. August 15, 1919.</p>

<p>Affidavit of illegality; from city court of Camilla — Judge Bur-son. July 30, 1919.</p>

<p>Action for damages; from city court of Macon — Judge Guerry. September 26, 1919.</p>

<p>Complaint; from Chattooga superior court — Judge Wright. September 9, 1919.</p> <p>Allman, a former cropper of Godwin, sued him in the county court, and on appeal the case was tried in the superior court and a verdict rendered against the defendant; his motion for a new trial was overruled, and he excepted to that judgment and to other rulings here stated.</p> <p>2. In the original petition it was alleged: (Paragraph 1) The defendant is indebted to the plaintiff in the sum of $115.25 principal and $3 accrued interest, and payment of, the same has been demanded and refused. (Paragraph 2) The defendant is indebted to the plaintiff in the sum of $106.22 1-2 for money had and received by the defendant, belonging to the plaintiff, said sum being the price of cotton belonging to the plaintiff and sold by the defendant, and the money arising therefrom being withheld from the plaintiff by the defendant; and also $9.22 1-2 cents which plaintiff paid for guano and at the instance of defendant, which sum plaintiff fails and refuses to pay back to plaintiff. Plaintiff prays for judgment for said sums. By amendment the plaintiff struck paragraph 2 (to which the defendant had demurred), and added to paragraph 1 (to which the defendant had demurred as being too indefinite) the following facts “by way of amplification:” (1) Plaintiff became the tenant of defendant in the year 1917, by contract to work certain lands belonging to defendant on halves,—that is, a half of the products of the lands to be the property of plaintiff and the other half the property of the defendant; also a part of the contract of tenancy was that plaintiff should pay for half the guano used to fertilize the crop and the defendant should pay the other half. Plaintiff made the crop and cultivated the lands according to contract, and on December 26, 1917, the defendant seized and took away-from the premises of plaintiff, without leave, warrant, or authority, two bales of cotton raised on said lands by plaintiff under the contract of tenancy as set out, said bales of cotton weighing the aggregate of 770 pounds and being of the value of $238.72, which was the sum received by defendant for said cotton, a half of the cotton being the property of plaintiff, and a half of the amount received for the same, to wit, $119.36, being the money of plaintiff. The defendant received and has this sum of $119.36 belonging to plaintiff, and fails and refuses to turn it over to plaintiff, and illegally and wrongfully holds it to the use of'plaintiff.' (2) Also, on December 13, 1917, plaintiff paid to the Trion Company $18.44 for guano used in the fertilization of said crop and cotton, and by the terms of the contract of tenancy the defendant was to pay a half of this guano debt, or, more strictly stating the terms of the- contract, plaintiff was to pay the whole sum and retain sufficient funds from the products of the land to reimburse him for a half of the cost of the guano used; and this the plaintiff did pay, at the instance and for the account of the defendant; and the proceeds from the sale of the two bales of cotton taken away and sold by the defendant, as set out, are now due. The plaintiff is entitled to recover also $9.22 of the money received by the defendant for said cotton, to cover the sum which the plain-, tiff paid for said guano on account of the defendant; and to the extent of this sum of $9.22 said cotton was the property of plaintiff, and this amount of the proceeds of its sale is money of the plaintiff, illegally and wrongfully held by the defendant and to the use of plaintiff. The plaintiff prays for judgment for said sums.</p> <p>In addition to the general and special demurrer to the original petition, the defendant demurred to the amendment, as follows: The amendment sets out a new cause of action. It is not germane to the issue. It fails to set out with sufficient certainty the contract, and fails to show that the plaintiff complied with his obligations under it. It appears that he was not a tenant, but a cropper, and that the title and possession of the property were •in the defendant. The plaintiff seeks to join two causes of action, tort and account, and “claims both an account and because $9.22 of said cotton was plaintiff’s property.” The defendant’s demurrers were overruled.</p> <p>3. In the answer the material allegations of the petition were denied, and it was alleged that ■ the defendant and the plaintiff entered into a contract for the year 1917, under which the plaintiff became the defendant’s cropper and obligated himself to cultivate and gather in that year a crop of between 15 and 20 acres in cotton and between 12 and 15 acres in corn on designated lands of the defendant, for which work he was to have a half of the proceeds of the crop, and the defendant the other half, the defendant agreeing to furnish the lands and two mules to cultivate them, and to furnish feed for the mules; that it was agreed that the plaintiff, when using the mules in the cultivation of the crop, was to keep them on the place, where the crop was being cultivated, and when they were not in actual use he was to return them to defendant’s place near by, for the defendant’s use. It was alleged that the'defendant carried out his obligations to the plaintiff, and that the plaintiff failed to perform his obligation under the contract; to the injury and damage of the defendant, as set out in various subsections of paragraph 5 of the petition. The court, on demurrer, struck subsections a, d, f, and g. In subsection a it was alleged that the plaintiff failed to plow and hoe the crops at reasonable and proper times and in a proper manner, and on account of this neglect grass and weeds grew in the crops, the lands became hard and crusty, and the crop of cotton was only four bales when it should have been eight, and the crop of corn only 250 bushels when it should have been 400 bushels; and by this shortage of cotton the defendant was damaged in the sum of $400, and by the shortage of corn was damaged in the sum of $150. In subsection d it was alleged that, contrary to the defendant’s will and instruction, the plaintiff plowed up about two thirds of an acre of the cotton after it was fertilized and growing, and planted it in sweet potatoes, to the defendant’s damage in the sum of $10. In subsection g it was alleged that the plaintiff, without the consent of the defendant, removed from the premises the manure which had accumulated thereon during the year, largely the excrement of the defendant’s mule, which manure was of the value of $30, and he is indebted to the defendant in that sum.</p> <p>The remaining allegations of paragraph 5 of the answer are, in substance: that the plaintiff failed to gather 400 pounds of seed-cotton and left it to rot in the field, to the defendant’s damage in the sum of $20; that on leaving the premises in December, 1917, he left unprotected in an open pen about 2500 pounds of seed-cotton and failed to prepare it for market, and on account of this about 400 pounds of it was stolen and the defendant thereby damaged in the sum of $20, besides being compelled to incur an expense of $8 to protect and prepare for market what was left; that, contrary to the contract and the will of the defendant, the plaintiff used the mules for himself and for others 30 days when not engaged in the crops, and on this account he is indebted to the defendant the value of the hire of the mules, $3 a day, aggregating $90; and that he is indebted to the defendant in the sum of $8 for labor which at stated times was performed at the plaintiff’s request, in making the crop. It is alleged that the plaintiff is insolvent, and it is prayed that the several sums stated above be recouped and set off against his demand.</p> <p>4. The court charged the jury: "If you believe, from the evidence, that any amount of the cotton was removed from the cotton pen as alleged by the defendant, you could not find the value thereof in favor of the defendant for the reason that plaintiff was negligent in leaving it there as alleged, but you could only so find in case you believe that plaintiff took it himself.” Also: " The defendant could not recover of the plaintiff for the time mules stood up in the lot not used. He could only recover for the time the plaintiff put the mules to his private use.” These are the instructions referred to in paragraph 4 of the foregoing decision.</p> <p>5. Paragraph 5 of the decision relates to the refusal of the court to charge the jury that “if the plaintiff failed to carry out the terms of his contract, he would not be entitled to recover at all.” It is alleged that in refusing to give this instruction the court erred because “the plaintiff’s case as amended was laid upon his right to recover upon contract, and the refusal of the court to charge as requested left the jury to find for the plaintiff, if they saw fit to do so, upon quantum meruit or other theory of the case.”</p> <p>6. The verdict was “for plaintiff $112,” and the judgment entered thereon was for that sum “and legal interest accrued.” It was alleged that the judgment “is error in that the jury found no accrued interest, and the same is not in terms of said verdict.”</p>

<p>Action for slander; from city court of Valdosta—-Judge Cranford. October 4, 1919.</p>

<p>1. Because of indefiniteness and uncertainty in the terms of payment, -no binding contract was made in a written agreement for the purchase of property to be paid for as follows: “$2,000 cash and the balance of $1,300 in monthly payments,” the amounts, the number, or the times of the monthly payments not being indicated therein. There being no contract or purchase, the agents named in the writing, with whom a certain sum of money was deposited by the intending purchasers, as “part of the named purchase-money to bind the trade,” had no legal right to retain it, either under the terms of the alleged contract or for services leading up to the same.</p> <p>2. An action for the recovery of the amount of the deposit, by the parties from whom the agents received it, could properly be brought against the agents instead of against the principal, to whom it had not been paid over.</p> <p>3. The court did not err in directing a verdict in favor of the plaintiffs.</p>

<p>The charge of the court should cover the substantial issues made by the pleadings and the evidence; but there was no issue that required instructions such as it was contended the court erred in omitting in this case.</p> <p>It not being contended in the motion for a new trial that there was any other error of the court, and there being evidence to support the verdict, the refusal to grant a new trial was not error.</p>

<p>Certiorari; from Fulton superior court — Judge Humphries. October 27, 1919.</p>

<p>Action for damages; from McDuffie superior court — Judge Henry C. Hammond. October 20, 1919.</p>

<p>An accounting between partners being involved in this suit, the city court of Savannah was without jurisdiction of the suit.</p>

<p>Appeal; from Haralson superior court — Judge Irwin. July 1, 1919.</p>

<p>Where a person sells personal property under an express warranty, talcing in payment a purchase-money note which recites the consideration for which the note is given, if the purchaser should subsequently, without reference to the contract of warranty, merely make an independent swap or exchange with the seller, whereby he receives other property for that originally purchased, the transaction would not in law amount to a rescission of the original contract of sale, so as to avoid the note given to the seller by the purchaser. In such a transaction the consideration given by the purchaser for the new property arises by virtue of the exchange whereby the seller receives back the original property sold by him, and the reason why the purchaser owned that property to trade with comes from his having given to the seller his note therefor. But where, as in this case, a person sells to another personal property under an express warranty, taking from the seller a purchase-money note which recites that it is given as purchase-money for the property bought, and where subsequently the purchaser, acting under the contract of warranty, reports defects in the property bought by him and offers to return it, and where the seller, recognizing his contract of warranty, assents to and actually accepts a return of the property, the latter transaction amounts to a complete rescission of the former contract of purchase and sale, with the result that the note previously given for the purchase-money of the original property becomes null and void. The fact that subsequently to such return and acceptance of the property the parties to the contract may have agreed to the substitution of other property in lieu of that originally purchased would not operate to revive the validity of the note which had become invalid upon the rescission of the original contract under which it was given.</p>

<p>Action on contract; from city court of Floyd county—Judge Nunnally. August 26, 1919.</p>

<p>Action on life-insurance policy; from city court of LaGrange-—• Judge Moon. August 27, 1919.</p>

<p>Complaint; from Floyd superior court — Judge Nunnally presiding. August 22, 1919.</p>

<p>1, 2. Under rulings made by this court when this case was previously before it, the only question left for determination on the new trial was as to the value of the cow recovered in'the trover suit; and the trial judge did not err in rejecting the amendment by which the defendants attempted to set up that after the rendition of the judgment in that suit the cow died by the act of God.</p> <p>3. The certiorari bond sued on in this case was not rendered inadmissible as evidence by the fact that the surety thereon was also surety on the bail-trover bond in the case in which the certiorari was sued out.</p> <p>4. Although no plea of the defendants remained in the ease, they had the right to cross-examine the plaintiff’s witnesses and to introduce evidence for the purpose of rebutting the evidence introduced by the plaintiff as to the value of the cow. Evidence offered to show that no demand was made for the cow before suit was properly excluded.</p> <p>5. Exception to the refusal of a nonsuit will not be considered, exception being taken also to the overruling of a motion for a new trial in which the verdict for the plaintiff is complained of as unsupported by evidence.</p> <p>6. In the absence of a plea by the defendants, refusal to allow their counsel to open and conclude the argument to the jury was not error.</p>

<p>Trover; from city court of Cairo — Judge Bigsby. November 24, 1919.</p> <p>From the evidence it appeared that the bond for title to the deceased husband of the plaintiff, the value of which she sought to recover in this action, showed an agreement on his part to pay $1,500 for the land described therein, and that only $200 of this amount had been paid.</p>

Eviction; from Elbert superior court — Judge Hodges. November 6, 1919. Upon an affidavit of Swift under the Civil Code (1910), § 5385, a warrant was issued for the eviction of Salios from a certain storehouse as a tenant holding over and beyond his term.

<p>Appeal from Webster superior court — Judge Littlejohn. November 1, 1919.</p>

<p>1. The agreement alleged in the plea of set-off was too vague and indefinite, and the court did not err in striking the plea.</p> <p>2. No sufficient defense was set up by the plea that the note sued on was without consideration and was obtained by duress.</p>

<p>Appeal; from Pulaski superior court — Judge Graham. September 11, 1919.</p> <p>Application for certiorari was denied by the Supreme Court. The heirs at law of M. T. Hodge, deceased, were his three sisters and the children of his two deceased brothers. One of the sisters — Mrs. Elizabeth Smith—was selected in writing by the children of the deceased brothers for appointment as administratrix of his estate, and she applied to the court of ordinary for appointment as such. The other two sisters filed a caveat to the application, and named D. R. Pierce as their choice for appointment as administrator. The judgment of the judge of the superior court, on appeal from the court of ordinary, was that Mrs. Smith was legally entitled to be appointed as administratrix, and that the caveat be overruled and she be appointed as such. To this judgment the caveators excepted. It was contended on their part that only those distributees of an estate who are equally related in degree to the decedent are entitled to vote in a contest over the appointment of an administrator, under subsection 3 of section 3943 of the Civil Code (1910), which provides that “If there be several of the next of kin equally near in degree, the person selected in writing by a majority of those interested as distributees of the estate, and who are capable of expressing a choice, shall be appointed.”</p>

<p>Action for money had and received; from Fulton superior court ■—-Judge Bell. October 22, 1919.</p>

<p>Action for damages; from city court of Savannah ■— Judge Freeman. October 28, 1919.</p> <p>See same case, 24 Ga. App. 69.</p>

<p>Complaint; from Crisp superior court — Judge Gower. November 18, 1919.</p> <p>The Empire Cotton Oil Company sued Mrs. Penny on an account for fertilizer alleged to have been sold and delivered to her in February, April, and May, 1913. In her answer she denied that the fertilizer was bought by or for her, and alleged that it was furnished to her deceased husband, J. E. Stephens, and that the debt in question was his debt, and not hers. On the trial the plaintiff offered in evidence, as an admission of the defendant, a transcript of testimony given by her on a former trial, which the official stenographer of the court testified was “a correct statement of what Mrs. Penny testified on that occasion,” although he could not, without his notes, remember what she testified, or that she testified. The court ruled that the witness could refresh his recollection from tbe notes and testify from bis recollection, but could not read to the jury tbe notes or tbe transcript. Tbe transcript itself was admitted in evidence after tbe defendant had been introduced as a witness for the plaintiff and had testified, the plaintiff then offering the transcript both as an admission of the defendant and for the purpose of impeaching testimony given by her on the pending trial, but the court admitted it for the purpose of impeachment only, and ruled that it could not be" used for the purpose of proving anything else. In this former testimony the defendant stated, in substance, that she was formerly the wife of J. E. Stephens, who died in October, 1913; that for ten or twelve years and until his death she and her deceased husband lived together on her farm; that she inherited the farm from her father’s estate and the title was in her name; that during these ten or twelve years he managed the farm for her, with her knowledge and without objection from her, malring purchases of supplies and fertilizer and looking after the business generally; that she did not know where the fertilizer for the 1913 crop came from until after his death, when Mr. Lashley came out to see her about the debt, at which time she paid the plaintiff $100 on the account for the fertilizer for that year; that the $100 was proceeds of the 1913 crop gathered after the death of Mr. Stephens; and that Mr. Stephens never paid any rent for the farm; also that he managed and looked after that crop and farm for himself and was not her agent. “I suppose the crop of 1913 was his; I had nothing to do with it; it was his crop; he worked it and cultivated it with my permission and consent.”</p> <p>C. H. Jones testified that he was cashier and acting manager for the plaintiff in 1913; that the sum charged in the account sued on was due and the value of the fertilizer was substantially as set forth in the account; that he remembered the shipment.of fertilizer to Mr. Stephens and the giving of notes for it; that he could not testify as to whether the plaintiff company knew at that time that the farm referred to belonged to Mrs. Stephens; he did not know it personally; “Mr. Lashley handled the fertilizer sales and passed on the credits, and he made the sale to Mr. Stephens.” There was no testimony in addition to that of the witnesses mentioned above. The court granted a nonsuit, and the plaintiff excepted to that judgment and to the rulings stated above.</p>

<p>Action for damages; from city court of Macon — Judge Guerry. June 19, 1919.</p> <p>The material allegations in the petition are: that the plaintiff was employed by the defendant as foreman in charge of its printing-press, -and in case the web of the paper should break while running through the press it was his duty to catch the end of the web and lead the web or feed it into the press until caught up by the rollers and carried by them through the press; that the operation of the press is controlled by a clutch, and when the clutch is engaged the press is in motion, and when disengaged the press is stationary; that on or about March 18, 1918, while he was working at the press, the web of the paper broke, and, in accordance with his custom and practice, he signalled to a fellow servant to stop the press, but, on account of a defective clutch, the press failed to stop, and in attempting to feed the broken switch into the press the plaintiff suffered an injury to his hand. The petition alleges, that the “cause of said injury was a defect in the clutch,” and that “while petitioner had brought to his notice, previous to his injury, that the clutch did not work properly, at the time he was injured his duty and work were so absorbing in the interest of the defendant that they required all of his undivided attention, and that he was prevented from being conscious of and from realizing and from noting the fact that occasionally prior thereto the clutch on said press had not worked perfectly.”</p>

<p>Eviction; from city court of Albany — J. E. Pottle, judge pro hac vice. June 11, 1919.</p>

Action for damages; from city court of Americus — Judge Harper. June 30, 1919.

<p>Action for damages; from Washington superior court — Judge Hardeman. June 21, 1919.</p>

<p>Action for damages; from city court of Springfield — Judge Shearouse. June 24, 1919.</p>

<p>Complaint; from Haralson superior court — Judge Irwin. July 1, 1919.</p>

Complaint; from city court of Dublin-—-Judge Flynt. September 10, 1919. ' Tbe Bank of Adrian, for the use of the payees, sued the maker on the last of a series of five promissory notes. The contention that the holder of the note was a bona fide purchaser was admittedly not made. The consideration of the note was for the part purchase of a certain tract of timber described in a contemporaneous written instrument of sale.

<p>Certiorari; from Hall superior court — Judge J. B. Jones. July 26, 1919.</p>

<p>Levy and claim—motion to reinstate claim; from city court of Sandersville—Judge Jordan. August 1, 1919.</p>

<p>Action for damages; from city court of Eeidsville — J. Y. Kelley, judge pro hac vice. September 1, 1919.</p>

<p>Complaint; from Gordon superior court — Judge Tarver. August 26, 1919.</p>

<p>Action for damages; from Washington superior court — Judge Hardeman. November 24, 1919.</p> <p>The action was for damages on account of the death of the plaintiffs husband, a farmer 48 years of age. The verdict was for $15,000. There was evidence to the effect that he made about $2,200 a year net from his farm, that he was in good health and his services were worth that sum.</p>

<p>Complaint; from city court of Savannah — Judge Freeman. June 7, 1919.</p>

<p>Action for malicious prosecution; from city court of LaGrange — h. L. Meadors, judge pro hac vice. September 24, 1919.</p>

<p>Complaint; from Forsyth superior court—'Judge Morris. August 37, 1919.</p> <p>J. P. Brooke sued Allen and Hill for $100 and interest thereon from August 31, 1917, alleging that the defendants were indebted to him in that amount upon account for fees to be paid to him by them for services rendered and to be rendered in specified cases in Forsyth superior court, which were settled and dismissed by agreement of the parties. The defendants in their answer denied the allegations of the petition, and pleaded that they had tendered to the plaintiff $50 in settlement of his claim, and made a continuing tender of that sum. The court, after hearing the evidence on the trial, directed a verdict against the defendants for the amount sued for, and they excepted.</p> <p>In the plaintiff’s testimony it was stated that after negotiations between him and the defendants Allen and Hill in regard to his employment as counsel for them in several cases pending in Forsyth superior court, in which it was desired that he should 'assist Judge Gober, who was already counsel in the cases, Mr. Allen agreed to give him a straight fee of $100 for his services, regardless of the termination or result of the cases; he was “just to appear in them,” and if they were stricken from the docket of the court he would be entitled to his fee, under the contract: that he was employed before the February term, and was at the court at that term, and these cases were passed over, and that just before the next term (August term, 1917), he came to Cumming (where the court was held), and, with Mr. Allen and Mr. Hill and in the absence of other counsel, “worked through the papers and decided on quite a number of little things to get ready for the approaching term of court,” made several suggestions about amendments that, ought to be made in the pleadings and about the evidence, and asked them if they could get up the evidence, and they thought they could; the pleadings were already prepared and he was to assist on the trial; he suggested a line of defense in one of the cases that would require the production of other witnesses, and they said they would get up those witnesses; he and they spent a large part of the day in getting through the papers and getting ready; he came to the court at the August term, and when he got there Judge Gober told him that he (Judge Gober) had been there before court and had the cases settled; there was no trial on them; he asked the defendants for his fee and they refused to pay him.</p> <p>The defendant Allen testified: “Judge Gober had prepared the cases and Judge Patterson was to help in the trial. . . I agreed to give Mr. Brooke $100 to represent me in these cases on the trial through the courts. . . Our agreement was I should pay Mr. Brooke $100 to represent me in the cases through the courts. Mr. Brooke said he would come up here and spend a week in looking up the testimony and examining the witnesses and getting the cases ready for the court; he was to work in connection with Judge Patterson, and Judge Gober. Mr. Brooke stayed at my house when he came on return day, anywhere from half an hour to an hour, and discussed the matter in general with me and Mr. Hill; he then 'agreed to come back two days before court, . . but he didn’t come, and this settlement that was made was made on Saturday before court convened on Monday; he .hadn’t come up to that time and didn’t come that day. Mr. Brooke has not rendered any services in the way of preparing the cases that I know of. . . I authorized my attorneys to settle the cases on opposing parties paying all attorney’s fees 'and all costs.” In the settlement Mr. Brooke was to receive $50. “I admit the $50 going to him.” “I don’t deny I promised to give Mr. Brooke $100; that did not depend on how the cases went;” he was to assist in all the cases through the courts. The defendant Hill testified that he was to be jointly liable for the fee of Mr. Brooke. His testimony was substantially in accord with that of the defendant Allen. Judge Gober testified that Mr. Brooke told him that he (Brooke) would come to Gumming and spend two days before a term of court, to get up evidence; and he (the witness) was there on Friday before the August term when the cases were settled, and Mr. Brooke was not there; if Mr. Brooke ever did any work in the cases he did not know it. In rebuttal Mr. Brooke denied that he had promised to be in Cumming two days before court.</p>

<p>Action on insurance policy; from city court of Wayeross •—• Judge Crawley. September 15, 1919.</p> <p>See same case, 23 Ga. App. 421.</p>

<p>Action for damages; from Bartow superior court — Judge Tarver. September 22, 1919.</p>

<p>Action on contract; from city court of Savannah' — Judge Freeman. October 10, 1919.</p> <p>In 1918, the Foundation Company was engaged in the construction of thirty-eight steel vessels, known as “mine sweepers,” for the Eepublic of France. On August 7, 1918, it entered into a written contract with Oliver G-. Ball, by which he was employed to bend the steel frames to be used as the ribs in the construction of these vessels. He sued the Foundation Company upon this contract (a copy of which was attached to the petition), alleging that after he had bent the frames for six of the thirty-eight vessels, the contract was, without legal cause, terminated by the defendant. He sought to recover as damages what he alleged to be the net loss of profits occasioned by the breach, and also five per cent, of the contract price for the work actually performed under the terms of the contract, which he alleged the defendant had failed and refused to pay. The petition was based on the theory that the contract was in fact to be performed by the petitioner in conjunction with a number of other persons, the petition alleging that “it was provided that petitioner and the other three men working in conjunction with him should receive the sum of $4.00 per frame complete in ships 1-38 inclusive,” and he sued for a fourth of the net damage from the loss of profits.</p> <p>The defendant demurred to the petition generally and specially. The judge sustained the general demurrer and also the special ground to the effect that “it appears from the allegations of the petition that no contract such as alleged therein was ever entered into between plaintiff and this defendant,” but the plaintiff was granted the right to amend so as either to stand on the contract as written or to show a legal subsequent agreement changing its terms to conform to the allegations of the petition. The plaintiff sought to amend the petition, but did not thus seek to set forth any express agreement altering the terms of the original contract. Paragraph 2 of the proffered amendment is as follows: “Hnder the terms of the contract and under the actual interpretation and working thereof by petitioner and the defendant company, the contract attached to the petition contemplated, and was known to both petitioner and the defendant to contemplate, that petitioner should bend all of the frames in the said thirty-eight vessels which it was possible for him to bend, under the circumstances under which the petitioner and defendant were working. When petitioner first began the performance of his contract there were three frame benders, including himself, but before the completion of the six ships heretofore mentioned another frame bender was added, making four frame benders' altogether. Under the actual working of the contract both before and after petitioner was denied the privilege of completing his contract by the defendant company, two of said frame benders, with their helpers, worked a ten-hour shift, at the conclusion of which the other frame benders, with their helpers, worked a ten-hour shift. In this manner the four frame benders were actually bending the frames in the ships, and it was intended that they should bend the frames for all the vessels in this manner. In each ship there were to be one hundred and fifty-eight whole frames. In the thirty-two ships there were to be five thousand and fifty-six frames. Of these five thousand and fifty-six frames it was contemplated that petitioner should bend as many as one fourth, and as many more as possible, and petitioner avers that under the system which he was following he would easily have bent as many as one fourth' of the entire number of frames, or one thousand two hundred and eighty-four frames altogether in the remaining ships. Under petitioner’s contract he was entitled to the sum of four dollars per frame, and he would therefore have been entitled to receive for the one thousand two hundred and eighty-four frames, which it was contemplated that he should bend, and which he would have bent had he been permitted to complete his contract, the sum of five thousand one hundred and thirty-six dollars.</p> <p>The judge refused to allow the amendment and sustained the general and 'special demurrer.</p>

<p>Action for damages; from Chatham superior court — Judge Meldrim. September 18, 1919.</p> <p>From the petition it appears that the plaintiff, in the discharge of his 'duty as an employee in the defendant’s manufacturing plant, was flushing out a nitrate tank with water from a hose, when he became asphyxiated with fumes from an open receptacle or reservoir, known as a boot, the top of which was flush with the floor, at a distance of a few feet from the tank, and into which the accumulations of nitrate from the bottom of the tank were thus washed through a pipe; that in his asphyxiated condition he sat down near a puddle of acid and his clothes became saturated and he was burned by the acid, and he suffered serious injuries from the asphyxiation as well as from the burning by the acid. The defendant’s foreman Williams, whom it was his duty to obey, had told him to wash out the nitrate tank, and he (the plaintiff) instructed his coemployee Shorter to cover the boot with a bag, in order to prevent the fumes from arising. It was Shorter’s duty to cover the boot as directed by him, but the foreman, Williams, who was in authority over both of them, instructed Shorter to hold up' the hose instead of covering the boot with a bag. This the plaintiff did not know and could not by the use of ordinary care have ascertained, and, supposing that Shorter had covered the boot, he continued to flush the tank until, before he was aware of it, the fumes arising from the boot had rendered him dazed and partly unconscious. Another employee told Williams that something was wrong with the plaintiff, and when the plaintiff sat down near the puddle of acid this coemployee urged Williams to get him away from the acid, as he was certainly going to be injured. It is alleged that Williams did not render ordinary care for his protection, and because of his proximity to the "acid his clothes became saturated with it as stated above; that finally Williams, leaving him in his overcome condition in a dangerous situation, went off and called up a police ambulance and said that he had a crazy man out there, to come get him; and that Williams permitted him to be carried to the police barracks, where he was permitted to remain several hours and until his wife found him, at which time he was sent to a charity hospital for treatment. 'It is alleged that his injuries were due to negligence of the defendant; that it was negligent in not furnishing a safe place and safe and suitable means and appliances for his work; and that through its foreman Williams it was negligent in various specified acts and omissions as stated above. By amendment it is alleged that when the plaintiff was flushing the tank his back was turned to the boot, and for this reason he could not see that his coemployee Shorter, whose duty it was to place the sack over the boot, had not done so; that he was intently engaged in his work and in watching the process of flushing out the tank; that it was necessary that he should stoop down and have his face on or about the level of the top of the tank and look over its side; that it was impossible for him to see that any fumes were arising from the boot, because the fumes were invisible, and there was nothing to indicate that they were arising and enveloping him to such an extent as to cause injury; that although he noticed a slight odor of gas, he considered that it arose from the tank and would not be sufficient to injure him, as he had never suffered injury from that cause before.</p>

<p>Under the provisions of the policy or death-benefit certificate sued upon, which had been issued to the plaintiff’s deceased husband as a member of a local eouneil of the Junior Order United American Mechanics, the right of action thereon, if there was any, was against the national council of the order, and not against the local council. If the local council failed to perform its duty to the member by failing to pay the premium due to the funeral-benefit department of the national council, the beneficiary might have a right of action against the local council for damages, and in such ease the measure of damages would be the value of the policy.</p>

<p>Levy and claim; from Early superior court — Judge Worrill. December 13, 1919.</p> <p>As security for the payment of his individual debt to thé First National Bank of Blakely, P. FL Wade executed on March 23, 1918, a mortgage to that bank upon what was described as “one-fourth undivided interest in twenty-four mules owned by the Wade Company, of Early county, of which the said P. H. Wade is manager.” Under a foreclosure of the mortgage a fourth undivided interest in certain mules was levied on as the property of the defendant in fi. fa. A claim to the property was interposed by T. W. Wade, J. W. Wade, and Adelaide Wade Sheppard, “doing business as the Wade Estate,” and on the trial of the case it was contended that the interest of P. H. Wade in the property of the Wade Company was sold by him to the claimants before he executed the mortgage to the bank. From the evidence it appeared that a farming partnership designated as the Wade Company was formed in 1912 between P. FI. Wade and the claimants, for the purpose of operating the lands of the estate of J. M. & E. W. Wade, under a written agreement which recited that it was between P. II. Wade and “the estate of J. M. & E. W. Wade as represented by executor,” T. W. Wade, and which provided that P. FI. Wade should be “the active manager of the company.” T. W. Wade testified that under this partnership P. FL Wade took charge of the partnership property, and, as manager of the Wade Company, managed the property until February 8, 1917; that he (the witness) then made a trade with P. FI. Wade in which P. FL Wade’s interest in the partnership was bought; and that P. FL Wade had no interest in the mules in question or in the partnership since February 8, 1917, and the mules were owned by himself and the other claimants; that he (the witness) had “a writing or receipt from P. FI. Wade, showing his release of any interest he had in the property mentioned in this contract (referring to a writing exhibited which the witness said he saw P. FL Wade sign); that “from that date P. FL Wade still acted as manager for the Wade Company, but after that date he had no interest in the property or the enterprise of the Wade Company except to look after it and manage it on a salary;” “he still had control, management, and eondnct of the business,” and this arrangement continued until October, 1918. The witness “never published any notice of the release of his partnership,” and “never put anybody on notice of the dissolution of the partnership,” “ nor of the original partnership either.” The witness further testified that in 1917, after he had bought P. H. Wade’s interest, he told J. S. Sherman, the president of the plaintiff bank, that P. H. Wade did not own “ any part of this property, either real or personal, and that if they loaned him money 'they would do it at their own risk.” This statement and other statements as to what this witness said to Sherman were contradicted in Sherman’s testimony.</p> <p>It was contended on the part of the plaintiff that notice of the withdrawal of P. II. Wade from the partnership should have been given, and that, under the facts of the case, the claimants were estopped from setting up .title to the property in question, as against the bank. The trial judge ruled against this contention,, and held that the only issue in the case was whether or not the claimants had acquired title to P. M. Wade’s interest in the property prior to the date of the execution of his mortgage to the plaintiff; and the jury were so instructed.</p> <p>The writing referred to by T. W. Wade as the one given to him on February 8, 1917, and to which the 6th division of the decision relates; was admitted in evidence over the objection that it was “mere hearsay and irrelevant, not a sworn statement in any way, and because nothing that P. H. Wade may have said, in writing or otherwise, would be binding on the First National Bank.” In the brief of counsel for the plaintiff it is contended that this writing is incomplete and fails to identify the property, and that even if it can be treated as a bill of sale, it does not show a sale to the claimants, the purchasers named in it being “J. M. & E. W. Wade.” The writing is as follows: “Blakely, Ga. Feb. 8th, 1917. Know all men by these presents that having originally contributed to the Wade Company personal property specified in the attached list, of the value of three thousand dollars ($3,000), for value received I have this day sold and conveyed to J. M. & E. W. Wade all the above described property, being all my interest in the Wade Company. Witness my hand and seal the clay and year first above written. Perry H. Wade (Seal).” No list of the property referred to was attached to the writing.</p>

<p>Certiorari; from Chatham superior court —• Judge Meldrim. November 10, 1919.</p>

<p>Certiorari; from Fulton superior court — Judge Humphries. October 27, 1919.</p>

<p>(Certiorari was granted by the Supreme Court).</p> <p>Trover; from city court of Morgan — Judge Miller. November 5, 1919. ' •</p>

<p>Action for damages; from Wilkinson superior court—Judge Park. December 8, 1919.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Action for damages; from Fulton superior court — Judge Bell. December 6, 1919.</p>

<p>Complaint; from city court of Statesboro — Judge Proctor. December 9, 1919.</p>

<p>Trover; from city court of Brunswick — Judge Krauss. December 20, 1919.</p>

<p>1. The question whether the contract for the sale of cotton to the plaintiff was joint and several, or only a joint contract, on the part of the defendant and the third party signing it with him, was one of fact, for determination by the judge, who by agreement of the parties tried the ease without a jury; and he having found that it was a joint contract, and there being evidence to sustain this finding, he did not err in holding that a receipt of the plaintiff, releasing the co-obligor of the defendant, operated to release the defendant also.</p> <p>2. There was sufficient evidence of the agency of the person who signed the receipt in the name of the - plaintiff, and the court did not err in admitting the receipt in evidence.</p>

Action for damages; from Walker superior court — Judge Wright. December 23, 1919. The suit was filed on July 8, 1918.

<p>Trover; from Heard superior court — Judge Terrell. December 29, 1919.</p>

<p>Action for damages; from Chatham superior court — Judge Meldrim. January 15, 1920.</p>

<p>Action on contract; from Fulton superior court — Judge Bell. December 3, 1919.</p> <p>Application for certiorari was denied by the Supreme Court.</p> <p>On September 12, 1918, Mary Hobson Bramlett brought suit against the American Eealty Company, alleging, substantially, that on September 15, 1915, she agreed to purchase a described lot from the defendant for the sum of $600,— $420 cash, and the remainder payable 36 months from the date of the agreement; that she paid the $420, and gave notes for the remainder of the purchase-price, receiving a bond for title (a" copy of which was attached to the petition) in which the defendant made the following warranties and guaranties: (1) “that the street or streets on which said lot faces will be graded and have trees planted;” and (2) “that either cement or tile sidewalks will be laid in front of said lot, all without cost to purchaser.” She alleged that there was a breach of the contract in the part of the defendant; that approximately three years had elapsed since the making of the agreement; that the street on which the lot faces was not properly graded, and no cement or tile sidewalk was laid in front of the lot; and she prayed for a judgment for'the $420 paid by her to the defendant, with interest thereon. The defendant in its answer admitted substantially the alleged contract, but denied that it had breached the contract, and denied that the plaintiff was entitled to recover the amount sued for. There was undisputed evidence that the contract was made and the money paid as alleged, that no sidewalk had been laid in front of the lot, that nearly three years had elapsed since the making of the agreement, and that before the filing of the suit the plaintiff demanded of the defendant that it carry out the agreement to lay the sidewalk. There was evidence for the defendant as to the grading of the streets and planting of trees, and to the effect that the failure to lay the sidewalk in front of this property was due to war and labor conditions; that when the war came on the defendant did not have any demand for this class of property; that building material was so high and labor so scarce that it would not be economical and would be almost impossible to do the work; that it had laid sidewalks within a block of this lot, but quit and had not laid any since. The court, at the conclusion of the evidence, directed a verdict for the plaintiff, for the amount sued for, and the defendant excepted.</p>

<p>The order sustaining the demurrer to the petition and allowing a stated time in which to amend it, to which no exception was taken, fixed the law of the case; and the plaintiff’s amendment having failed to meet the objections raised by the demurrer, the court did not err in dismissing the petition, on oral motion Of the defendant when the case came up for trial.</p>

<p>Complaint; from city court of Thomasville-—-Judge W. II. Hammond. January 26, 1920.</p> <p>Pitts Shoe Company - sued Stein on an account consisting of items of shoes furnished in February and April, 1918, aggregating $262.80, upon which was a credit of $100, dated May 4, 1918. The defendant in his answer denied indebtedness, and in the 4-th paragraph alleged that there was no agreement upon the prices or value of the shoes, that their fair market value was not more than $50, and that the pajunent of $100 credited on the account was in excess of the market value, to the extent of $50; for which sum the defendant prayed judgment against the plaintiff. The remainder of the answer was in substance as follows: (Paragraph 5) In January, 1918, it was agreed between the defendant and the plaintiff’s salesman, who was endeavoring to sell to him leather shoes for the plaintiff, that the plaintiff might ship to the defendant leather shoes corresponding in quantity to those listed in the account sued on; but the plaintiff did not thereafter ship any leather shoes to the defendant, and instead shipped a like quantity of shoes made of 'paper and of other inferior material, so painted, varnished, and manufactured as to have the appearance of genuine leather shoes, this being done for the purpose of deceiving the defendant and all other purchasers; that the defendant received them in the first week in May, 1918, 'and paid the $100 credited on the account, believing that they were genuine leather shoes; that the plaintiff’s fraud could not have beer discovered by the exercise of diligence; that there was no meeting of minds or contract between the plaintiff and the defendant respecting the particular goods in question, and, even if the facts might be held to amount to a contract, the contract was voided by the said fraud; that immediately on learning the character of the goods, the defendant offered to restore them to the plaintiff, and on October 14, 1918, he notified the plaintiff that he held them subject to the plaintiff’s order. Because of the facts stated in this paragraph he prays judgment against the plaintiff for the $100 paid to the plaintiff. (Paragraph 6) The goods were ordered, as the plaintiff knew, for the purpose of placing them in the defendant’s stock of merchandise in his store, for sale at retail to his customers, and, as a part of the said transaction, the plaintiff represented and warranted them to be merchantable and reasonably suited for that purpose, and the defendant received them for that purpose, trusting in the said representation and warranty, but they were not merchantable, would break on being used, and would come to pieces on getting wet and were ¡wholly useless and worthless; that on learning their true character the defendant notified the plaintiff thereof and offered to return them, and he is still willing and ready to do so; that by reason of the facts stated in this paragraph the consideration for the plaintiff’s account has totally failed; and, further, the said breach of the plaintiff’s implied warranty precludes any recovery by the plaintiff. The defendant therefore prays judgment for the $100 paid on the account. (Paragraph 7) On October 14, 1918, defendant notified plaintiff that he held the said goods subject to plaintiff’s order, and would charge and expect the plaintiff to pay storage for them from October 15, 1918, but the plaintiff failed to order their return or any other disposition of them; and the defendant prays judgment against the plaintiff for the reasonable value of storing them, alleged to be $5 per month.</p> <p>There was a general demurrer to the answer, and paragraph 4 was demurred to on the grounds, that it stated no fact to sustain the allegation that the shoes were not worth more than $50, and that it amounted merely to a conclusion of the pleader; that it failed to state how many pairs of shoes were received, their value, or any facts upon which a jury could legally allow a deduction from the amount of the plaintiff’s claim. Paragraph 5 was demurred to on the grounds, that it failed to show when the shoes were received, or that the defendant inspected them or made any effort to discover defects, and failed to show why the deception could not be discovered except by wearing the shoes; and that it did not appear that he made any complaint of them before October 14, 1918. Paragraphs 6 and 7 were demurred to on the grounds, that in the main they stated only conclusions of the pleader and were " only repetitions of his troubles complained of in paragraphs 4 and 5,” and' were hot sufficiently definite in particulars stated in the demurrer.</p> <p>The verdict was "for the defendant.”</p>

<p>Complaint; from city court of Waynesboro — Judge Davis. January 24, 1920.</p> <p>In the brief of counsel for the defendant it is contended that no cause of action is shown, because it does not appear that a sale was consummated or that there was a mutually binding contract between the defendant and the prospective purchaser.</p>

<p>Under the decision of the Supreme Court in this case (Anderson v. American National Bank of Macon, 149 Ga. 798, 102 S. E. 534), the court below properly overruled the general demurrer to the first count of the plaintiff’s petition, but erred in overruling the general demurrer to the second count.</p>

<p>1. “ In an action for damages based on porsonal injuries, where under' the pleadings and the evidence there was an issue whether the injuries were permanent or temporary in character, and the judge instructed the jury relatively to the measure of damages applicable to a case where the injuiy was permanent, but omitted to give instructions as to the measure Of damages that would be applicable if the injury were not permanent, such omission, even without proper request for charge, would be cause for reversal. Central Railroad &c. Co. v. Dottenheim, 92 Ga. 425 (17 S. E. 662) ; Central of Ga. Ry. Co. v. Johnston, 106 Ga. 139 (32 S. E. 78) ; Southern Ry. Co. v. O’Bryan, 112 Ga. 127 (37 S. E. 161) ; Western & Atlantic R. Co. v. Smith, 145 Ga. 276 (88 S. E. 983); A., B. & A. Ry. Co. v. Barnwell, 138 Ga. 569 (75 S. E. 645) ; Western & Atlantic R. Co. v. Knight, 142 Ga. 801 (83 S. E. 943) ; Western & Atlantic R. Co. v. Roberts, 144 Ga. 250 (86 S. E. 933). In the first four of the cases just cited the motions for new trial expressly alleged that the damages were excessive, but the rulings made did not in any wise refer to that fact. In the last four cases, where similar rulings were made, the motions for new trial did not allege that the damages were excessive.”</p> <p>2. “In Central Railroad v. Harris, 76 Ga. 501 (only two of the three Justices presiding), it was said: ‘No complaint of excessive damages is made, and therefore it is immaterial what measured them.5 This ruling has been followed and applied by the Court of Appeals in the following cases: Gainesville Midland Ry. v. Jackson, 1 Ga. App. 632 (57 S. E. 1007) ; Gainesville & Northwestern R. Co. v. Galloway, 17 Ga. App. 702, 703 (5) (87 S. E. 1093). We do not concur in the correctness of the decision in 76 Ga. 501, and decline to follow it.</p> <p>3. “ Applying the law as above announced, the Court of Appeals erred in affirming the judgment of the trial court refusing to grant the railroad company a new trial on the ground of failure to instruct the jury as to the measure of damages when not permanent.” 150 Ga. 37 (102 S. E. 439). See 23 Ga. App. 621.</p>

<p>Conviction of fornication; from Appling superior court — Judge Highsmith. May 10,1919.</p>

<p>Indictment for larceny of automobile; from Crisp superior court — Judge Gower. September 26, 1919.</p>

<p>Indictment for larceny of automobile; from Crisp superior court' ■—Judge Gower. September 26, 1919.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Indictment for bigamy; from Forsyth superior court — Judge Morris. November 1, 1919.</p>

<p>Indictment for burglary; from Bibb superior court-—-Judge Graham presiding. December 11, 1919.</p>

<p>Action for damages; from Floyd superior court-—Judge Wright. December 16, 1919.</p>

<p>Indictment for misdemeanor; from Calhoun superior court — Judge Harrell. December 3, 1919.</p>

Indictment for misdemeanor; from Taliaferro superior court — Judge Walker. November 28, 1919. The sheriff testified that in a swamp about 400 yards from the house of Felix Alexander (the defendant) they found “a lard can still apparatus and a barrel of mash such as is used in making liquor.” Felix Alexander’s field that he cultivated ran up to 50 feet of where they found the still on one side; on the other three sides the witness did not know whose land it was.

<p>Indictment for misdemeanor; from Taliaferro superior court — Judge Walker. November 28, 1919.</p> <p>It was testified that sprouted corn malt, such as is used for making liquor, was found in the buggy shelter of John Atkinson (the defendant), and that there was a still making liquor in the edge of a swamp or thicket about 350 yards behind his house and about 100 yards from the edge of his cotton field; it was about as far from his house as from the house of his father, Henry Atkinson. A witness for the State testified that he supposed the still was on John’s land or land he controlled, but that he (the witness) had no means of knowing this “except general appearances and the fact that his cotton field ran near there.” The defendant in his statement at the trial said that the still was not on his land or on land that he had control of, and he had nothing to do with the 'still, and that his farm was rented from his father. Henry Atkinson testified that the defendant “had no control or rights as to the woods where the still was found.”</p>

<p>The ’evidence did not authorize a finding that the accused had intoxicating liquor in his possession or control, and the conviction must be set aside.</p>

<p>Where in defense to the payee’s suit on promissory notes the maker testified that when one of the notes became due, a certain bank holding them as collateral security sued out, as transferee, an attachment against him which was levied on certain restaurant fixtures in his possession for which the notes had been given, and he surrendered the fixtures to the bank upon its agreement to turn over the' notes to him, which it failed to do, and where the plaintiff testified in rebuttal that he had never authorized the bank to sue upon the notes, and that his own note, for which the notes sued on were held as collateral, was paid by him and the notes sued on were returned to him by the bank before his note became due, and that nothing was ever paid him on the notes sued on, a verdict for the plaintiff was authorized. If the defendant was defrauded by the bank, his remedy was against it and not against the plaintiff.</p>

<p>Indictment for misdemeanor; from Taliaferro superior court — Judge Walker. December 12, 1919.</p> <p>1. The indictment charged that on January 8, 1919, the defendant “did knowingly permit and allow and did have and possess and locate on his premises apparatus for the distilling and manufacturing of spirituous, vinous, malted, fermented, and intoxicating liquors and prohibited liquors and beverages, contrary to the laws of said State,” etc. The demurrer was on tlie following grounds: (1) The indictment does not describe the premises on which it is alleged the apparatus was located. (2) The nature and kind of apparatus is not described. (3) No crime is charged, for the liquors described are such as are defined in the act of the General Assembly approved November 17, 1915, and not those described in the act of March 28, 1917, which makes it a misdemeanor to allow the location on one’s premises of apparatus for the manufacture of liquors. (4) The indictment charges the defendant with having apparatus such as is defined in the act of November 17, 1915, and “said allegation sets out no crime under the law.” (5) The act approved March 28, 1917, under which the indictment was found, does not make it a crime for a person to have for himself such apparatus on his premises, but instead makes it a misdemeanor for him to permit any one else to have or locate such apparatus on his premises. (6) “Because said indictment sets out no crime punishable by law against this defendant, for the reason that defendant is indicted under section 22 of the act of the General Assembly of Georgia approved March 28th, 1917, and because said section 22 of said act contains matter different from what is expressed in the title of said act. Said portion of said act is unconstitutional in that it is in violation of paragraph 8 of section 7 of article 2 of the constitution of Georgia, said section dealing with the validity of the laws enacted by the General Assembly of Georgia.”</p> <p>2. The following instructions to the jury were complained of: “TJnder this law the State has to show you, before you would be authorized to find th'e defendant guilty (and show you beyond a reasonable doubt), that this defendant did have or possess, or that there was located on his (the defendant’s) premises, some kind of apparatus for the distilling or manufacturing of such liquor and beverages as set out in the indictment. If you should find there was apparatus for the purpose of distilling or manufacturing liquors and beverages as specified in this act, but you find they were located on premises other than the premises of the defendant, you could not find the defendant guilty under this indictment. If you find there was such apparatus of the kind aforestated, for the purpose of making liquor, and from the evidence and the description of the place where it is located you have a reasonable doubt in your mind (which reasonable doubt will be explained to you in my further instructions) whether or not it was on the defendant’s premises, or if he was in actual control of it, if you have a reasonable doubt about that, you must give the defendant the benefit of that doubt and acquit him.” It was alleged that “said charge was error for the reason that it instructs the jury that the State could make out a prima facie case against the defendant by showing a still to be located on his premises, when the law does not make him prima facie guilty unless the evidence shows the still to have been located on premises of which the defendant was in ‘ actual possession.’ The court nowhere instructs the jury in this charge that the burden would not rest upon the defendant of showing his innocence, even though the premises belonged to him, if he was not in ‘actual possession ’ of the premises, and there is no law placing the burden on the defendant of showing his innocence, even though distilling apparatus is located on his premises, unless the defendant be in ‘actual possession’ of the same.”</p> <p>3. The sheriff testified: that at a spring about 150 or 200 yards from the house of Tom Edwards (the defendant), in January, 1919, he found an old lard can, which was smoked and black on the outside, and something resembling mash, and found hidden in the woods near the spring a cap for this can, which was an ordinary lard-can top with a piece of wood fastened to it for a pipe to go into. He found also a 5-gallon keg with a hole bored in the top and one in the side at the bottom, and a kit in which some one had had fire, and a tub with a little more than a double handful of mash in it. It seemed to be corn meal and syrup mash and to have been in the tub for some time. Traces of barrels were on the ground, and there was a fresh wagon track leaving the defendant’s house and going straight down to this spring, and it turned around there and went oil in another direction. The spring is on land belonging to Mr. J. H. Battle and not in cultivation, and several of his tenants live near it; and the witness could not swear that the defendant had anything more to do with .the land on which the spring was situated than three or four other tenants, or that it was actually in the defendant’s possession or control, though he thought that the spring was on the defendant’s premises. There was a path leading from the defendant’s house towards the spring, and an old road went by his house and on down to the spring, and this path went out around his garden and into the old road about 100 yards from the spring. Another witness testified substantially to the same effect, and that the defendant cultivated a small patch of land between the spring and his house, which came down within 150 yards of the spring. There were bushes and shrubbery between this cultivated land and the spring. There was testimony for the defendant to the effect that the spring referred to by the preceding witnesses was on land not rented to the defendant, and that he had nothing to do with it and got his water from a well at his house. He stated that he knew nothing of the lard can and other things found by the sheriff.</p>

<p>Action for „ damages; from Chatham superior court — Judge Meldrim. November 12, 1919.</p>

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

Complaint; from Liberty superior court — Judge Sheppard. December 18, 1919. David. L. Chapman was sued by the Georgia Land & Securities Company on certain promissory notes purporting to have been signed by him and payable to Silas W. Ferguson, one for $1,200 principal and others for interest thereon, dated July 15, 1916, to secure which, it was alleged, he executed a conveyance of certain land to Ferguson.

<p>Action for damages; from Wilkinson superior court — Judge Park. November 26, 1919.</p>

<p>Indictment for assault with intent to murder; from Morgan superior court — Judge Park. December 20, 1919.</p>

<p>Indictment for sale of liquor; from Jones superior court'—■ Judge Park. December 20, 1919.</p>

<p>Accusation of larceny; from city court of Brunswick — Judge Krauss. December 23, 1919.</p> <p>Larceny of a handbag of 0. L. Wright was charged in the accusation. He testified that on September 18, 1919, at 5:30 o’clock in the morning, he left Ms suit-case in his room at the house in which he boarded, and that when he returned at noon it was gone, and he never saw it again; he saw Willie Adams, the defendant, who was one of the other' persons living in the house, and asked him about the suit-case, and Adams said he knew nothing about it, but believed ho knew somebody who did know. Mrs. Griffin testified that she “ran the house” in which Wright and Willie Adams roomed, and she remembered seeing the suitcase in Wright’s room when her daughter was cleaning up the room on the day on which the suit-case disappeared; that she left her daughter in the room and went down stairs, and Willie Adams was then up stairs in his room; she did not know when he left the house; he never came back after that day; when he was working he left the house early in the morning; she did not know whether he was working then or not; her house was a rooming house. ' A policeman testified, that he went to a certain house to arrest the defendant and found him asleep, and told him he was under arrest, and he said: “I know what you are after me about; it is about that suit-case; I did not take it, but I know who did;” that the defendant said no more, and was taken to jail; that the arrest was in the latter part of October, and the witness had then and for a considerable time before that time a warrant for his arrest; the defendant had run on seeing the witness before that time. No additional witness testified. The defendant, in his statement at the trial, said that he left Mrs. Griffin’s house early in the morning of the day on which they said the suit-case was stolen, and he carried Arthur Brown’s grip to a designated place and went to his work; he returned from his work about 6 o’clock, was asked about the suit-case by Mrs. Griffin, and told her that he knew nothing about it; when he went to his room that night he found that his bed had been taken down, and he left and did not return; from that time he stayed at his mother’s house, where he was found at the time of his arrest; he told the officer that he did not take the suit-case, but knew who did, and that when he got before the court and told what kind of house they were running they would know who got the suitcase; he did not know that this particular one got it, but believed that some one allowed in the house got it.</p>

<p>Indictment for sale of liquor; from Glascock superior court — Judge Walker. December 12, 1919.</p>

<p>Indictment for murder; from Putnam superior court — Judge Park. December 20, 1919.</p>

<p>Conviction of manslaughter; from Crawford superior court — Judge Mathews. December 19, 1919.</p>

<p>Indictment for assault with, intent to murder; from Berrien superior court — Judge Dickerson. January 10, 1920.</p>

<p>Accusation of misdemeanor; from city court of Brunswick — Judge Krauss. November 22, 1919.</p> <p>Tbe accusation charged that the defendant maliciously shot and maimed a described male cow of Mrs. Ii. Wiggins. It was testified that the described animal was shot with a shotgun by the defendant, in the side and foreshoulder and in the testicles, and lay around in the pen for three or four days and was treated for the wounds; that the testicles were bloody and swollen, and “he can not serve the cows.” There was a verdict of guilty, and the case came to this court on exceptions to the overruling of a motion for a new trial.</p> <p>1. An amendment changing the date of signing the accusation from the 9th to the 10th of May (the date of the affidavit on which the accusation was based) was allowed, over objection; and exception to this is taken in the motion for a new trial.</p> <p>2. The court charged the jury as follows: “The State of Georgia, in the manner and form provided by law, has charged and accused the defendant . . with the offense of misdemeanor, alleging in substance that the defendant did, in the county of Glynn, on the day named in the indictment or accusation, on April 10th, 1919, maliciously shoot and maim a certain male cow or bull.” In the 5th ground of the motion for a new trial it is alleged that this was error because, “ under the section under which the defendant was accused, it was not in violation of law to shoot a male cow or bull.”</p> <p>3. The court charged: “If you find, from the evidence, that the defendant did maliciously shoot said bull in his private parts, balls, or testicles, and that rendered him less able to perform the functions of a bull as nature had endowed him before that time, then I charge you that if you find that condition to be true, such would be a maiming of the bull as required by the law to be shown; and in that event it would be your duty to find the defendant guilty.” In the 6th ground of the motion for a new trial this is alleged to be error because it was iu effect an instruction that if the injury was only for a day¿ and to the slightest extent rendered the bull less able to perform, it would amount to maiming, whereas the word "maim," as defined by law-writers and as used in the law of this State, is the infliction of some permanent injury.</p> <p>4. The alleged newly discovered evidence was in substance that six or seven-days after the shooting of the bull of Mrs. Wiggins as claimed by the State, the same bull was seen in the woods feeding, and appeared to be all right; that ten days or two weeks after the alleged shooting the bull served one of the cows in a certain pen, and three or four days later he served another cow, and that at the time he served these cows he was not maimed in any way.</p>

<p>Indictment for assault with intent to murder; from Hancock superior court — Judge Park. January 2, 1920.</p>

<p>Indictment for larceny of hog; from Tift superior court — Judge Eve. January 10, 1920.</p>

<p>Indictment for violation of prohibition law; from Bryan superior court — Judge Sheppard. January 3, 1920.</p>

<p>Certiorari; from Chatham superior court — Judge Meldrim. January 13, 1919.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Under the pleadings and the facts in this ease, upon which it was sought to recover for personal injuries received in stepping from a railroad train, the verdict rendered for the defendant was demanded by the evidence; and the motion for a new trial was properly overruled.</p>

<p>Action for damages; from Wilkes superior court—-Judge Walker. September 5, 1919.</p> <p>Certain mules were shipped from Atlanta, Ga., to Washington, Ga., at a special rate lower than the regular tariff rate, and under a special contract which provided that “the party of the second part, in consideration of the special rate hereinbefore provided and of the transportation of said animals as aforesaid, hereby covenants and agrees that he will indemnify and save harmless the railway company against any and all claims of any persons against the railway company arising out of loss or damage to said live stock while being transported, except such liability Us shall accrue by reason of the gross negligence of the railway company, its servants and employees.” One of the mules was found dead, with his neck broken, in the car, while at Barnett, where the car containing the mules was transferred from the main line of railway to the Washington branch. The station-agent at Barnett, who found the mule dead in the ear, testified in part as follows: “This car was not moved at all between the time it was placed on the side-track and the time it was coupled to be placed in the train going from Barnett to Washington. Between the time of arrival of the car* at Barnett and the time of its departure from Barnett it was not subjected to any rough handling. In fact it was not moved at all until coupled to and pulled in Washington-branch train by Conductor Oslin. There were no trains on this particular track while the car was stopped at Barnett. I was station-agent and was in position to observe the movements of trains had there been any.” The conductor in charge of the train from Atlanta to Barnett testified: “I made an examination of this car of live stock before my train left Atlanta, by looking at the stock from the outside of the car, and all the animals were standing and they appeared to be in good condition. I looked at the animals at every stopping place en route, and always found the stock standing and apparently in good condition. When my train reached Barnett this car was placed on the side-track and left for the Washington branch. I did not examine the stock when we reached Barnett. In the journey from Atlanta to Barnett nothing unusual took place in reference to the movement and handling of the train. Neither did my train nor the car [containing the mules] meet with any accident, nor was there any collision or derailment of the car inquired about, or of the train, or any portion of the train; nor, during the journey inquired about, • was there any unusual, violent or unnecessary movement or jerk, stop, or starting of the train. In the process of taking this car out of the train, at Barnett and placing it on the side-track at that point this car was not subjected to any rough treatment or rough handling, nor did it have any collision or derailment, nor was it started,, stopped, or jerked in any unusual, violent, or unnecessary manner.”</p> <p>There was a verdict for the plaintiff, followed by a motion for a new trial, which was overruled.</p>

<p>Complaint; from city court of Atlanta—Judge Reid. September 5, 1919.</p> <p>Suit was filed July 7, 1919, on a note dated June 1, 1917, and payable “one year after date or as soon as J. B. .Crawford’s estate is wound up.” A demurrer was filed by the defendant as follows: “She especially demurs to said petition because it does not allege whether or not J. B. Crawford’s estate is wound up; as suit cannot be maintained without such an allegation and proof thereof.” The demurrer was overruled. The defendant filed a plea in which she admitted the signing of the note, but denied that it was due, for the reason that she called the attention of the attorney for the plaintiff to the fact that she could not pay the claim prior to the closing up of the Crawford estate, and that he agreed that 'the note should be so drawn, and when this agreement was reached “ she left the wording to plaintiff’s attorney, he being a lawyer and familiar with the construction of legal phraseology, and never doubted but that the wording used in the note meant just what they had agreed to,— that the note should not become due until said estate was wound up.” By amendment she alleged “that the estate of J. B. Crawford has not been wound up or closed, as was contemplated by the parties it should be before said note should be due.” The judge passed the following order: “Upon motion of plaintiff’s attorney, made in open court, the within plea and the, amendment thereto is stricken except the admissions contained therein, for the reason that the same sets up no legal defense to the note sued upon.” The defendant excepted to the overruling of the demurrer and to the order striking the plea as amended.</p>

<p>A ease was tried on August 5, and the court adjourned on August 8. A bill of exceptions was tendered to the judge on September 6, and on that day mailed by him to the attorney for the plaintiff in error, for correction. It was not returned to the judge until September 27. The certificate of the judge does not show any reason for the delay in again tendering the bill of exceptions for certification. Held, that the writ of error must be dismissed.</p>

<p>Complaint; from city court of Savannah — Judge Freeman. July 28, 1919.</p> <p>The Liberty Banking Company sought to recover from the Chat-ham Bank & Trust Company the amount of a cashier’s check issued by the defendant and payable to the order of C. W. Smiley. The check was issued in behalf of a depositor, to be used in a loan to the payee, and was sent by an agent of the depositor to an attorney, who, by means of a forged indorsement of the payee’s name, obtained the money on it from the Liberty Banking Company, and that company, through an intermediate bank, collected it from the defendant bank, and, after the forgery had been discovered, reimbursed the .defendant, obtained the cancelled check, caused the payee to indorse it “ without recourse,” and then presented it to the defendant with a demand for payment, which was refused. The first count of the plaintiff’s petition is in the form of an ordinary suit on a check, with the addition of a prayer for 25% damages. The second count, after setting out substantially the foregoing facts, proceeds as follows: “Petitioner sues to recover of and from the defendant the amount of said check, paid, laid out, and expended by petitioner to and for the use of said defendant, and, being so indebted, the said defendant undertook and then and there faithfully promised to pay to petitioner the said mentioned sum of money when it, the defendant, should be thereunto afterwards requested.” Demurrers to the prayer for damages and to the second count were sustained. The special ground of demurrer to that count was that it was not alleged that the plaintiff paid anything to C. W. Smiley, ’ or that Smiley was ever in possession of the check, or had any right, title or interest in it, when he indorsed his name on it. The defendant in its plea denied that the plaintiff was a bona fide holder of the check for value, and alleged that Smiley was never the owner or possessor of the check.</p> <p>On the trial the plaintiff introduced in evidence parts of the defendant’s answer, which in substance were as follows: The defendant had on deposit to the credit of Noord Amerikaansche Hypotheekbank certain funds deposited for the purpose of making loans to be secured by deeds to real estate. The Georgia Land & Securities Company had negotiated a loan from these funds to C. 'W. Smiley, to be secured by deed to certain real estate; and the check in question was delivered by the defendant to that company to be turned over by it to Smiley in payment of the loan negotiated with him in behalf of the above-named depositor. It was to be delivered to Smiley on the execution and delivery of a security deed by him, and for this purpose the Georgia Land & Securities Company transmitted the check to a named attorney at law, residing at Ludowici, Georgia. “Defendant does not know whom ” the said attorney “ represented in the transaction; defendant had no connection or relation with him whatever.” The name of Smile}1, the payee, was forged and indorsed on the check, and it was also indorsed below his name by the attorney mentioned, and the attorney presented it to the Liberty Banking Company, which paid it and indorsed it, guaranteeing the prior indorsements, and transmitted it to the Savannah Bank & Trust Company; the latter company made a like indorsement and guaranty, and collected from the defendant the amount of the check, and the check was canceled and marked “paid,” with a punch which perforated the paper. The defendant subsequently discovered that the indorsement in the payee’s name was forged, and demanded and obtained from the Savannah Bank & Trust Company a return of the amount paid, and delivered the canceled check to that company in order to enable it to go back on the Liberty Banking Company, to which it had transmitted the money collected. The Savannah Bank & Trust Company transmitted the cheek to the Liberty Banking Company, and the latter company procured from Smiley an indorsement of the cheek, “without recourse,” and again indorsed it and demanded payment from the defendant.</p> <p>From the testimony of the plaintiff’s cashier it appears that after the canceled check was returned to the plaintiff the cashier took it to Smiley, who said that he had never before seen it, and the cashier induced him to indorse it, assuring him that he would not be liable on the indorsement. No consideration was paid or promised for the indorsement. The loan transaction for which the check was given had never been consummated. The check was never in Smiley’s possession except when it was handed to him by the plaintiff’s cashier for the purpose of signing his name on the back of it. After this witness had testified the plaintiff tendered in evidence the check sued on. The defendant objected to it, on the ground that “-the plaintiff had shown no delivery either to Smiley, or by the bank to him.” No other witness testified. On motion of the defendant the court granted a nonsuit. To this and the other rulings stated the plaintiff excepted.</p>

<p>Appeal; from Campbell superior court-—Judge Smith. August 4, 1919.</p>

<p>Complaint; from city court of Eloyd county — Judge Nunnally. October 31, 1919.</p> <p>On November 1, 1911, a note for $2,544.01 principal, payable on demand, was given to the Citizens Bank of Rome, Georgia, signed by N. C. Hoyt & Company, and by B. C. Yancey and N. C. Hoyt. On January 27; 1915, suit for the amount then due thereon was brought against the signers, and it was alleged that “N. 0. Hoyt & Company is a partnership composed of N. C. Hoyt and Benjamin C. Yancey.” Pleas were filed in behalf of all the defendants, in which they admitted the execution of the note, but alleged, that it was a part of a scheme to evade the usury law enacted in 1908, which made it a misdemeanor “for any one to charge, take or receive, in any manner, directly or indirectly, interest for the use of money at a greater rate than five per cent, per month;” “that said note was prepared by the Citizens Bank, through its president, Sproull Eouché, as a part of a criminally usurious scheme, for the purpose of exacting and securing usury in certain money-lending transactions hereinafter more fully described to the court; that the said note was taken by the said Citizens Bank for the purpose of protecting itself from whatever losses it might suffer in the prosecution of its criminally usurious practices; that the said Citizens Bank not only acted with full knowledge of this criminal scheme, but took active part in it, both by preparing the note sued on as a part of the evasive scheme and by sharing liberally in the bountiful harvest of ill-gotten gains derived as is hereinafter more fully set out and described ; ” that “ by this criminal scheme it' was arranged, and clearly understood both by the said Sproull Fouché, president as aforesaid, and N. C. Hoyt & Company, that the said Hoyt & Company should take notes and mortgages from the borrower and indorse these notes and hand them to the said Citizens Bank; the said bank was to furnish the money, Hoyt & Company to charge the criminal usury, and the said Citizens Bank and N. C. Hoyt & Company were to share in the criminal usury and the proceeds of the criminal act. The usury charged by this evasive scheme ranged from 5% per month to 20% per month, according to the degree of misfortune in which the borrower found himself when forced to resort to this source for funds;” “that defendant can not. herein set forth the names of the makers of all notes handled from said 15th day of August, 1908, to November 1, 1911, nor the amounts of said notes or the interest so charged by said plaintiff, but that the books of plaintiff will show the sums charged and collected by said plaintiff;” that “this defendant charges and believes that the amount of interest charged and retained by said bank, and the amount of discount so charged by said bank, as alleged in the. 6th paragraph of this answer, over and above the legal rate of eight per cent, per annum, was far larger than the amount claimed by plaintiff as due on said note, and that if said excess of interest and discount rate so charged and collected by said bank is applied as a credit on said note sued on, the said note would not only be fully paid but largely overpaid, and defendant entitled to a judgment against said plaintiff for said excess;” “that the exacting, reserving, and contracting for said illegal interest was criminal, and the contract so entered into and the note so taken and now sued on is absolutely void and -can not be enforced in the courts.” Defendants prayed that they “be released from any and all liability which may attach to them under and by reason of this said note sued on, and that petitioner’s suit be dismissed.”</p> <p>On the trial of the ease the plaintiff introduced the note and closed. The defendants introduced evidence to support the allegation in their plea that usurious interest had been'charged, and then made the following motion, counsel stating: “If there was a conflict in the evidence there might be a matter for the jury, but we ask your honor to direct a verdict for the defendants sued here on this note. They offer the note and close, and the defendants attack the note, not only [for the reason] that it is usury, but it is absolutely a crime, illegal. All the evidence, except the mere introduction of the note, and there is no contradiction of the defendant, and he says they got together, the proposition was made and discussed, and the whole transaction was between him and the bank. In other words, he was a sort of go-between, between the bank and the borrower.” The court directed a verdict for the defendants, and the plaintiff excepted.</p>

<p>Complaint^ from Chattooga superior court — Judge Wright. September 11, 1919.</p> <p>On March 31, 1915, a contract was entered into in which McConnon & Company agreed to sell to George W. Parker certain “medicines, extracts and other articles manufactured by” McConnon & Company. Attached to the contract was the following agreement: ■ .</p> <p>“In consideration of the sum of one dollar to us severally in hand paid by McConnon '& Company, the receipt whereof is hereby acknowledged, and the execution of the within agreement by said company, and the sale and delivery by it to the party of the second part, of its medicines and other articles, we, the undersigned, securities, do hereby jointly and severally promise and guarantee the full and complete payment of said medicines, extracts and other articles, at the time and place and in the manner as in said agreement provided.</p> <p>“L. M. Murphey. (Seal.) L. B. Stanfield. (Seal.) “Surety sign here. M. A. Kellett.- (Seal.)</p> <p>“D. P. Henley. (Seal.) (Guarantors sign in ink on</p> <p>“Surety sign here. above lines.) ”</p> <p>McConnon & Company sued Stanfield, Kellett, Murphey, and Henley, alleging in part: “Petitioner shows that heretofore, to wit, on the 31st day of March, 1915, your petitioner entered into, a contract with one George W. Parker, then a resident of said State and county, under which your petitioner undertook to sell to the said Parker certain wares, goods, and merchandise,' which the said Parker agreed to pay for in accordance with the terms of said contract, a copy of said contract being hereto attached, marked Exhibit A, and made a part of this petition. Petitioner shows that the defendants hereinbefore named thereupon executed to your petitioner a contract of guaranty or suretyship, guaranteeing to your petitioner the payment for all goods, wares, and merchandise sold to said Parker under said contract, a copy of said contract of guaranty or suretyship being hereto attached, marked Exhibit B, and made a part of this petition. Your petitioner shows, that, acting upon said contract with said Parker and upon said guaranty and suretyship of said defendants herein, your petitioner sold and delivered to said Parker goods, wares, and merchandise in the sum of $202.63; that the said Parker has paid thereon the sum of $18.00, leaving a balance due your petitioner in the sum of $184.63, which said Parker fails and refuses to pay, 'and for which said amount said defendants are indebted to your petitioner, under their said contract, by reason of the default of the said Parker to pay said amount; a copy of said account being hereto attached, marked Exhibit C, and made a part of this petition. Petitioner shows, that it has fully complied with the terms of said contract with the said George W. Parker, and also with the defendants in this case; that it has made demand for the payment of said amount, but that said amount remains due and unpaid. Petitioner shows, that it is thought that said Parker is not now a resident of said State and county, 'and his whereabouts are unknown to your petitioner, though your petitioner is advised and believes that he is now a non-resident of the State of Georgia and without the jurisdiction of this court.” Demurrers to the petition were filed, and after it had been amended to meet one of the special demurrers the demurrers were overruled and the case proceeded to trial.</p> <p>The plaintiffs' tendered in evidence certain interrogatories executed in the State of Minnesota. To the reafiing of these inter-' rogatories to the jury the defendants filed written objections, and also “orally objected to the introduction of said depositions, upon the following constitutional grounds: that the introduetion of the same would contravene and deprive defendants of their rights under sections 5699, 5700, 5701, and upon the general ground that the act providing for the taking of such depositions out of the State by notary public upon the mere notice to be present at the place in a foreign State and upon the day mentioned is contrary to public policy.” These objections were overruled.' When all the evidence was in, the court directed a verdict for the plaintiff.- The defendants excepted.</p>

<p>Garnishment; from Lumpkin superior court — Judge J. B. Jones. October 23, 1919.</p>

<p>Conviction of shooting at another; from Bibb superior court — Judge Graham presiding. December 11, 1919.</p>

<p>Trover; from Echols superior court — Judge Thomas. October 4 1919.</p>

<p>Indictment for misdemeanor; from Taliaferro superior court — Judge Walker. November 28, 1919.</p>

<p>Indictment for manufacture of liquor; from Randolph superior court — Judge Harrell presiding. November 11, 1919.</p>

<p>Indictment for misdemeanor; from Taliaferro superior court — Judge Walker. November 28, 1919.</p> <p>The indictment charged that on July 15, 1918, Son Alexander “did knowingly permit and allow and did have and possess and locate on his premises apparatus for the distilling and manufacture of spirituous, vinous, malted, fermented, and intoxicating liquors and prohibited liquors and beverages.” The sheriff testified, that on July 15, 1918, he and W. C. Chapman went to Son Alexander’s house and then went down to a.spring about 250 yards from his house and found two barrels of mash use.d in making liquor, and a lard-can still for making liquor; that this mash was about 50 feet from the spring up the branch, and the lardean still was some 30 feet from the spring down the branch. “ Son Alexander’s hog pasture ran about half way from the house to the spring, and from there on it was a swamp. I know all this was on Son Alexander’s farm and place, because I had seen him cultivating the land between the house and the spring, and had seen him working on the other side of the spring, down the branch. I don’t know just where Son Alexander’s farm lay, but I had seen him plowing on the southwest side of the branch beyond the spring.” W. 0. Chapman testified that the apparatus was found as stated by the sheriff; he did not know of his own knowledge where Son Alexander’s land or farm ran to, or whether the still apparatus was on his farm, but supposed it was. The defendant, in his statement at the trial, denied that the apparatus found by the officer was on his land, and said that his land went no further than the hog pasture, and he had no control over the land beyond that.</p>

<p>Indictment for manufacture of liquor; fi court — Judge Sheppard. November 28, 1911</p> <p>An. indictment returned on July 10, 1919, charged that on the 7th day of June, 1919, the accused “did unlawfully distill, manufacture, and make alcoholic, spirituous, vinous, malt, and mixed liquors and whiskeys, which, if drunk to excess, would produce intoxication.” The accused was tried July 15, 1919. The sheriff testified: “ I know the defendant, Charlie Clark. I recently arrested him at his home in Tattnall county. It was on Sunday I arrested him, in the afternoon. I saw a still right there on the place. As to how long ago I was at the home of Charlie Clark and arrested him, it was something right about the first of June, about the 6th or 7th, somewhere along there.” Wallace Clark, son of the defendant, testified: “I know Charlie Clark. He is my father. I know about his having a whisky still there on his place. He had it on the edge of the branch there. I seen him operating that still. . . He was making whisky. . . I seen him making that whisky five or six times. I helped him make it. . . As to how long it was that my father was making whisky down there, it was about a week after he come home from the farm, Perry Jenkins’ farm. As to whether that has been four or five months, he come home since the middle of March. It was since then that I seen him making the whisky.” The defendant was convicted, and filed a motion for a new trial, the grounds of which, besides the usual general grounds, were as follows: “ Because the evidence in said case fails to show that the offense charged was committed since the passage of the act of March 28, 1917, under which the indictment w'as found, as shown in the charge of the court.” “Because the evidence fails to disclose that said offense was committed within the statute of limitations, and that it is not barred by the same.” “Because the court erred in charging the jury that if they found that the defendant had committed said offense ‘at any time after the 28th of March, 1917/ they would be authorized to convict, when said charge should have limited the same to a date prior to the date of the indictment.”</p>

<p>Indictment for assault with intent to murder—conviction of shooting at another; from Eulton superior court. — Judge Humphries. December 6,1919.</p>

<p>Conviction of shooting at another; from Jones superior court —.Judge Park. December 27, 1919.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Indictment for misdemeanor; from Ben Hill superior court— Judge Gower. January 15, 1920.</p> <p>The indictment 'alleged that J. G. Minshew, in Ben Hill county, in this State, being a justice of the peace in and for that county, “did join together in matrimony one George J. Minshew and Letha Luke without a license 'as provided by law; that is to say, the said J. G. Minshew performed said marriage ceremony under a license issued by the ordinary of Turner county, said State, he, the said J. G. Minshew, well knowing that the said Letba Luke was then and there a resident of Ben Hill county, said State, and the said Letba Luke was at the time a resident of Ben Hill county, contrary to the laws of said State,” etc. The demurrer was on the grounds: (1) No offense is set forth.</p> <p>(.2) No facts are alleged which would show that the marriage was illegally performed. (3) Under the facts alleged the marriage ceremony was legal. (4) It is not alleged that at the time of the issuance of the license the female was a resident of a county other than that in which the license was issued; but even were it so alleged it could not be the basis of a criminal charge against the marrying officer, because the right to issue the license is a matter for judicial determination by the ordinary issuing it, and not subject to review by any officer authorized to perform a marriage ceremony. (5) No disability to contract marriage is alleged; “the ‘other disability’ referred to in the code section defining such offense meaning any other disability of the same class as idiocy or lunacy, whereby a party would be totally incapacitated to contract marriage, and absence of license entirely does not constitute such disability.” (6) It is not alleged that there was no publication of banns.</p>

<p>Indictment for larceny from house; from Monroe superior court—.Judge Searcy. January 10, 1920.</p>

<p>A conviction of the offense of making intoxicating liquor was not authorized by the evidence in this case, from which it appeared that the’ accused was discovered at a still where evidently some one had recently been making liquor, and that he had in his hand a cup from which he was drinking, and that when he heard and saw the witnesses he threw down the cup and started to run, and he did not stop, \yhen told to do so.</p>

<p>Indictment for possession of liquor; from Glascock superior court — Judge Walker. December 12, 1919.</p>

<p>Indictment for burglary; from Wilkes superior court — Judge Walker. December 13, 1919.</p> <p>Jenks Welborn, alias Jenks Eaver, was convicted of burglary, under an indictment which charged that he broke and entered the dwelling house of Eich Hurley and stole corn and cottonseed stored there. In the brief of his counsel it is contended that the conviction was unauthorized because no other evidence than that of an alleged accomplice connected him with the crime. The State relied on testimony as to tracks, to corroborate the testimony of that witness. The alleged accomplice was Tomps Burns, who testified, that he and Jenks Welborn and Mr. Jamie Young went at night to Bich Hurley’s pen near Hurley’s house and got a white and black spotted pig of Hurley’s out of the pen, and he (the witness) and Jenks went through a window into the house, pulling the window open by a string that it had on it, while Young was outside watching for them, and that they got about 15 bushels of corn, cottonseed, a shotgun, a pitchfork, and a saw, and carried the corn, cottonseed, and other things in baskets to Young’s house, hauling them in a wagon; that no one else was in the house from which the things were taken, and that he (the witness) pleaded guilty and was serving a sentence for the offense. Bich Hurley testified that in his absence on a Saturday night the house was broken into and cottonseed, corn, a shovel, a shotgun, two bushels of meal, two baskets, and a hog were taken. “ They went in at the window, right at the chimney. I saw tracks out there. They looked like three different shoe tracks. There was one that looked like a 5 or a 6 shoe, another that looked like an 8, and then 'a big one, about 10 or 11. I saw a wagon track where they turned around down there. . . The wagon track was about 100 yards from the house where they turned around, where they stopped and the stuff was carried down there and put in the wagon. . . I just saw three sets of tracks there. I did not know whose tracks they were. I did not search this man’s house. . . I investigated 'all I could. . . I said I didn’t have any idea this boy was there.” H. A. Smith testified for the State, that on his mother’s place Bich Hurley worked a farm; that he (the witness) knew about the stealing of the pig, the corn, and the cottonseed; he went to Mr. Young’s and got the pig back, and he got the corn and cottonseed out of Young’s crib; they got the cottonseed from Bich, and the corn looked like Bich’s corn. “ I examined about the pig-pen and house. I went there Sunday morning after that Saturday night. I found three tracks there, . . one track that might have been Mr. Young’s, . . another track about an 8 or a 9, and then a large track. That 8 or 9 would fit Jenks’ track. Then I found a big track that would correspond with Thomps Burns’. . . I don’t know anything else about it, only I know where they had the wagon and buggy in the woods, where they turned around. . . I saw one small track that would correspond to Mr. Young’s, . . then I saw one that looked like an 8 or 9. I don’t know whether it would fit that boy’s track or not. I never saw his feet in my life to notice them.” Harry Smith, sworn for the defendant, testified: “I found this hog up there between Mr. Young’s house and Tonch Burns, . . tied in a thicket between the two houses. I never found anything at Jenks’ house. I did not search it. . . "We found everything at Burns’ and Young’s place. We got the corn out of Mr. Young’s crib. We got the cottonseed out of another crib, right below his house. We tracked them off the plantation: they were going in that direction up the road. It rained that night.” The defendant, in his statement at the trial, said that he wore ’a number 7 shoe, and that he was at home with his wife “ that night they were talking about,” and knew nothing about “ this business.” His shoes were put in evidence by his counsel. A witness testified that the defendant’s wife was her daughter, and that they stayed all night in the same room with her the Saturday night on which Bich Hurley’s hog was stolen. There was conflicting evidence as to the character of the defendant.</p>

<p>Conviction of shooting at another; from Terrell superior -court — Judge Worrill. January 10, 1920.</p>

<p>Indictment for manufacture of liquor; from Macon superior court — Judge Littlejohn. January 7, 1920.</p>

<p>Whether the evidence was sufficient to identify the accused as the person who made the assault was a question for the jury; and this court can not say that the verdict was without evidence to support it.</p>

<p>Complaint; from Tift superior court — Judge Eve. January 8, 1920.</p>

<p>Affidavit of illegality; from Dade superior court — Judge Tarver. March 17, 1919.</p>

<p>Action for damages; from city court of Floyd county-—-Judge Nunnally. June 5, 1919.</p>

<p>Petition for discharge of administrator, from Carroll superior court — Judge Terrell. July 15, 1919.</p>

<p>Action for damages; from city court of Atlanta—• Judge Eeid. September 13, 1919.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Action, for damages; from city court of Cartersville — Judge Aubrey. August 30,1919. .</p> <p>Tye, Peeples & Tye, D. W. Blair, Neel, Finley & Neel, for the railroad company.</p>

<p>Certiorari; from Chatham superior court — Judge Meldrim. July 11, 1919.</p>

<p>Appeal; from Hall superior court-—-Judge J. B. Jones. September 27, 1919.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. October 14, 1919.</p>

<p>The law oí this ease was fixed and determined by the ruling of this court in Corbin v. McCrary, 23 Ga. App. 780 (99 S. E. 472) ; and'therefore the trial judge did not err in dismissing the plaintiff’s written motion, the purpose of which is precluded by the previous decision.</p>

<p>Trover; from Evans superior court — Judge Highsmith. September 8, 1919.</p>

<p>Complaint; from city court of Greensboro-—Judge Brown. October 3, 1919.</p>

<p>(Certiorari was granted by the Supreme Court.)</p> <p>Action for damages; from city court of Savannah — Judge Freeman. October 13, 1919.</p>

<p>Condemnation under liquor law; from city court of Cairo — Judge Eigsby. October 20, 1919.</p>

<p>Complaint; from Newton superior court — Judge Hutcheson. October 25, 1919.</p>

<p>Action for damages; from Fulton superior court-—Judge Bell. October 22, 1919.</p>

<p>Action for damages; from city court of Atlanta-—Judge Beid. October 4, 1919.</p> <p>It was contended on the part of the plaintiff that the action was for malicious abuse of legal process, and therefore that it was not necessary to allege the termination of the litigation. In the' brief of counsel for the defendant it was contended that the action could not prevail as an action for malicious abuse of legal process, because “ no abuse (illegal use) ” of the process was alleged; and that, as it was not alleged that the litigation had terminated, the action was not maintainable as a suit for malicious prosecution.</p> <p>The petition alleged, in substance, that, while in the employ of the defendant company as an automobile salesman, the plaintiff bought from it an automobile, giving for it installment notes in which title to the automobile was reserved in the defendant; that on March 1, 1919, all the notes then matured had been paid, it having been customary for the defendant to retain out of commissions earned by the plaintiff the amount of the notes as they matured, and to apply such amounts to their payment; that on that date there fell due one of these notes in the sum of $26.45, and the defendant at that time admitted an indebtedness to the plaintiff, because of commissions earned by him, in the sum of $25.65, lacking only $2.65 of being sufficient to cover the principal and accrued interest on the notes. The defendant was then indebted to the plaintiff in a sum greater than the amount of the principal and accrued interest on the said note. The defendant, through one Chapman, an officer of the defendant company, told the plaintiff that the defendant had a sufficient amount on hand as commissions due him to pay this note and would apply the commissions then so due him to its payment; and the plaintiff, relying on this assurance, considered the note as paid. At this time the plaintiff had severed his connection with the defendant and was acting as agent of a rival automobile concern, selling automobile trucks in the territory in which the defendant operated. On March 12, 1919, the defendant instituted in the municipal court of Atlanta a bailtrover suit against him for the recovery of the said- automobile, the 'action being predicated on failure to pay the purchase-money note maturing March 1, 1919, mentioned above. On March 19, 1919, at his home and in the presence of his neighbors, he was placed under arrest by two bailiffs of that court, under such bail-trover process. He then, through his attorney, called the attention of the defendant, through one of its officers (named) to -the fact that he was not indebted to it in the 'amount of the said note, but the said officer stated that he had authorized such bail proceedings to be instituted and would let such proceedings continue against him.</p> <p>“Petitioner charges that in causing said bail-trover suit to be instituted against him, and in causing his arrest thereunder, and in persisting in the prosecution of petitioner under such process, the defendant company acted with malice, and with the purpose and desire to injure and damage petitioner, and-to obstruct and embarrass him in his rival business as aforesaid, and not for the purpose of collecting a debt or of securing itself against loss, as falsely claimed in said affidavit for bail process to issue.” Although the defendant had admitted its indebtedness to the plaintiff and had promised to apply such indebtedness in satisfaction of the said note, the defendant, without any warning to the plaintiff, wantonly and maliciously instituted and prosecuted this bail process against him and caused his arrest thereunder. The defendant,' in suing out such bail process, acted without probable cause, in that it knew that the plaintiff was not attempting to eloign or move away the said automobile, and further knew that he was not indebted to it in the amount of the said note or in any amount. The real motive and cause of such process being sued out and arrest made thereunder was to injure and embarrass him as representative of his then employer, and to take revenge upon him because he had left the employment of the defendant and had entered the employment of a rival concern. The defendant, “in thus employing bail process against him wrongfully and unlawfully and for the purpose of injuring him as aforesaid, a purpose not intended by law, was guilty of a malicious abuse of legal process.” He was forced to employ counsel at an expense of $25. For the humiliation of being thus placed under arrest and for having his standing and credit in the community thus impaired, he lays his punitive damages, together with the $25 actual damages as aforesaid, in the sum of $10,000.</p>

<p>Action for damages; from city court of Atlanta — Judge Reid. October 25, 1919.</p>

<p>Action for damages; from Monroe superior court — Judge Searcy. November 8, 1919.</p> <p>Pursuant to an act of Congress of August 29, 1916 (9 Fed. Stat. Ann., 2d ed., 1095), which empowered the President, in time of war, to take possession and assume control of any system or systems of transportation and utilize them for the transportation of troops and materials of war, the President, on December 26, 1917, assumed control of the railroads of the United States and appointed as director-general of railroads William G-. McAdoo (then the secretary of the treasury). An act of March 21, 1918 (Fed. Stat. Ann. Supp. 1918, p. 757), which in detail recited how the control so granted the President should be exercised, provided as follows (see. 10) : “Carriers while under Federal control shall be subject to all laws and liabilities as common carriers, whether arising under State or Federal laws or at common law, except in so far as may be inconsistent with the provisions of this act or any other act applicable to such Federal control or with any order of the President. Actions at law or suits in equity may be brought by and against such carriers and judgments rendered as now provided by law; and in any action at law or suit in equity against the carrier, no defense shall be made thereto upon the ground that the carrier is an instrumentality or agency of the Federal Government.” A general order issued by the director-general on October 28, 1918 (No. 50), provided as follows: “Actions at law, suits in equity, and proceedings in admiralty hereafter brought in any court based on contract, binding upon the Director-General of Eailroads, claims for death or injury to persons, or for loss and damage to property, arising since December 31, 1917, and growing out of the possession, use, control, or operation of any railroad or system of transportation by the Director General of Eailroads, which action, suit or proceeding but for Federal control might have been brought against the carrier company, shall be brought against William G. McAdoo, Director General of Railroads, and not otherwise.”</p> <p>In this case the widow of a person not a railway passenger or employee sought to recover damages for the homicide of her husband, alleged to have been occasioned by the negligent operation of a train at a public grade crossing. The action was originally against the Central of Georgia Railway Company, but by amendment Walker D. Hines, director-general of railroads of the Hnited States, was substituted as defendant, and he demurred to the petition, on the theory that such a suit was not maintainable against the director-general of railroads, because (1) the government is not liable to be sued for the tortious conduct of its employees, except in such cases as are authorized by act of Congress, and at the time of the alleged injury (January 31, 1918) there was no authority from Congress for the maintenance of a suit against the director-general of railroads; and (2) even if General Order No. 50 can be construed as authorizing an amendment making the director-general of railroads the defendant in the suit, the liability alleged in this case is not the liability of a common carrier, which includes only a breach of its duty to transport safely freight and passengers. The demurrer was overruled, and the defendant excepted.</p>

<p>Action on bond; from city court of Carrollton — Judge Beall. November 3, 1919.</p>

<p>Action for damages; from Fannin superior court — Judge Morris. October 22, 1919.</p>

<p>Complaint; from city court of Cairo — Judge Rigsby. November 24, 1919.</p>

<p>Condemnation under liquor law; from Fulton superior court — Judge Humphries. October 30, 1919.</p>

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

<p>Appeal; from Floyd superior court — Judge Wright. January 28, 1920.</p> <p>1. Mrs. Nora Z. Smith applied to the ordinary for a homestead under sections 3377 et seq. of the Civil Code of 1910, and objections were filed by certain creditors. There was an appeal to the superior court by the applicant and on the call of the case her counsel moved to continue the case on account of her sickness. Her husband testified that she was sick and unable to attend court, and had been sick about three days, and that it would be dangerous for her to come to court that day; that the case had previously bee;] continued, and he was in court at the January term, 1918, when the judge announced that the case would not be continued again on account of the illness of Mrs. Smith. In an order granting a continuance at that term it was stated that the case “is continued on the understanding that if the applicant is unable to attend the court at the next succeeding session, then the said applicant’s interrogatories shall be taken before next succeeding term, so that the objectors to the application may be assured of a hearing at the next succeeding term.” It was testified that the case had been continued at least twice on account of sickness of the applicant. Counsel for the applicant stated in his place that he could not safely go to trial without her presence, that he needed her advice in striking a jury, in examining witnesses, and in the general conduct of the case, as well as her testimony in her own behalf. The court overruled the motion for continuance, and directed that the appeal be dismissed for want of prosecution. The case came to the Court of Appeals on exceptions to these rulings.</p> <p>2. The schedule of property which the applicant in her petition asked to have set apart as a homestead included several city lots. One of the objections filed by creditors was that the title to one of these lots was not in the applicant, but in an objecting creditor. The applicant amended the application by withdrawing it as to that lot. One of the objecting creditors then filed a motion that the application be dismissed, because the applicant had amended it by striking from it a considerable part of the property.</p>

<p>Foreclosure; from city court of Dublin — Judge Flynt. February 23, 1920.</p> <p>The Avera Loan and Investment Company filed in the city court an affidavit to foreclose as a mortgage an instrument in the form of a promissory note for $398 principal, with a clause as follows: “I hereby grant, bargain, sell, alien, and convey unto the said” payee “the following described property,” describing certain personal. property. It was attested by a notary public. The plaintiffs bill of exceptions states that “defendant moved orally to dismiss said proceeding, on the ground that plaintiff was proceeding illegally, contending that said instrument is not a mortgage, but a bill of sale. . . Plaintiff asked leave of the court to submit oral testimony to prove the nature and intent of the instrument in question, on the ground that said instrument is ambiguous. If witnesses had been permitted to testify as to the nature and intent of this instrument, they would have testified as follows: that it was the intent of the parties to create a-mortgage lien on the property specified in the instrument; that the creation of a bill of sale 'and the transfer of the legal title to the property was not within the intent or anticipation of the parties; that it was the purpose of the parties to execute a mortgage and that the instrument so executed should operate as a mortgage; that the mortgagee has never been in the actual or constructive possession of the property, and that it was never the intention of the parties that the property should ever be delivered into the possession of the mortgagee. Upon the objection of the defendant, the court refused to allow oral testimony to be submitted. . . The motion to dismiss plaintiff’s proceeding was heard on the following agreed statement of facts: that the property has remained in the possession of the defendant and has at no time been in the actual or constructive possession of plaintiff.” The motion to dismiss the proceeding was sustained, and the plaintiff excepted, assigning error upon each of the rulings stated.</p>

<p>Under the ruling of the Supreme Court in the ease of Robinson v. Central of Georgia Railway Co., 150 Ga. 41 (102 S. E. 532), the court in this ease erred in sustaining the motion to dismiss the suit as to the Atlantic Coast Line Railroad Company. See 150 Ga. 109 (102 S. E. 823).</p>

<p>[a) The allegations of the petition clearly show that the negligence charged against the defendant was not the main, controlling, preponderating, or proximate cause of his injury!</p> <p>(&) “Negligence, to be the basis of recovery, must be the proximate cause of the injury; and if the injury would have occurred regardless of the negligent act, there can be no recovery.”</p> <p>(c) “In a suit for damages on account of personal injuries, brought by a servant against his master, where, among various allegations of negligence, it is charged that the defendant failed to furnish the plaintiff a reasonably safe place in which to work, and it affirmatively appears from the petition that the plaintiff’s injuries were not caused by the character of the place in which he was put to work, or in any manner connected therewith, such an allegation of negligence can not be made the basis of a recovery.”</p> <p>(d) “If the danger be obvious and as easily known to the servant as to the master, the latter will not be liable for failing to give warning of it.”</p>

<p>“ When a revising statute covers the whole subject-matter of antecedent statutes, it virtually repeals the former enactments, without any express provision to that effect. Where some parts of the revised statute are omitted in the new law, they are not, in general, to be regarded as left in operation if ii? clearly appears to have been the intention of the legislature to cover the whole subject by the revision.”</p> <p>(a) It was the evident intent of the legislature that section 10 of the act of 1915 (Ga. L. Ex. Sess. 1915, p. 112) should be exhaustive of the entire subject of regulating the speed of all auto-vehicles and automobiles, and should operate as a substitute for section 5 of the act of 1910 (Ga. L. 1910, p. 92).</p>

<p>Action for damages; from Gordon superior court — Judge Tarver. September 27, 1919.</p> <p>S. A. Jones and others were sued jointly for damages on account of the cutting of a shade tree and the destruction of apart of a fence; and the verdict was against them. From the evidence it appeared that t'he land of Jones was in land lot No. 109 and adjoined that of the plaintiffs, which was in land lot No. 110, and there was conflict in the testimony as to whether the tree and the fence were in land lot No. 109 or in lot No. 110. The only ground of the motion for a new trial, besides the general grounds, was as follows: “Because the following material evidence was illegally withheld from the jury, to wit: the return of the processioners, together with certified plat of the surveyor, showing the true line between lots of land number 109, 110, as run and marked by the processioners and county surveyor; movants in their defenses insisting that the tree alleged to have been cut and the garden fence alleged to have been moved were on the lands of S. A. Jones; movants further insisting that the location of the dividing line between the litigants was relevant to the matter in controversy, and that therefore the return of the processioners and the county surveyor was admissible in evidence, and that said return and plat was admissible to illustrate the evidence of the survey- or and the processioners who marked the line and testified in this case relative thereto. Note by the court: It was admitted by counsel for the parties that a protest to the return of the processioners had been filed by plaintiffs, which cause was pending in Gordon superior court.” A copy of the return and of the plat was attached to this ground of the motion.</p>

<p>Certiorari; from Pulton superior Court — Judge Pendleton. October 2, 1919.</p>

<p>Action for damages; from Fulton superior court — Judge Pendleton. October 23, 1919.</p> <p>The petition alleged, in substance, that when the plaintiff was alighting from an automobile in front of a hotel in the city of Atlanta, with her baby in her arms, an automobile owned by the defendant Belle Isle and driven by his servant was struck by a street-car of the defendant railway company and by the force of the collision was driven into the automobile from which she was alighting, injuring her in a manner described; to her damage in the sum of $10,000; that her injuries were the result of the joint and several negligence of the defendants; that the defendant railway company was negligent in that its car when it struck Belle Isle’s automobile was being run at reckless and dangerous speed, in violation of an ordinance of the city of Atlanta limiting the speed of street-cars to 15 miles an hour, and in violation, of the right of occupants of the street to use necessary parts of it without being endangered by such illegal use of the street; and that the defendant company was further negligent in that failed to check the speed of its car so as to avoid collision with the automobile when it saw or in the exercise of ordinary care should have seen that Belle Isle’s automobile was turning upon the railway track; that Belle Isle was negligent in that his servant in charge of his automobile failed to keep a proper lookout to prevent the striking of his automobile by the street-car, and in that his servant negligently drove into the way of the street-car so that his automobile was knocked against the automobile occupied by the plaintiff.</p>

<p>Action for damages; from Fulton superior court — Judge Pendleton. October 23, 1919.</p> <p>This action was by the husband of the plaintiff in the case of Belle Isle v. Kindig, ante, 293. The material allegations were the same in both eases, and the cases were tried' together.</p>

<p>Complaint; from Morgan superior court — Judge Park. October 25, 1919.</p> <p>The contract in question was a lease of a farm, containing a provision that “no timber is to be cut except in clearing back from the boundaries of the land heretofore cleared for cultivation.” The trial judge held that this provision was ambiguous, and admitted testimony as to its meaning, and in Ms charge to the jury instructed them to determine its meaning.</p>

<p>Indictment for murder — conviction of manslaughter; from Houston superior court — Judge Mathews. December 13, 1919.</p>

<p>Indictment for receiving stolen goods; from Warren superior court—• Judge Walker. January 27, 1920.</p> <p>The indictment charged Bichard Fowler with “the offense of misdemeanor,” for that, on a specified date, he “did unlawfully buy and receive from Jim Griffin one sack of nitrate of soda weighing about 200 pounds of the value of $10, the same being the property of C. B. Fitzpatrick and having been unlawfully stolen by said Jim Griffin from the cotton house of said C. B. Fitzpatrick, the said Bichard Fowler knowing said nitrate of soda was stolen when he bought and received it from said Jim Griffin. The said Jim Griffin, the principal thief, has plead guilty at the present term of said court to an indictment -for simple larceny, charging him with stealing said property, contrary to the laws of said State,” etc. The grounds of the demurrer were:</p> <p>“ 1st. Because it is alleged in said indictment that Jim Griffin unlawfully stole the sack of nitrate of soda from the cotton house of C. E. Fitzpatrick, and further . . that the said Jim Griffin has plead guilty of simple larceny. 2d. Because the allegations in said indictment show that the said Jim Griffin stole the sack of nitrate of soda from the cotton house of the said C. E. Fitzpatrick, and if he, Jim Griffin, is guilty of simple larceny, he is guilty of larceny from the house, and not of simple larceny, of which he pleads guilty. 3d. Because under the allegations in the indictment it appears that the said Jim Griffin has been illegally convicted, and this defendant can not be legally tried until the principal thief, Jim Griffin, has been legally convicted. 4th. Because there is not sufficient description of the property alleged to have been stolen set out in the indictment. 5th. Because ‘one sack of nitrate of soda weighing about 200 pounds’ is not a sufficient description to put this defendant on notice of the property alleged to have been stolen. 6th. Because the indictment does not allege that any sentence has been passed on Jim Griffin.”</p> <p>The excerpt from the charge of the court to which the decision refers was as follows: “ I charge you that if Jim Griffin had taken the nitrate of soda and appropriated the same to his own use after it was delivered to him in his wagon at the depot in Warrenton and before it was placed in Mr. Fitzpatrick’s cotton house or guano house on his plantation, he would be guilty of larceny after trust, but if he took it home with him and delivered it in the cotton house, and after it was so delivered in the house on Mr. Fitzpatrick’s plantation he took it out of the house, then in that event he would be guilty of simple larceny or larceny from the house, and would not be guilty of larceny after trust.”</p>

<p>Action for damages; from DeKalb superior court-—-Judge Hutcheson. January 2, 1920.</p> <p>The action was for injury to a stonecutter, alleged to have been working as an apprentice, whose eye, it was alleged, was struck by a fragment of stone flying from a granite block which a co-employee was cutting. The petition alleges, in substance, that on October 29, 1917, when the plaintiff was injured, he was working for the defendant corporation as a stonecutter, under a contract of apprenticeship (exhibited), which, although it was for a term of three years from-June 15, 1914, had not expired, because of his agreement to make up lost time. In the contract it was agreed that the defendant should teach the plaintiff the art of stone cutting “ according to the union apprentice rules,” and that the plaintiff should “respect and obey all orders and commands of” the defendant or any of its agents. Hp to the time of the injury the defendant recognized the contract as binding both parties, and was working the plaintiff as an apprentice and paying him as such. On the day of the injury he was assigned to work on a certain block of stone located in one of the defendant’s sheds, under the orders and direction of the defendant’s foreman (named); and, about 8:30 o’clock a. m., while he was dutifully engaged in the work which the defendant had given him to do, and was giving close attention to cutting the stone on which he had been ordered to work, a small fragment of granite was suddenly precipitated into his eye with great force, causing injuries described. At that time two other employees of the defendant, to wit, Houston Carr and Charlie Allen, were cutting on blocks of stone located close to the one on which the plaintiff was cutting, and the piece of stone which flew in his eye was chipped from one of these blocks, and was started on its flight by the force of the chisel used by one of these men in the work. The block on which Carr was working was 5 or 6 feet to the right of the block oh which the plaintiff was working, and the block on which Allen was working was about the same distance to the left of the one on which the plaintiff was working. The plaintiff does not know from which one of those blocks came the piece that struck his eye, but his best belief is that it came from the stone on which Carr was working, and so he charges the fact to be. He further charges that the stone on which Allen was working was likewise too close to plaintiff’s position of work for safety, and if the piece of stone which injured him came from Allen’s block, the defendant would be liable in the same manner and to the same extent as if it came from Carr’s block. It did not come from the block on which the plaintiff was working. The defendant did not instruct Carr and Allen to refrain from doing any kind of cutting that would endanger the plaintiff’s safety, but directed them to perform certain work, in the course of which there would occasionally be required a kind of cutting known as “pointing up.” The defendant further gave the plaintiff no warning that either of the workmen put so close to him would be required to do that kind of cutting which would make the place unsafe, and did not give him any warning or opportunity to look out for his own safety by letting him know when either of these men would commence that stage of the work which would be dangerous to the plaintiff.</p> <p>The plaintiff charges that the defendant was negligent towards him in the following respects: (1) in failing to provide him with a safe place of work; (2) in failing to instruct the man working near him not to do that kind of cutting which would endanger him; (3) in rendering his place of work unsafe, without warning him thereof, by requiring the men working next to him to perform work which at times necessarily endangered him; and (4) in failing to give him notice or warning that he would be exposed at uncertain intervals of time to danger from flying particles of stone. The plaintiff charges that in all the matters aforesaid he himself did not fail to use ordinary care for his own safety, did not consent to the injury, and was not guilty of contributory negligence, but was simply and faithfully performing the work assigned to him by the defendant, with undivided attention, without apprehension of danger, and without any chance to save himself from injury, when the bit of stone struck his eye.</p> <p>In the demurrer it was contended: that the injury was caused by negligence of a fellow servant, for which the defendant was not liable; that the injury was a hazard assumed by the plaintiff as one of the risks of his employment; that it appeared that he had been working in the same place for a considerable length of time, and his opportunity of knowing the danger was equal to or greater than that of the defendant; and that the rule which ordinarily places upon the master the duty of providing a safe place for work does not apply, under the facts alleged in the petition.</p> <p>In the brief of counsel for the plaintiff it is contended, among other things, that while the contract between the parties “did not create an apprenticeship in the full sense of the term, it has some of the essentials thereof,” and “ it would seem that the relation between the parties was that of master and apprentice rather than the ordinary relation of master and servant,” and “ a different rule as to contributory negligence and assumption of risk should be applied to the case of an apprentice from that which is usually applied in the case of an ordinary servant.”</p>

<p>The errors assigned in the bill of exceptions being the sustaining of a demurrer to two of three counts of the plaintiff’s petition, and the overruling of a demurrer to the answer, and the case being still pending in the court below on one of the counts of the petition, the writ of error must be dismissed.</p>

<p>Action for damages; from city court of LaGrange—-Judge Duke Davis. January 23, 1920.</p> <p>The petition as amended alleges, in substance, that on June 1, 1919, the plaintiff and the defendant entered into a verbal contract under which the defendant rented to the plaintiff, at a rental of $125 per month, for one year, to begin on the 15th day of that month, a described building in the City of LaGrange, which the defendant represented that he had full authority to rent, but that on the 11th day of the same month, when he went to see the defendant with reference to moving into the building, he was advised that the defendant had changed his mind, and that the defendant had no authority to rent the building; and the defendant refused to allow him to move into it. Actual and nominal damages are sued for. The defendant demurred to the petition generally and specially, contending that the alleged verbal contract was within the statute of frauds and not enforceable, as it was not to be performed in one year from the time at which it was made; and that the alleged damages were too remote, speculative, and uncertain to be the basis of a recovery.</p> <p>From the petition it appears that the building was rented for the purpose of being operated by the plaintiff as a hotel, and this purpose was known to the defendant at the time the contract was made. At that time the plaintiff was operating a public eating house in the same city, and, immediately after the contract was made, the plaintiff, acting with the knowledge and advice of the defendant, notified the traveling public who were then taking their meals at his eating house that on June 15, 1919, he would move into the rented building and he would not after that date be at his old stand. It is alleged that the refusal of the defendant to carry out the contract forced the plaintiff to remain at his old stand, and immediately after June 15, 1919, the receipts from his business from traveling people dropped off a stated sum per week, and this loss continued to the time of bringing this suit, 'as a result of having advised his customers that he would move at the time stated above. After being apprized of the defendant’s refusal to carry out the contract, the plaintiff exercised due diligence in notifying the traveling priblie that he would not move from his old place of business. Allegations are made as to the difference in the amount of his net receipts for five months after June 15, 1919, and for the five months preceding that date, and he sues for the difference. Another item of damages is $100, alleged to be the reasonable value of the time expended by him in specified negotiations and preparations for the operation of the business to be conducted at the rented building; which negotiations and preparations were undertaken with the knowledge and at the advice of the defendant. It is alleged that when the defendant refused to carry out the contract, he knew that loss would result to the plaintiff in the amounts stated.</p>

<p>Indictment for larceny after trust; from Chatham superior court — Judge Meldrim. January 27, 1920.</p> <p>The indictment charged larceny after trust of one automobile. In the brief of counsel for the plaintiff in error it is contended that if the venue was proved, it was proved to be in Bulloch county, and not in Chatham county.</p> <p>The material facts of the case were stated by the trial judge, in his judgment overruling the motion for a new trial, as follows: “ This is the ease of larceny of an automobile, and the only question is: Was the larceny committed in Chatham county? . . It appears that the prisoner hired an automobile in Savannah for five hours, to go to Marlow, Ga., and return. After the expiration of the five hours he telephoned that he would not return before 8 o’clock p. m. The next heard of him he was arrested in Jacksonville, Florida. He went to Statesboro and Douglas, Ga., Orlando, Florida, and thence to Jacksonville. In Jacksonville he went under the assumed name of Hughes. He had a suit-case in'the car. It is not probable that a person going from Savannah to Marlow and return, in October, to be gone five hours, would require a suitcase. For a man to start off for a neighborhood trip of five hours, and then go to Statesboro, thence to Douglas, spending two or three days there, then to Orlando, Florida, for a day or two, 'and then to'Jacksonville, where he is picked up by the police under the assumed name of Hughes, is sufficient to warrant the conclusion that the intent to steal was formed in this county.”</p>

<p>Appeal; from Sumter superior court — Judge Littlejohn. January 23, 1920.</p>

<p>Complaint; from city court of Miller county — Judge Geer. February 14,-1920.</p>

<p>Indictment for attempt to commit burglary; from Fulton superior court — Judge Humphries. February 3, 1920.</p>

<p>Intent to steal when the accused borrowed the coat alleged to have been stolen could be inferred by the jury in this case, and a conviction, of simple larceny was authorized.</p>

<p>Action for damages; from Colquitt superior court — Judge Thomas. January 23, 1920.</p>

<p>Appeal; from Henry superior court'—Judge Searcy. January 19, 1920.</p>

<p>Action for damages; from city court of Savannah — Judge Freeman. November 24, 1919.</p> <p>As to the amendment offered by the plaintiff, it appeared from the judge’s note, qualifying the bill of exceptions, that when counsel for the plaintiff was allowed to reopen the case for the purpose of introducing additional testimony after a motion for a nonsuit had been made, he stated that he desired to offer an amendment, but he did not then tender it, and at the conclusion of the additional testimony the judge asked if he had anything further to offer, and he replied that he had not. The motion for a nonsuit was renewed and granted, and the amendment was not tendered until the next day.</p>

<p>Action for damages; from Walker superior court — Judge Wright. January 17, 1920.</p>

<p>Any ambiguity in an insurance contract should be construed most strongly against the insurer, but the construction must be reasonable and not strained.</p> <p>The “ war clause ” of the life-insurance policy in question, properly construed, required the insured to notify the insurance company as to his entrance into military service, so that the company might demand of him the extra premium required, under the terms of the “war clause,” for one engaged in such service.</p>

<p>Processioning; from Camden superior court — Judge Graham. January 27, 1920.</p>

<p>Indictment for manufacture of liquor; from Colquitt superior court — Judge Thomas. January 23, 1920.</p> <p>After charging the jury that "the true question in criminal eases is, not whether it be possible that the conclusion at which the testimony points may be false, but whether there is sufficient testimony to satisfy the minds and consciences of the jury beyond a reasonable doubt that the defendant is guilty of the crime charged,” the court added: "In cases of circumstantial evidence the law goes one step further, and holds that the evidence must not only be consistent with the hypothesis of guilt, but inconsistent with the hypothesis of innocence, and exclude every other reasonable hypothesis save that of the guilt of the accused.” There was no further charge on circumstantial evidence. In the motion for a new trial it is alleged that the court erred in the foregoing charge on circumstantial evidence, on the grounds that it was insufficient, that the court failed to explain the meaning of the term “ circumstantial evidence,” and did not state that the guilt of the defendant rested solely on circumstantial evidence, failed to state all possible hypotheses arising from the circumstantial evidence in the case which were favorable to the defendant, failed to instruct the jury that if they believed any one of the hypotheses favorable to the defendant or had a reasonable doubt as to its truth he should be acquitted, and failed to instruct the jury how to apply the rule of circumstantial evidence to the circumstances shown by the evidence.</p>

<p>Indictment for manufacture of liquor; from Pulaski superior court — Judge Graham. January 33, 1930.</p>

<p>• Indictment for murder — conviction of manslaughter; from Pulaski superior court — Judge Graham. January 33, 1930.</p>

<p>Conviction of assault with intent to rape; from Walker superior court — Judge Wright. February 3, 1930.</p>

<p>Accusation of maintaining and keeping a lewd house; from city court of Douglas — Judge Henson. February 19, 1920.</p> <p>From the evidence it appeared that George Cummings, the defendant, was employed as caretaker of the Country Club, near Douglas, Georgia, and was furnished a house for himself at the grounds of the club. In this house 'a constable discovered a man and a woman in bed together and in their night-clothes, about two or three o’clock in the afternoon, drunk and asleep or feigning sleep. The defendant told the constable that they came to the club that morning before day and wanted him to go to town and get for them some’ cigarettes and chicken, and that, after day and after he had been given a drink of whisky and a dollar by the man to go to town and get something to eat for them, he went to town, and he did not return until after they were arrested; he first said that when he went to town he left them on the veranda of his house 'and left the door of the house closed, but not locked, and that they forced their way into the house; but he later told the constable that he took them in. The constable testified that the man was married, but he did not know whether the woman was married. A brother of the man found in bed with the woman testified that early in the morning the defendant came to him and told him that the couple were in his house drunk and sent him to get them-something to eat, and that he was taking care of them; and he (the witness) went to the defendant’s house in the afternoon and saw the man and the woman in bed together in the condition described above. He further testified: “Some time before this Happened I was taking the defendant out to the club in my car, . . 'and he told me that any time I wanted to bring a woman out to the club I could bring her to his house and he would furnish me a place, but told me to wait until late at night to come, and be sure not to come until all the club members left the club.” It was testified tliat the president of tire club placed the defendant in charge of it, with direction not to let any imlnoral people go there, and to notify him or Mr. Shelton, cashier of the Union Banking Company, if any such people went there, and that he did not so notify them. In the defendant’s statement at the trial he said that when he left the man and the woman at his house they were on the veranda and the door of the house was closed, and he did not know they were in the house until after they were arrested ; and that when he went to town he reported at the bank of the Union Banking Company that these people were out at the club drunk, and he did not return until after the arrest; that they came to his house about 3 o’clock that morning after a dance at the club and after the club members had left, and came into the veranda of his house and stayed until day.</p> <p>It was contended that proof of a single act of fornication or adultery in a house would not be sufficient to 'authorize a conviction under the statute (Penal Code of 1910, § 382) under which the accusation was made.</p>

<p>Certiorari; from Bibb superior court — Judge Mathews. January 27, 1920.</p>

<p>Indictment for manufacture of liquor;-from Ben Hill superior court — Judge Gower. February 14, 1920.</p>

<p>Conviction of involuntary manslaughter; from Fulton superior court — Judge Humphries. February 21, 1920.</p>

<p>Indictment for forgery; from Ben Hill superior court — Judge Gower. February 14, 1920.</p>

<p>Indictment for possession of intoxicating liquor; from Muscogee superior court — Judge Howard. February 21, 1920.</p> <p>It was testified that in the back of the defendant’s car, which he was driving, a jug of whisky was found, without anything wrapped around it. In his statement at the trial he said that a named person, whom he had taken in the car, put a package in it,— "lifted up the apron and stuck this package in the back of the car,” that he paid no attention to it, and that the person named saw officers coming down the street and jumped out of the car and ran, and the officers came to the car and got a jug out of it; and this was all he knew about it. Others testified that they saw the person mentioned by the defendant get out of the car and run.</p>

<p>Accusation of larceny; -from city court of Millen—'Judge Dekle. February 21, 1920.</p>

<p>Indictment for possession of liquor; from Muscogee superior • court — Judge Howard. February 21, 1920.</p>

Indictment for sale of liquor; from Marion superior court — Judge Howard. February 21, 1920. Under an indictment charging that on October 4, 1919, he had in Ms possession and sold intoxicating liquor, Elder Smith was convicted on testimony of Red Smith, who swore that on the night of that day the defendant sold to him in Tazewell, Marion county, a half-pint of whisky in the presence of Willis Stewart and John Flournoy.

<p>Indictment for obstructing process; from Upson superior court —-Judge Searcy. January 24, 1920.</p>

<p>Levy and claim; from Johnson superior court — Judge Kent. June 21, 1919.</p>

<p>Indictment for felony; from Wilkes superior court — Judge Walker. December 13, 1919.</p> <p>Under an indictment for larceny of a hog, Welborn, alias Favor, was found guilty with a recommendation that he be punished as for a misdemeanor. The material facts appear in the report of the case of Welborn v. State, ante, 245, which was tried with this case.</p>

<p>Accusation of larceny; from city court of Dublin—Judge Flynt. January 24, 1920.</p> <p>One of the grounds of the motion for a new trial was as follows: " Because the defendant, through his counsel, prior to announcing ready for trial on the call of the case, moved the court for a continuance therein, on the following grounds: This case was continued on Monday prior to the day actually tried, at the instance of the defendant, until a later day in the term, on account of three absent witnesses, their evidence being shown to the court to be material, and they haying been served with subpoenas to attend court, and said motion in all other respects complying with . . the Criminal Code of Georgia. At the time the court granted the continuance he set the case for a later day during the term. Capt. W. C. Davis, representing the State, then stated to the court that he would like to have the absent witnesses attached, and the court accepted this suggestion and stated that attachments should issue. The court reporter was excused from attendance on the court on that day, and it was he who usually issued attachments for witnesses, under the court’s instructions. On the day the case was called and tried, counsel for defendant moved for a continuance, because the witnesses were still absent, although the defendant stated he had seen two of them and they had promised to attend court. The court then inquired if'counsel for defendant had taken attachments for the witnesses, and counsel replied that he had not, because he understood that the court reporter issued the attachments and he did not know the reporter was absent on the Monday preceding. No attachments for the witnesses had been issued, and, on this fact being made known to the court, he ordered the case to trial. . . The court should not have charged the defendant with neglect or indifference in failing to have said witnesses attached, since it appears that for many years it has been the practice in said court for the court reporter to issue attachments for witnesses.” Affidavits were submitted in support of this ground of the motion for a new trial.</p>

<p>Conviction of stabbing; from Jefferson'superior court—Judge Hardeman. January 10, 1920.</p>

<p>Indictment for assault with intent to murder; from Macon superior court—Judge Littlejohn. January 12, 1920.</p> <p>The indictments referred to in paragraph 1 of the decision were against Andrew Humph, and in the motion for a new trial it was contended that they were admissible as evidence (1) for the purpose of impeaching Doc Newsome, the prosecutor in this case, (2) because they threw light on the defendant’s contention that the pistol used in shooting Doc Newsome Jr. (whom the defendant was charged with shooting) belonged to Andrew Kumph, (3) because they threw light on the defendant’s contention that the shooting was not by him but by Kumph, and (4) because they contradicted the testimony of Kumph, who testified for the State in this case. The part of the motion which describes the indictments is as follows: “The court erred in refusing to permit the defendant to introduce in evidence the two indictments of the State of Georgia vs. Andrew Kumph, one of which charged Andrew Kumph with carrying a concealed pistol, and the other . . with carrying a pistol to the church, both indictments’ being returned to the November term, 1919, of Macon superior court; and in the ease of carrying a concealed weapon Doc Newsome Sr., a witness in the instant case was the only witness marked as testifying before the grand jury.” To show the materiality of the indictments the movant sets out answers of Doc Newsome on cross-exámination in this case, in which he said that he “ did not swear before the grand jury that Andrew Kumph carried a pistol to Stella Chapel,” and did not swear before the grand jury that Andrew Kumph had a concealed pistol “there on that occasion;” also testimony of Rumph that he did not have a pistol “there on that occasion.”</p>

<p>Indictment for larceny; from Macon superior court — Judge Littlejohn. January 7, 1920.</p>

<p>Accusation of possession of liquor; from city court of Floyd county—- Judge Nunnally. February 6, 1920.</p> <p>Allen was charged with having had in his possession, custody, and control intoxicating liquor. M. D. Martin testified, that he saw near Lindale men and boys, “ all during the day,” walking and in automobiles, going to and from a place up a hill where whisky was afterwards found by him, and bringing away something with the sun shining on it that had the appearance of being jugs and bottles, and he notified the sheriff, and he and the sheriff took a trail which Ted up the hill, and when they got up there they saw the defendant alone, sitting on or in reach of a keg containing between 10 and 15 gallons of whisky, 35 or 40 yards from the road, and where it could not be seen from the road; the defendant was “ leaning sorter up against the keg,” and a quart cup was sitting there; he was doing nothing, and he said he had come up there to get-some whisky and was waiting for the man who owned it to come back; that the whisky was not his whisky. The witness had seen the defendant and another man leave the main public road and go up the hill to or towards this place. The sheriff testified, that when he and Martin reached there the defendant was sitting at the end of the keg, and could have laid his hand on it; that the defendant said he was waiting on the man that had the whisky, and had come there to get a quart of it, that it was not his whisky, but belonged to Will West; he was searched and no whisky or bottle was found on his person; he had a nickel in money. The witness further testified that not more than five or ten minutes before he got to that place he saw the defendant and Will West going up there together, and that Will West came down the hill by himself stopped with some boys at an automobile, and remained there 'while the witness was going up the hill. The defendant, in his statement at the trial, said that some boys told him and Will West that there was some whisky “ over there,” and Will said to him “ Let’s go and get some of it,” and he gave to West what money he had, and “he was going to get the whisky” when they got there, that they heard a car coming, and Will remained to see who was in the car and told him to go on up there; and when he got there he saw the keg and sat down, waiting to get some of it.</p>

<p>Indictment for manufacture of intoxicating liquor; from Bar-tow superior court —Judge Tarver. February 13, 1920.</p>

<p>Complaint;, from X&urons superior court — Judge Kent. May 24, 1919.</p>

Complaint; from Fulton superior court — Judge Bell. June 14, 1919. Snellgrove contracted with Dingelhoef for the purchase of an automobile, but no particular automobile was selected at the time. It was expressly agreed and understood that a new automobile was later to be delivered.

<p>(Certiorari was granted by the Supreme Court.)</p> <p>Action for damages; from Fulton superior court — Judge Pendleton. July 1, 1919.</p>

<p>Complaint; from Tattnall superior court — Judge Sheppard. July 10, 1919.</p> <p>This suit was against an administrator. The petition alleged: that the decedent “contracted and promised to pay petitioner and to satisfy her” if she would take the decedent’s infant child and support and care for it during its minority; that the petitioner “contracted and agreed to take the said infant child and support it, care for it, and raise it the best she could,” and that on a named date the decedent delivered the child to her “under the terms of the said contract,” and she accepted the child “under the terms of the contract as above set forth, no price being stated or agreed on to be paid to petitioner except as above stated;” that she supported and cared for the child from the date of the alleged contract until the decedent’s death, and that the said services were “reasonably worth the sum of $12.00 per month,” or the total sum of $978, for which sum, and an additional sum of $180, expended for clothes for the child, judgment was prayed. The court sustained a general demurrer and dismissed the petition.</p>

<p>Complaint; from city court of LaGrange-—B. J. Mayer, judge pro hac vice. September 8, 1919.</p>

<p>Trover; from city court of Polk county — Judge Tison. October 16, 1919.</p> <p>Duke, the plaintiff, testified: that the oral sale agreement was finally arrived at in his storeroom, and that Cason, the defendant, called upon certain persons then present (witnesses in the case) to witness the statement of its terms as made by the plaintiff. “ I told them I sold Mr. Cason everything I. had there, with some stuff I had reserved, and went ahead and called over what I had reserved there in the store, some garden tools, some hogs and cow and canned syrup — four or live gallons, I forget which now. So I called over what stuff there was in the store, and I don’t know how long we stood around there, but just a little bit,— I don’t suppose it was more than three, four, or five minutes,— and I stepped outside of the store, had started up to the house. ' I got out of the store and happened to look around, and I had two bales of cotton in the gin-house that I didn’t sell, and I just spoke back to them, ‘You see my cotton; that don’t go in the trade.’ T saw it tickled them, wanted to laugh about it.” . . Question: “You had closed the trade and stated it over to these witnesses, and had received your fifty dollars and had started to dinner before you mentioned the cotton?” Answer: “No, I accepted the fifty dollars first, then went to write the receipt for fifty dollars, and he said it was no use, call the trade over to these two witnesses, and I told them, well, everything was sold to Mr. Cason except what I had reserved; in a few minutes started out of the store, started to the house and happened to see the cotton, and says, ‘ Here, the cotton don’t go in.’ I don’t know whether I had put the fifty dollars in my pocket or not, I had received it. I don’t recollect whether I had given Mr. Cason the key before I went to the house; I don’t remember, but I gave him the key. I don’t remember whether it was after I came back from the house or when I went out of the store I left Mr. Cason in charge.” Question: “After you closed the trade and excepted the things that I have mentioned, and you included the syrup, then afterwards you hollered back that you didn’t sell the cotton ? ” Answer: “ Yes, sir, had received the money before I made 'any reservations at all.” Question: “This statement about the cotton was after you had received the money and you had stated the terms of the trade in the presence of Mr. Pittman and Mr. Austin ? ” Answer: “ Yes, sir, and made three other reservations. The cotton was the last thing reserved. I started to the house after the trade was closed.” On redirect examination: “I had not at that time delivered possession of the property, the store and things. Ollie had been in the store all day and had the key.”</p>

<p>Action for damages; from Pike superior court — Judge Searcy. October 6, 1919.</p>

<p>Complaint; from Rockdale superior court — Judge Hutcheson. November 24, 1919.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Distraint; from city court of Washington — Judge Wynne. November 25, 1919. •</p>

<p>Complaint; from Fulton superior court'—Judge Bell. November 17, 1919.</p> <p>Application for certiorari was denied by the Supreme Court.</p> <p>By agreement of counsel this case was tried by the judge without a jury upon the following agreed statement of facts: “ On February 12, 1918, the plaintiff, trading under the trade name of Alma Cotton Company, had on storage with the defendant, the Atlanta Warehouse Company, in Atlanta, Georgia, 152 bales of cotton, which had been shipped from Alma by petitioner to defendant, to hold as warehouse cotton for the petitioner’s account and subject to his further orders, the warehouse company acting as agent and for a commission. On February 12th, 1918, the plaintiff sent to the defendant the following telegram: ‘ Sell Cannon & Company and Alma Cotton Company cotton for best basis obtainable.’ (Signed) E. B. Cannon. In reply to that telegram the defendant telegraphed the plaintiff as follows: ‘No market to-day. Will sell cotton best advantage to-morrow.’ (Signed) Atlanta Warehouse Company. The defendant also on February 12, 1918, wrote the plaintiff as follows: ‘Wé have your telegram to-day to sell cotton of Cannon & Company and Alma Cotton Company at best price obtainable, to which we replied there was no market, on account of legal holiday, and that we would sell to the best advantage to-morrow.’ On February 13 the defendant was offered for the cotton stored with it 30-5/8 cents per pound f.o.b. Atlanta, which was the prevailing market price in Atlanta on that day and the best price it was offered for said cotton. Thereupon, on said February 13, the defendant wired the plaintiff as follows: ‘We are offered 30-5/8 per pound for 126 bales Cannon Cotton Company, and same price for 152 bales Alma Cotton Company f.o.b. Atlanta, subject re-weight and subject immediate reply.’ This telegram was sent ‘collect,’ and was delivered to the plaintiff on the same day, but the telegraph company, in delivering it, made an error and substituted the word ‘f.o.b. Alma’ for the word ‘f.o.'b. Atlanta,’ as it had read in the original filed with the telegraph company. Upon receiving the telegram with the error in it, Cannon wired the defendant as follows: ‘Your wire offering 30-5/8 278 bales f.o.b. Alma, accepted.’ The defendant on the same day wrote a letter to the plaintiff as follows: ‘We wired you this morning offering 30-5/8 cents round for 126 bales of cotton of Cannon Cotton Company, and the same price for 152 bales of the Alma Cotton Company f. o. b. Atlanta, and now await your reply.’ This last letter was received by Cannon on February 14, after he had sent the reply telegram of February 13. The cotton was sold by the defendant at the basis indicated in its telegram, f.o.b. Atlanta, on February 13, and on February 14 the defendant prepared a sale confirmation showing the weights of the cotton and showing that it was sold at 30-5/8 cents f.o.b. Atlanta warehouse, Und these were mailed to plaintiff, and remittance was made to plaintiff of the amount due him on the basis of the sale f.o.b. Atlanta. Tire difference between the price f.o.b. Atlanta, at which the cotton was sold, and the price f.o.b. Alma, was $306.71, and the plaintiff has sued for the same as shown by his declaration.” “ It was further agreed upon the stipulation, signed by both parties, that the court, without the intervention of a jury, should pass on all issues of law and fact with the right of either party to except in the usual manner.”</p> <p>The court rendered judgment in favor of the defendant, and the plaintiff excepted, assigning error on the ground that the pleádings and the evidence demanded a verdict for the plaintiff, and that the judgment is against the weight of the evidence and contrary to law and the principles of justice and equity.</p>

<p>Foreclosure of lien; from city court of Carrollton — Judge Beall. January 26, 1920.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Complaint; from city court of Miller county'—Judge Geer. February 14, 1920.</p>

<p>Complaint; from city court of Waynesboro — Judge Davis. January 28, 1920.</p>

<p>Action for damages; from Chatham superior court — Judge Meldrim. February 19, 1920.</p> <p>The petition, as amended alleges, in substance: The plaintiff was employed by the defendant as a brickmason and was engaged in laying a hollow-tile sewer in a ditch on the defendant’s premises. The ditch about 5 feet wide at the top, 3% feet wide at the bottom, and about 7 feet deep, and had been dug by the defendant under a cement pavement, and in excavating for the sewer the defendant did not remove the cement pavement, but left it overhanging the excavation. The cement pavement was about 5 feet wide and 5 inches thick, and the segment across the ditch weighed about 1,100 pounds, and this weight, together with the weight of persons passing over it and its improper sloping, tended to cause the earth at the top of the excavation to break off and fall in large lumps. It is alleged that ordinary care required that the defendant should have had the walls of the excavation shored at the point where it passed under the cement pavement. While the plaintiff was laying the sewer under the pavement a lump of earth about the size of “a wheelbarrow full, broke off at the top of the ditch,” and fell, striking him upon the neck and knocking him to the ground, with the result that' there developed “ progressive paralysis ” in his right side, beginning with his right arm and extending over his entire right side, causing, in addition to the inability to use his limbs, an impediment in his speech and an impairment of his eyesight. On approaching the cement pavement and before laying the sewer under it, the plaintiff called the attention of Mr. Culver, the defendant’s foreman and alter ego, to the condition of the walls of the excavation, and the foreman, after examining the pavement and the walls of the excavation, advised the plaintiff that it was safe, and ordered him to proceed with the work. It is alleged that the plaintiff was not “skilled in the weights of earth,” and did not know whether the earth overhanging the excavation would fall, but relied upon the skill and knowledge of the defendant, and the assurance that the earth would not fall; that he did not dig the ditch in which he was ordered to work, and did not know of the unsafe condition of the ditch at the point where the cement sidewalk crossed it, and “ did not have equal means of knowing and by the exercise of ordinary care could not have known of said defective condition of the sides of the ditch, and of the dangers incident to working at the point where he was injured,” but that the defendant knew or by the exercise of ordinary care could have known thereof. The petition charged the defendant with negligence in the following particulars: (a) in failing to furnish the plaintiff with a safe place to work; (5) in failing to have the sides of the ditch under the pavement properly sloped; (c) in failing to shore the walls of the excavation. The defendant demurred generally and specially, the court overruled the demurrers, and the defendant excepted.</p>

<p>Certiorari; from Tattnall superior court — Judge Sheppard. February 2, 1920.</p>

<p>Complaint; from Irwin superior court — Judge Eve. February 3, 1920.</p> <p>Application, for certiorari was denied by the Supreme Court.</p>

<p>Complaint; from city court of Floyd county—-Judge Nunnally. February 9, 1920.</p>

<p>1. Whether or not the owner of an automobile is liable for damage caused by it which results from the negligence of the person operating it depends upon whether the person driving it was the agent or servant of the owner and engaged upon the business of the owner at the time the negligence occurred. If he was such agent or servant and engaged upon such business, the owner is responsible for injuries to persons or property caused by his negligence in operating the automobile. Aliter, if he was not such agent or servant and was not engaged upon such business.</p> <p>(a) Thus, the owner of an automobile is not liable for injuries inflicted by his brother-in-law, in negligently operating the machine, where it appears that at the time of the injuries the brother-in-law was not using the car as the agent or servant of the owner nor engaged upon business of the owner.</p> <p>2. The trial judge therefore did not err in granting a nonsuit.</p>

<p>A married daughter, living- with and supported by her husband, cannot sue for the homicide of her father, though she be the only minor child and the father's wife died before the homicide.</p>

<p>No cause of action -was stated by the allegations as to the injury to the plaintiff from slipping and falling on the floor of a hallway, upon which he was walking when going from the office of a tenant in the defendant’s office building, and which, while he was in the tenant’s office, was covered with water preparatory to mopping it, and thus was rendered slick and dangerous to walk upon; it not appearing that there was any culpable negligence on the part of the defendant, or that the alleged danger was not obvious and could not by the exercise of ordinary care have been discovered by the plaintiff. Stephens, J., dissents.</p>

<p>Complaint; from Washington superior court — Judge Hardeman. March 14, 1919.</p>

<p>Action on contract; from city court of Reidsville—-Judge Cowart. September 1, 1919.</p>

<p>Certiorari; from Pulton superior court—Judge Pendleton. October 30, 1919.</p> <p>On June 5, 1918, in a case tried before Judge L. Z. Rosser, one of the judges of the municipal court of Atlanta, judgment was rendered for the plaintiff. An oral motion for a new trial was overruled, and a petition for certiorari was presented, in which it was alleged that “the court did, on June 5, 1918, render judgment in favor of the plaintiff and against this defendant for the suni of $160.00 principal, $33.60 interest to date, but no judgment for costs was rendered.' Upon the rendition of said judgment counsel made an oral motion for new trial, and the same was on said date, to wit June 5, 1918, overruled by the court. The judgment of the court is a final judgment, and your petitioner is dissatisfied therewith, and now, within thirty days from the final determination of said cause, petitioner having complied with all the law in such cases, presents this his petition for certiorari, in which petition he here and now sets forth fully and distinctly the nature of the cause, what occurred on the trial, and the errors complained of.” The petition was sanctioned, the writ of certiorari issued, and an answer was filed. On the hearing of the case a motion was made to dismiss the petition and quash the writ on three grounds, to wit: “ 1. Because the petition for said writ of certiorari complains of and is to the judgment of the court rendered at the trial of said case, which was not the final adjudication of said case, the said S. E. Green having made his motion for new trial to said judgment, which was duly prosecuted by the said S. E. Green, and at the hearing thereof was overruled, which was the final adjudication of said case in the municipal court of Atlanta, F. S. 2. Because said petition for certiorari does not complain of the overruling of his said motion for new trial, made in said case by the said S. E. Green, and no error is assigned to the overruling of said motion for new trial, which was the final adjudication of said case in the municipal court of Atlanta, Fulton Section. 3. Said petition fails to set forth the ground or grounds upon which said motion for new trial was based, and therefore the court cannot adjudicate the question of whether or not the trial in the municipal court of Atlanta, F. S., erred in overruling said motion for new trial, and therefore said petition for said writ of certiorari is insufficient in law, in that same does not set forth plainly, fully, and distinctly the errors complained of, as required by law, and therefore said writ of certiorari is void and should be quashed.” The judge of the superior court passed the following order: “ The within motion coming on to be heard, after argument of counsel for defendant and plaintiff in certiorari it is ordered and adjudged that the within and foregoing motion made by defendant in certiorari be and the same is hereby sustained, because said writ of certiorari is not taken from the final adjudication of the case in the municipal court of Atlanta, Ga. It is ordered and adjudged that the order 'granting the writ of certiorari in this case be set aside, and the same is hereby set aside, and that the writ of certiorari herein issued be and the same is hereby quashed.” To this order exceptions'were taken.</p>

<p>1. The evidence authorized a recovery for the loss of the trunk sent by the plaintiff to the railroad-station and left there at the baggage-room of the terminal company with a person employed by it in the cheeking of baggage, who accepted the ■ trunk for temporary storage, although no baggage or claim-check was given for it and no railroad-ticket was presented with it, and although the employee who accepted it may not have been authorized to do so where no such check was given or ticket presented, it not appearing that the plaintiff or the person who delivered the trunk for her knew of such a limitation upon the employee’s authority.</p> <p>(a) Private instructions or limitations not known to persons dealing with an agent who assumes to act within the apparent scope of his authority cannot affect them.</p> <p>2. The rules of the interstate-commerce commission were properly rejected as evidence.</p>

<p>Indictment lor larceny from house; from city court of Carroll-ton— Judge Beall. December 5, 1919.</p> <p>Williams was convicted of simple larceny, under an indictment which charged larceny from the house. The indictment described the stolen property as “one leather collar of the value of $4.00, and one pair leather buggy lines of the value of $2.00, of the personal goods of” Emory Thomas in his buggy-house. In the demurrer it was contended that this description was not sufficiently specific.</p> <p>As to possession of the articles alleged to have been stolen, the court charged the jury as follows: “Were they recently found in the possession of Will Williams, the defendant on trial? If you find that they were, has Will Williams made satisfactory explanation of his possession and shown to your satisfaction that he was not recently in possession of them? If he has, then you could not convict him. But if you should find that the goods were stolen, that they were recently found in the possession of Will Williams, the defendant, and he has not made satisfactory explanation, and explanation that satisfies you as jurors, then that would be a circumstance that would authorize you to convict the defendant.” In the motion for a new trial it is alleged that the court erred in charging, “If you find that they were [recently found in the possession of Will Williams], has Will Williams made satisfactory explanation of his possession and shown to your satisfaction that he was not recently in possession of them.” The exception to this part of the charge is that it “conveyed to the jury the idea that movant must show that he was not in recent possession of the goods, rather than that he must explain possession; and such language is so positive and so misleading that no subsequent language in an effort to modify the same could be sufficient to clear the minds of the jury of the impression.”</p>

<p>Foreclosure of lien; from city court of Monroe — Judge Stone. November 17, 1919.</p>

<p>Distraint; from Cherokee superior court—-Judge Morris. December 29, 1919.</p>

<p>Action for damages; from Fnlton superior court — Judge Bell. October 25, 1919.</p> <p>The National Life Insurance Company of the United States of America sued the Clover Leaf Casualty Company, George W. Cooper, and J. E. Ashley for damages, alleging that the defendants conspired together to persuade and did persuade and cause certain agents of the plaintiff to break their contracts of employment with the plaintiff and leave its service for the service of the defendant company. Ashley died and was stricken as a party defendant. The trial of the case resulted in a verdict against the other defendants, their motion for a new trial was overruled, and they excepted.</p> <p>Paragraph 3 of the foregoing decision relates to testimony of PI. C. Iietterer as to certain conversations and transactions witli Ashley, to which the defendants objected on the grounds that the conversations and transactions were solely between a deceased agent of the defendant company and an agent of the plaintiff, and that the statements made and advice given to Ashley by the witness, who was an agent of the plaintiff, could not bind the defendants, being made without their knowledge, and were prejudicial to the rights of the defendants and tended to mislead and confuse the jury. The witness stated that in these conversations Ashley exhibited his contract of employment with the Glover Leaf Casualty Company and told of his employing the agents and “working on the men,” and of the commissions to be paid, and discussed methods of getting men away from the National Life Insurance Company.</p>

<p>Accusation of cheating and swindling; from city court of Nashville— Judge W. E. Smith. January 12, 1920.</p>

<p>Foreclosure of mortgage; from Jones superior court — Judge Park. December 27, 1919.</p>

<p>Action for damages; from Whitfield superior court-—-Judge Tarver. January 6, 1920.</p> <p>The Gulf Eefining Company was sued for damages on account of the killing of the father of the plaintiffs by a truck owned by A. M. Hopkins and driven by his employee, which was being used by Hopkins in the business of selling and delivering oils and gasoline furnished by the company, and in collecting empty barrels and other containers to be returned to it; the plaintiffs alleging that the truck was in such a defective and dangerous condition that to drive it on a public road was gross negligence, the steering apparatus being so worn and broken that the driver could not control the movements of the truck; and that the company was operating it through Hopkins, who was alleged to be an employee of the company.</p> <p>The question argued in the briefs in this court was whether the relation of Hopkins to the company, under a written contract between them and the other facts of the case, was such as to render the company liable for injury inflicted in the operation of his truck. On the part of the company it was contended that he was merely a consignee of its goods or an independent contractor, and not an employee or agent for whose operation of the truck the company could be held liable, and that the relation between them was governed entirely by the written contract. There was evidence that the company was a corporation of the State of Texas, and had at Dalton, Georgia, a plant, including a warehouse, where oils and other products sold by it were kept, and that Hopkins was- in charge of the plant and of the business .conducted there; that the company’s name was painted on the truck, although it was his individual property, his purpose as stated by him being to let the public know that he was handling the company’s products; that tax-returns of the company’s property in the county were signed by him, and he was named as its agent in certain advertisements run by him and on one of the trucks used in delivering oil; and service of this suit was made on»him as the company’s agent. He testified that his relationship with the company and his powers to represent it were all stated in the contract referred to above, which was as follows:</p> <p>"This memorandum of agreement made and entered into this second day of April, 1918, by and between the Gulf Eefining Company, Atlanta, Ga., party of the first part, and A. M. Hopkins, of Dalton, Georgia, party of the second part, witnesseth: The party of the first part agrees to furnish a warehouse at Dalton, Georgia, suitable for the storage of oils. Party of the first part agrees to furnish a warehouse at Dalton, Georgia, suitable for the storage of oils. Party of the first part agrees to ship to party of the second part lubricating oils, illuminating oils, and gasoline, in carload lots, which shipments are to be received by the party of the second part and sold by him at prices named by party of the first part — all sales of such oils to be for cash; if on credit, only to such parties as are acceptable to party of the first part and upon terms authorized by them. When first party orders second party to sell on credit, second party shall deliver a signed receipt, or in case the oil is shipped out of the city of Dalton, Ga., second party will deliver an original bill of lading from the railroad company, which shall constitute a receipt. Party of the second part is to be responsible to the party of the first part for all goods shipped to him and is to account for all sales in accordance with above paragraph, sending three times weekly a statement showing all sales made and remitting three times weekly to party of the first part, at their Atlanta, Ga., office, all moneys received by him from sale of above-named goods. Second party shall render to party of the first part statement on the first day of each month, showing in detail the goods on hand. Second party agrees to pay all dray-age and delivery charges, and collect all empty drums and barrels and ship same back to first party as ordered. It is strictly understood that all goods shipped party of the second part by party of the first part are the property of the first party until sold. Dalton, Ga., points to be made by wagon. Bocky Face, Tunnel Hill, Binggold, Waring, Varnells, Cohutta, Bed Clay, Spring Place, Tilton, Chatsworth, Eton, Besaca, Calhoun, Phelps, Carbondale, Hill City, Sugar Valley, Deep Springs, Beaverdale. On or about the first of each month, party of the first part will send to the party of the second part a statement showing the sales made by party of the second part during the preceding month, remitting party of the second part commission earned on such sales, said commission to be 2 cents per gallon on kerosene and gasoline when sold in milk cans or tank wagons, and 2 cents per gallon when sold in original package such as drums, barrels, cans or cases, and 10 per cent of invoice on lubricating oils, where oil is delivered by party of the second part without payment of railroad freight charges. Where shipments are made by railroad, commission to party of the second part is to be 2 cents per gallon on kerosene and gasoline and 10 per cent, of the invoice on lubricating oils, and party of the first part is to allow party of the second part amount of freight paid on such shipments. Party of the first part reserves the privilege of making shipments from its stock of goods in hands of second party, and second party agrees to fill such orders as may be sent them by party of the first part — no commission to be allowed party of the second part on such shipments, but first party will pay second party 25 cents per barrel for draya'ge and clerical work in making such shipments. This contract may be terminated by either party upon ten days’ written notice to the other party and upon such termination each party shall settle with the other in full any and all amounts which may be due by either party to the other.” Signed by the parties.</p> <p>There was evidence as to the defective condition of the truck, and as to the inability of the driver to control it, because of that condition, when it caused the death of the father of the plaintiffs by striking an automobile in which he was riding on a public road and which its driver was attempting to drive out of the way of the truck. The main bill of exceptions complains of the direction of a verdict for the defendant; and in the cross-bill of exceptions the defendant complains of the overruling of a demurrer to the petition.</p>

<p>Indictment for misdemeanor; from Laurens superior court — Judge Kent. February 5, 1920.</p> <p>Gilbert was indicted under section 387 of the Penal Code (1910), the indictment charging him with having used obscene, vulgar, and profane language in the presence of a female. One of the grounds of the motion for a new trial was that the court permitted a named witness to testify that the defendant was drunk; the defendant’s attorney objecting to this testimony on the ground that it was irrelevant, immaterial, and prejudicial. In the brief of counsel for the plaintiff in error it was requested that the Court of Appeals request the Supreme Court to overrule or modify the ruling made in Pierce v. Slate, 53 Ga. 365, as to proof of drunkenness in such a case.</p>

<p>Trover; from city court of Dublin — Judge Flynt. January 30, 1930.</p> <p>The bill of exceptions states that “the only question of law presented and passed upon by the court was whether or not the document in evidence was a mortgage, or a bill of sale passing title so that bail-trover would lie.” In the document in question the form of a deed of bargain and sale conveying title to personal property is followed by the statement that “This conveyance is intended to operate as provided in sections 3771, 3775, and 5433 of the Civil Code in regard to the sale of property to secure debts and pass the title of the property described into the said Farmers and Merchants Bank, Brewton, Ga. (a bond to reconvey said property in terms of the statute having been executed contemporaneously herewith, the receipt of which is hereby acknowledged by the said maker), the debt hereby evidenced and secured being,” etc., specifying the debt. The action was by the Farmers and Merchants Bank against the maker of this instrument; a verdict was rendered against the defendant, and, her motion for a new trial being overruled, she excepted.</p>

<p>Certiorari; from Putnam superior court — Judge Park. March 17, 1920.</p> <p>Sidney Alexander was convicted in Putnam county court of tbe offense of carrying a pistol without a license. From the petition for certiorari it appears, that it was testified that the defendant had a pistol in his hand at the house of Daisy Lawson, and it went off and shot the lamp out, and, when the shot was made, Alonza Alexander, who had come with him to the house, grabbed the pistol and ran off with it, and the defendant remained at the house. The witnesses did not know who owned the pistol or who brought it to the house. The defendant, in his statement at the trial, said that the pistol did not belong to him and that it was brought to Daisy Lawson’s house by Alonza Alexander; that when they got to the house Alonza took it out of his (Alonza’s) pocket and tried to sell it to him, and he (the defendant) was merely looking at it when it went off and shot out the lamp, and Alonza grabbed it and ran off. The judge’s answer to the certiorari states, that the evidence is correctly set forth in the petition except that one of the witnesses testified that he saw Alonza, not at Daisy Lawson’s house, but up town, try'to sell the pistol to Sidney Alexander; and no witness testified that at Daisy Lawson’s house the defendant and Alonza were talking about a trade for the pistol. The petitioner alleged: that the judgment was contrary to law and to the evidence and without evidence to support it; that there was no evidence that he had the pistol with intent to carry it to some other place than that at which the manual possession began, and that the only evidence was that he had it in his possession for the purpose of examination; citing 12 Ga. App. 427.</p>

<p>Trover; from city court of Valdosta—Judge Cranford. March 5, 1920.</p>

<p>Indictment for larceny after trust; from Fulton superior court •—-Judge Humphries. March 14, 1920.</p>

<p>Indictment for possession of liquor; from Muscogee superior court — Judge Howard. March 20, 1920.</p>

<p>Accusation of misdemeanor; from city court of Nashville — Judge Smith. March 22, 1920.</p>

<p>Application for bail; from Bleckley superior court — Judge Graham. March 8, 1920.</p>

<p>Relationship which would disqualify a juror was not so clearly established in this case as to authorize this court to hold that the trial judge erred in overruling the motion for a new trial, in which such relationship was alleged.</p>

<p>Conviction of manslaughter; from Clarice superior court — Judge Cobb. February 25, 1920.</p>

<p>Action on guaranty; from city court of Sylvester — Juflge Monk. ■ March 16, 1920.</p>

<p>1. In charging the jury it is not error for the court to state to the jury any contention of the plaintiff as set forth in his petition, where it is supported by evidence, and especially where the contention and the stated facts upon which it is based are expressly and specifically denied in the defendant’s answer. This is true even though the undisputed evidence may show that "for some other reason the plaintiff is not entitled to recover on that particular contention. Prejudicial error was committed as to one of the defendants in this ease, .however, in the statement of the court to the jury that the plaintiff alleged that the defendants were negligent in establishing and maintaining a dangerous crossing, when no such allegation was made as to that defendant and . the allegation as to negligence in this respect was limited to the other defendant.</p> <p>2. The statutory presumption of negligence, as set forth in section 2780 of the Civil Code of 1910, is applicable in a suit against the director-general of railroads, where the damage sued for was caused by the running of the locomotives or cars of any of the railroads under his control as director-general.</p>

<p>Indictment for intoxication in public place; from Murray superior court-—-Judge Tarver. February 28, 1920.</p> <p>The court charged the jury that if they should find that the defendant appeared in an intoxicated condition at the place named in the indictment, and that the intoxication was caused in the manner prescribed by the statute (that is, by the use of intoxicating wines, beers, liquors, or opiates), and was made manifest in any manner provided by statute (that is, by boisterousness, by indecent condition or acting, or by vulgar, profane, or unbecoming language, or by loud and violent discourse), they should find the defendant guilty. This instruction is complained of in the first special ground of the motion for a new trial, for the reason that '' it is not the law of the case,” and “ it tells the jury, in defining the statute, that 'the use of intoxicating wines/ etc., is sufficient when the law is, the 'excessive use of intoxicating wines/ etc.”</p> <p>In the other special ground of the motion for a new trial it is alleged that the province of the jury was invaded and an opinion intimated that the defendant was drunk and intoxicating, by the following instruction of the court: ''It is not necessary that the drunkenness or intoxication should be made manifest in all of the ways which the statute provided, but, if it was made manifest in one of the ways, that would be sufficient.”</p>

<p>Application for change of venue; from Toombs superior court — Judge Hardeman. March 19, 1920.</p>

<p>Conviction of receiving stolen goods; from Bibb superior court — Judge Mathews. March 22, 1920.</p>

<p>The charge of the court as to the effect of possession of stolen goods, as evidence against one indicted for burglary, was not subject to the ex¿ ceptions taken.</p>

<p>Indictment for larceny after trust; from Bibb superior court — Judge Mathews. March 22, 1920.</p>

<p>Indictment for larceny; from Bibb superior court — Judge Mathews. March 22, 1920.</p> <p>The larceny of an automobile was charged in the indictment. It was testified that the car disappeared from its owner’s possession in Bibb county, without his knowledge or consent, and soon after was discovered, with the defendant and an older boy in it, in Barnesville; and that the defendant made conflicting statements as to how they got the car. One of his statements was that they started to Atlanta afoot, and a white men asked them where they were going, and turned the car over to them, telling them to take it and go ahead; another statement was that the other boy suggested that they get a car, and later drove up^ in this car, and they got in it and started to Atlanta. As to possession of stolen goods the court charged the jury as follows: “ I charge you that where one of the circumstances proven in the case is that the defendant is in possession of stolen goods, the jury may presume from that fact that the defendant is guilty, unless a reasonable ’explanation, in the opinion of the jury, is shown, as to such possession. Now, if you believe, beyond a reasonable doubt, that this defendant was found in possession of the car, the jury may presume from tliat circumstance alone tbat he is guilty of larceny of the ear, where other proof in the case shows that the ear was stolen. This is not a conclusive presumption, but it is a presumption that may be rebutted. It is for the jury to say when such a conclusive presumption arises, unless it is rebutted. But I charge you, as a matter of law, the jury may presume from that circumstance, if such a circumstance is shown in the case, the jury may presume it and act upon it unless it is rebutted by showing a reasonable explanation as to such possession.” In the motion for a new trial it is alleged that the court erred in so charging, for the reason that the effect of this part of the charge was to instruct the jury that if they found the defendant in possession of the automobile, they might find him guilty on that fact alone; that the charge was not justified by the evidence, which showed that two negroes were in the car when found; that it was error because the jury might find that the defendant was using the car without the owner’s consent and was not guilty of stealing it; and it was error because it put an undue burden on the defendant and took away from the State its duty of proving him guilty beyond a reasonable doubt.</p>

<p>Accusation of sale of intoxicating liquor; from city court of Oglethorpe — Judge Greer. March 3, 1920.</p>

<p>Conviction of shooting at another; from Fulton superior court — Judge Humphries. April 3, 1920.</p>

<p>Action for damages; from city court'of Valdosta—Judge Cranford. July 9, 1919.</p> <p>1. Because of a collision of their automobiles, Bergsteiner sued Studstill for damages, and the defendant by his plea claimed damages from the plaintiff, each alleging that the collision was caused by the negligence of the other. The plaintiff alleged, that the defendant and the defendant’s son, who were together in the defendant’s automobile, which was being driven by the son, were negligent in undertaking to cross from the plaintiff’s left in front of the plaintiff’s car, without giving notice of this intention, and in failing to comply with the rules of the road and to turn to and remain on-the right in passing the plaintiff’s car; that the defendant was negligent in permitting his son, who was under sixteen years of age, to drive his. car upon the public highway in violation of the statute; and that the plaintiff himself was without fault. The defendant in his plea as amended, after denying the plaintiff’s allegations, alleged, that at the time of the- collision the plaintiff’s car-was being driven at a reckless speed, 25 or more miles per hour, that the plaintiff saw; the defendant’s car and, if he had used the slightest care, could readily have avoided the collision, but made no attempt to cheek his speed; and that the plaintiff was negligent in not giving due warning of the approach of liis car, by blowing his horn or by using any signaling apparatus, and was further negligent in using a spot-liglit, by throwing the light into the eyes of the defendant and his son, thereby blinding them and preventing them from avoiding the collision. He prayed for damages on account of injuries to his ear and to his person. The verdict was against the defendant. In his motion for a new trial he contended that the court erred in not charging the jury as to contributory negligence and diminution of damages if the jury should find that there was mutual fault; the movant contending that the pleadings and the evidence raised the issue as to whether there was such negligence on the part of the plaintiff.</p> <p>2. The court charged: “By the preponderance of the testimony is meant that superior weight of testimony which, while not enough to wholly free a reasonable mind from doubt, is yet sufficient to turn the mind to one side of the issue rather than to the other.” In ground 7 of the motion for a new trial it is alleged that this is not a correct definition, and is vague, confusing, and misleading, the correct definition (Civil Code of 1910, § 5731) being: “ By preponderance of evidence is meant that superior weight of evidence upon the issues involved, which, while not enough to wholly free the mind from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than to the other.”</p> <p>3. That the court intimated an opinion that the defendant was negligent is the exception taken in ground 8 to the following instruction: “If you believe . . that the defendant was negligent upon this occasion, and that this negligence was existing and was apparent to the plaintiff, or could have been apparent to him by the exercise of ordinary care, or that he could have discovered this negligence by the exercise of ordinary care and did not do it, he could not recover. Our law makes it the duty of every one to avoid the consequences of another’s negligence, provided that negligence is apparent.”</p> <p>4. As to the contentions of the defendant the court charged tbe jury that they were set forth in his plea and in the amendment to the plea, which the jury would have out before them, and that the court would not go over the pleadings but would refer the jury to them for the issues to be passed upon; and in a subsequent part of the charge the court, after stating the specific acts of negligence alleged by the plaintiff, stated that the defendant made “certain specific allegations of negligence against the plaintiff,” the first of which was failure of the plaintiff to give due warning of the approach of his car, and the next of which was that he was negligent in throwing a spot-light into the eyes of the defendant ’and his son and thereby blinding them; but the court did not state the defendant’s allegations as to the speed of the plaintiff’s car, and the failure to use due care to check it; and in the motion for a new trial it is contended that the court thus excluded and withdrew from the consideration of the jury these omitted allegations of negligence.</p> <p>5. One of the grounds of the motion for a new trial is that the verdict is excessive, because there was no evidence that would authorize a verdict for more than the cost of labor and repairs on the car, $277.42 and interest thereon. Instructions to the jury on other items of damage to the plaintiff are complained of.</p>

<p>Indictment for manufacture of liquor; from Murray superior court — Judge Tarver. March 13, 1930.</p>

<p>(Certiorari was granted by tbe Supreme Court.)</p> <p>Indictment for murder; from DeKalb superior court — Judge Smith. August 21, 1919.</p> <p>For the killing of a child by an automobile, David Howard was indicted for murder and was found guilty of involuntary manslaughter in the commission of an unlawful act. The child was killed in a public street of the town of Kirkwood, and according to some of the testimony the automobile was being driven by the defendant at a high rate of speed and in excess of 30 miles an hour, and ran a considerable distance after it struck the child, and no signal of approach was given by the blowing of a horn or otherwise. It was also testified that the speed was moderate and not more than 12 or 15 miles an hour, that the horn was blown as the child ran into the street, that every effort was made to avoid injury, and that the automobile was stopped within a few feet after striking the child.</p> <p>1. On the trial it was contended on the part of the defendant that if the speed was not greater than 30 miles an hour he could not be convicted of manslaughter in the commission of an unlawful act; and in the motion for a new trial it is contended that the court erred in giving in charge .to the jury certain parts of section 10 of the motor-vehicle act of 1915 (Ga. L. Ex. Sess. 1915, p. 112), because those parts of the statute are too general and indefinite to be understood, and are void for uncertainty. In support of this contention Hayes v. State, 11 Ga. App. 371 (4), and Empire Life Insurance Co. v. Allen, 141 Ga. 415 (1), are cited by counsel in their brief in this court. The provisions referred to are set out in special grounds 1 and 2 of the motion, as follows:</p> <p>(1) “No person shall operate a motor-vehicle or motorcycle upon any public street or highway at a speed greater than is reasonable and safe, not to exceed 30 miles per hour, having due regard for the width, grade, character, traffic and common use of such street or highway; or so as to endanger life, limb .or property in any respect whatever.” This it is contended is too general and indefinite except as to the provision limiting speed to 30 miles an hour.</p> <p>(2) “Upon approaching or passing any person walking in the roadway, traveling any public street or highway, or any horse or other draft animal being led, ridden or driven thereon, or upon any bridge or crossing at an intersection of public streets or highways, the operator of a motor-vehicle or motorcycle shall at all times have the same under immediate control.”</p> <p>In the 3d special ground of the motion for a new trial it is complained that the judge, after giving to the jury in his charge the form of verdict to be rendered if they should find the accused guilty of involuntary manslaughter in the commission of an unlawful act, added: “ Get the wording of these particular verdicts, gentlemen.” It is contended that this was error because it was calculated to impress the jury that the judge thought that this form of verdict was the one that should be returned.</p> <p>3. In ground 5 it is alleged that the court erred in not charging the jury in accordance with the contention of the defendant’s counsel that they must determine that the speed was in excess of 30 miles an hour, before they could find that the defendant was guilty of an unlawful act in operating the automobile at a rate of speed greater than was lawful.</p> <p>4. In ground 6 it is complained that in charging the jury the judge omitted from his statement of the defendant’s contentions, as to efforts to avoid striking the child, the contention that the defendant applied the brakes of the automobile as soon as he saw that the child was running toward the portion of the street in, front of the automobile.</p>

<p>Conviction of assault with intent to rape; from Terrell superior court — Judge Worrill. October 4-, 1919.</p>

<p>Complaint; from Jasper superior court — Judge Park. November 10, 1910.</p>

<p>1. In recommitting this case to the auditor, it was not error for the trial judge, instead of recommitting the case generally, to- direct that- the auditor, from the pleadings, the testimony already introduced, and the record in the case, amend his findings and show whether Mrs. Lamar ratified the loan of her funds to the Lovejoy Company by the defendant; this direction being in accord with a direction previously given by the Court of Appeals in this case (20 Ga. App. 499, 93 S. E. 153).</p> <p>2. This court can not as a matter of law say that there is no evidence to support the verdict on the issue raised by the exceptions of fact to the finding of the auditor.</p>

<p>Action for damages; from Pulton superior court— Judge Pendleton. December 8, 1919.'</p> <p>The action was for damages on account of personal injuries alleged to have been caused by slipping and falling when the plaintiff— a waitress in the defendant’s café-—’Stepped upon “a great wad or chunk of butter” on a tile floor in an unlighted and dark part of the café. The petition as amended alleges, in brief, that she commenced work in the café at f o’clock a.m. on the 30th of June, 1919, and in the course of her work and at the direction of the manager of the café she went from the place of serving meals and delivering lunches to get for guests small pitchers of cream which were on a table where other servants were washing dishes at a place behind a partition in a corner at the back of the café, that the lights were all out in that place, and the shadow of a tall counter was upon the floor at the door opening into it, so that she could not see under her feet when she stepped upon the butter and grease and slipped and fell near the table on which were the cream pitchers; that she was without negligence, because she was doing exactly what she was directed to do by the person who was in charge of the café at the time, and, on account of the darkness, could not see; that she was a stranger and had just come into the café as a servant, a few minutes before that time, and knew nothing of the café, except as she was told by the management, and had no opportunity to protect herself, and could not by reasonable diligence have known of the condition of the floor where she fell. It is alleged that the defendant knew “ the circumstances and the unsafe condition and the darkness,” and was negligent in not having the café in a suitable condition to make it safe for the plaintiff to wait upon the guests as she was directed, in not having lights in the café so that she could see the place described, where she was directed to walk, and in not having the table out in the light where it could be seen and easily approached, and in directing her to go to the table when it was in an unsafe condition, which was unknown to her.</p>

<p>Conviction of manslaughter; from Wilkinson superior court — Judge Park. March 9, 1920.</p>

<p>Complaint; from city court of Nashville-—Judge Smith. February 20, 1920.</p> <p>In this case a judgment, reciting that no defense had been interposed, was rendered against the defendants by the judge of the city court of Nashville on December 18,. 1916, at the term to which the suit — an action on a promissory note —was brought; and on the same day one of the defendants filed a plea which set up- that the note sued on was procured by threats of a criminal prosecution against his brother. In November, 1919, he offered and the court allowed an amendment by which he added to the plea the following allegation: “At this the first term of the court and before judgment in the case, defendant files this his plea to the merits, and shows that he signed said note as surety . . because of threats and coercion used by the plaintiff E. A. Hendricks, the purpose of this amendment being to show constructively that the original plea was filed in terms of the law before any judgment was rendered in the case.” At the February term, 1920, on the call of the case, the plaintiff presented a written motion to strike the defendant’s answer, because judgment was rendered against the defendants at the December term, 1916, and, as there was no motion to vacate the judgment, they were bound thereby. This motion was overruled, and the judgment overruling it is the judgment complained of in the hill of exceptions, error being assigned thereon for the following reasons: (a) It appears from the record that on December 18, 1916, the ease was in default, and upon the call of the case the court entered up judgment in due and legal form, of which the defendants had notice, or under the law were charged with notice, and the judgment, until set aside and vacated upon proper proceedings, is binding on the defendants. (6) More than three years having intervened since the rendition of the judgment, it could not be set aside by motion, (c) No other legal direction could have been given to the case than to sustain the motion to strike the plea and let the execution in favor of the plaintiff proceed, (d) The sustaining of the motion would have been a final determination of the case, and the order overruling it was contrary to the law of the case.</p> <p>A motion to dismiss the writ of error was made by the defendant, on the ground that the bill of exceptions was premature. After the dismissal of the writ of error the plaintiff filed a petition to the Court of Appeals to be allowed to file or use, as exceptions pendent lite, the copy of the bill of exceptions, then of file in the office of the clerk of the city court of Nashville.</p>

<p>A condition of the probation of the accused having been violated by failure to pay $10 per month for the support of his child, under the provisions of a sentence for the offense of abandonment of the child, in which the penalty imposed was a fine of $25 and costs (which he paid) and service in the county chain-gang for a term of six months, the court did not err in ordering that he be turned over to the warden of the chain-gang to serve the remainder of the term of six month's.</p>

Conviction of assault with intent to rape; from Emanuel superior court — Judge Hardeman. April 5, 1920. As to the argument of counsel the court instructed the jury as follows: “ In determining the guilt or innocence of the defendant the court instructs you now that the opinion of counsel in the case is .not to control you at all. Assertions by counsel, either way, about a party’s guilt or innocence is a matter that the jury has no right to consider.

<p>Conviction of assault with intent to rape; from Emanuel superior court — Judge Hardeman. April 5, 1920.</p> <p>As to the argument of counsel the court instructed the jury as follows: “ In determining the guilt or innocence of the defendant the court instructs you now that the opinion of counsel in the case is .not to control you at all. Assertions by counsel, either way, about a party’s guilt or innocence is a matter that the jury has no right to consider. The jury passes on the evidence; the province of counsel is to discuss the evidence and not express any opinion about what its conclusion ought to be; that is for the jury to pass on.” Error in so charging is alleged in the motion for a new trial, the movant contending that the court thereby curtailed the right of argument of counsel for the movant, and that it was violative of the provisions of the constitution of this State that “ No person shall be deprived of the right to prosecute or defend his own cause in any of the courts of this State in person, by attorney, or both” (art. 1, sec. 1, par. 4), and that “Every person charged with an offense against the laws of this State shall have the privilege and benefit of counsel” (art. 1, sec. 1, par. 5). In a note to this ground of the motion the judge states that the charge complained of therein was given because the solicitor-general, at the conclusion of his argument, expressed his personal opinion that the defendant was guilty, and the defendant’s counsel objected to this expression of opinion and moved for a mistrial.</p> <p>On the presumption of innocence the court charged as follows: “Hnder the law of this State every man who is charged with crime, when he pleads not guilty, is presumptively not guilty. That is a presumption of law, that he is not guilty. That is not a conclusive presumption. If it was, that would end the case as a matter of course. That is a mere prima facie presumption, what is known as a rebuttable presumption. There are presumptions of law and presumptions of fact; that is a presumption of law as to his innocence.” It is alleged that this was error because the doctrine as to the presumption of innocence is not stated therein as clearly and correctly as the movant was entitled to have it presented, and it tended to confuse the jury and failed to safeguard the interests of the accused to the degree that the law demands.</p>

<p>Kule; from Whitfield superior court — Judge Tarver. April 8, 1920.</p>

<p>Certiorari; from Carroll superior court — Judge Terrell. March 17, 1920.</p>

<p>Indictment for assault with intent to murder; from Marion superior court — Judge Howard. March 20, 1920.</p>

<p>Money-rule; from Miller superior court — Judge Worrill. April 19, 1920.</p>

<p>Indictment for misdemeanor; from Irwin superior court — Judge Bye. April 10, 1920.</p>

<p>Indictment for the manufacture of liquor; from Upson superior court — Judge Searcy. April 24, 1920.</p>

<p>Accusation of gaming; from city court of Macon—-Judge Guerry. April 20, 1920.</p>

<p>Indictment for possession of liquor; from Harris superior court — Judge Howard. May 3, 1920.</p>

<p>Indictment for personating another; from Harris superior court — Judge Howard. May 3, 1920.</p> <p>The indictment charged Alonza Sturdivant with the offense of felony, for that on January 29, 1918, in Harris county, he unlawfully, falsely, and fraudulently personated another, “to wit, that he did then and there represent himself to the Bank of Chipley and to W. B. Wisdom, cashier of said Bank of Chipley, that he, the said Alonda Sturdivant, was the person of Alonza Gholston, a son of Tom Gholston,'with the intent of fraudulently obtaining money from said Bank of Chipley and said W. B. Wisdom, cashier, the said false and fraudulent representation as aforesaid being with the intention of fraudulently procuring and obtaining money in the sum of sixty-five dollars from said Bank of Chipley and said W. B. Wisdom, cashier, which said representations were false and fraudulent and made with the intent to cheat and defraud said Bank of Chipley and said W. B. Wisdom, cashier, contrary to the laws of said State,” etc. The defendant demurred on the grounds: (1) .The indictment fails to set out any crime under the laws of this State. (2) It does not set out with sufficient certainty the charge of personating another; it fails to set out the manner 'and details of any transaction showing fraudulent intent; it fails to set out any special manner in which false representation or personating another was done by issuing a check or otherwise; and the defendant was not, under the indictment, placed on notice of the facts or circumstances relied on for conviction.</p> <p>On .the trial W. B. Wisdom testified, that on January 29, 1918, he was cashier of the Bank of Chipley and saw Alonza Sturdivant, the defendant, sign a certain check on the Bank of Chipley; the witness referring to a check exhibited to him and later introduced in evidence, which was for $65 and was signed: “Lonzy Gostie.” The witness further testified: "I had a conversation with the defendant. I had seen the negro around Chipley for a long time, and thought I knew him, and he wrote that check and said his name was Alonza Gholston, I said: ‘You are not Alonza Gholston; you are Alonza Sturdivant/ I says, ‘I know Judge Sturdivant, and know your folks/ I-says, ‘You live out here at Mr. Willie Williams’, or live on Mr. Willie Williams’ land/ He says, ‘No sir; I am Tom Gholston’s boy, and live here with Kube Collier.’ So I stepped out from behind the counter, and thought I would get outside there to some other darkeys out there and ask these negroes if this was Alonza Sturdivant. I didn’t think I was mistaken in the negro, but he stood up and told me so point blank that he was another darkey that I thought may be I might be mistaken. So I walked out right to the next door, . . and some darkeys were standing there, but before I could ask them and get back this darkey was gone. He didn’t wait to get his change. . . He presented the check to the bank; . . he just walked up to the window and asked for the money, and the check was written out, and he just signed it, and wanted to get the money on it; and right after that time was when I had my conversation with him. I didn’t give him any money. . . . Mr. Jordan . . filled out the check. Mr. Jordan .occupied the position of assistant cashier.” The witness testified that he knew Tom Gholston, a negro who prior to that time had a checking account at the bank, and that Alonza Sturdivant had an account at the bank in a previous year. “I told the solicitor that Gholston, the man whose name is signed there, did have an account with the bank prior to that. He did not have any money that day. He had no account at all. The records show . . he drew it out January 9th, . . twenty days prior to the time this check was written.”</p> <p>The defendant in his statement at the trial said that he asked Alonza Gholston to lend him $65, and Alonza gave him permission to sign his (Alonza Gholston’s) name to the check and get it, and he (the defendant) did so. The defendant further said: "I told Mr. Wisdom, when he said, ‘That ain’t Alonza Gholston, that is Alonza Sturdivant,’ I told him I was writing the check on Tom Gholston’s son that lived out at Mr. Collier’s. He just misunderstood me to say that I was Alonza Gholston. I wouldn’t have said that to him and knowing me personally. I had been knowing Mr. Wisdom eight or ten years.”</p> <p>One of the grounds of the motion for a new trial was that the court erred in admitting in evidence the check referred to, over the objections that it was ‘‘irrelevant, immaterial, and prejudicial,” and that under the indictment it was inadmissible.</p>

<p>Action on contract; from Fulton superior court — Judge Pen'dleton. July 1, 1919.</p> <p>By a written contract made in 1906 between the Phosphate Mining Company and the Atlanta Oil & Fertilizer Company, the Phosphate Company agreed to sell and the Oil Company to buy certain phosphate rock to be delivered at the mines of the Phos.phate Company in Florida at a stated price and in specified amounts through a series of years ending in 1916. On October 15, 1912, the Phosphate Company brought an action against the Oil Company for an alleged breach of the contract. In the second count of the petition (the only count remaining in the case at the last trial)- it was alleged that on September 25, 1912, the plaintiff received written notice from the defendant to the effect that the defendant was unable to carry out the entire contract and declined to give any shipping instructions in regard to the movement of phosphate rock in the future, and that from time to time thereafter the defendant declared that it would not conform to the terms of the contract, and therefore the defendant breached the contract in toto to the end of its term. By amendment of this count, on the last trial, the plaintiff sought to recover as damages a sum representing .the difference in the contract price and the market price of the phosphate rock at the time and place of delivery agreed upon, besides interest, and prayed judgment for $38,999.30 as “principal damage,” and for $17,744.57 as interest. The trial resulted in a verdict in favor of the plaintiff for the principal sum stated;</p> <p>In the defendant’s amended answer it is alleged that on or about July 1, 1912, the defendant made an agreement with the Empire Cotton Oil Company, the purchaser of its manufacturing plant, by which that company took over the contract in question and became the assignee of the contract and agreed to receive and pay for the rock contracted for therein; that on or about July 2, 1912, the plaintiff was notified of this by telegram and letter; that the plaintiff, by letters on July 3 and July 5,1912, consented to the transfer, and that it further recognized and acted upon its acceptance of the Empire Cotton Oil Company as transferee of the contract, by withholding the July, 1912, shipments under the contract, at the sole instance and request of the Empire Cotton Oil Company; that while the plaintiff and the Empire Cotton Oil Company subsequently undertook to recede from the position taken by them in regard to the transfer of the contract and the plaintiff’s assent to it, the plaintiff was not released, and the Empire Cotton Oil Company was bound to receive the phosphate rock and pay for it according to the terms of the contract; that “any release of the Empire Cotton Oil Company, either expressly or by the conduct of the plaintiff, was the sole cause of any loss to the plaintiff that it may have sustained under said contract, and this defendant is not liable therefor, and it was the duty of the plaintiff to hold the said Empire Cotton Oil Company to said contract, • and to save both itself and this defendant from any loss by reason of any nonperformance thereof; and so it says it is not liable to the plaintiff in any sum whatever.”</p> <p>In the motion for a new trial it is contended that the effect of the decision in this case in 20 Ga. App. 662 (8), was to hold, as charged by the court below on the trial then under review, that if the plaintiff consented to the transfer of the contract to the Empire Cotton Oil Company, the defendant would be released from further liability; and that on the last trial the court erred in refusing to charge the jury to this effect, and in charging in effect that in order to release the defendant it must be shown not only that the plaintiff consented to the transfer of the contract by the defendant to its successor, but that the parties agreed, either by express language or impliedly, that the defendant should be released from further liability. It was contended also that the court erred in using the term “ novation,” and in not explaining to the jury the meaning of this technical term. These contentions cover substantially the exceptions in several grounds of the motion for a new trial as to parts of the following instructions to the jury: “The burden is on the defendant to establish the defense that there has been a novation in this case, and that therefore they are not liable. . . The defendant files a defense which it says prevents the plaintiff from recovering anything. It says that there has been a novation of the contract, and that it was released by novation, . . that it had a contract with the plaintiff with reference to the rock, and that it transferred that contract to the Empire Cotton- Oil Company, and I charge you that the transfer of that contract to the Empire Cotton Oil Company would avail, provided certain other things happened.” “If the transfer was made by the defendant company to the Empire Company, and if the plaintiff, the Phosphate Mining Company accepted the transfer, knew about the transfer and accepted it, and defendant was relieved from further liability, if the Empire Company was substituted for the defendant company, then that would be a novation, and the plaintiff would not have a right to recover, but. it would be necessary for you to determine with reference to these things. You look to the testimony in the case and see whether or not there was an acceptance — a notice of acceptance— on the part of the Phosphate Company of this transfer by the Oil Company to the Empire Company. Did they know about it, and did they accept that transfer? And if they accepted that transfer and the Oil Company was released, the Oil Company would not be further liable in the case. . . The Oil Company would be released either by express contract or by implication, and you look to the testimony in this case and see whether or not it had been so released. An express contract would be an express understanding between the parties. An implied contract would be a contract that would be inferred from the facts and. circumstances of the case. You look to all of the facts and circumstances in the case about these transfers and what was said about them, and all that passed between all the parties, and if it was understool between all three of the parties, understood and agreed by them, all three of them, that the Oil Company was released, why that would be a novation, and the plaintiff cannot recover, but, if otherwise entitled to recover, the plaintiff can recover from the Oil Company.”</p> <p>In regard to the plaintiff’s duty to lessen the damage to it so far as avoidable, it was contended that the plaintiff, having accepted the defendant’s transfer of the contract to the Empire Cotton Oil Company, should have held the Empire Cotton Oil Company to the contract; and the defendant requested the court to charge the jury that if the plaintiff assented to the transfer of the contract and afterwards released the Empire Cotton Oil Company from its obligations under the transfer, “the plaintiff could not recover from the defendant such losses as would have been saved had the Empire Cotton Oil Company not been released from its obligations under the transfer; ” and requested the court to charge also as follows: “ I charge you as a matter of law that when the defendant transferred the contract to the Empire Cotton Oil Company it breached the contract, but that if the plaintiff accepted that breach, then the duty to minimize the damage arose, and the plaintiff was bound to avail itself of any circumstances which then existed which it ought reasonably to have availed itself of in order to minimize the damage.” The refusal to charge as requested is complained of in the motion for a new trial. On this subject the court charged as follows: “ It is also contended by the defendant that it was the duty of the plaintiff, if there had been a breach of the contract and that breach had been accepted by the plaintiff, and bringing suit would be an acceptance, that the Oil Company breached the contract, and transferring the contract to the Empire Cotton Oil Company would amount to a breach, and, if they breached the contract and the plaintiff accepted that breach expressly or by filing suit, then it was the duty of the plaintiff to avoid any damage that it could reasonably avoid under our law; and I will read you the section of the code which expressly provides for that: ‘Where by a breach of contract . . one is injured, he is bound to lessen the damages as far as is practicable by the use of ordinary care and diligence.’ [Civil Code of 1910, § 4398.] And ‘ordinary care’ means that care that every prudent person would exercise under the same or similar circumstances.” It is alleged that the court erred in so charging, because “ the jury might well conclude from the charge that the duty to minimize the damage did not result until the acceptance of the breach by bringing suit, when the court should have charged the jury that the acceptance of the transfer was the acceptance of the breach, and that then and at that time the duty to minimize the damage existed, and that if any loss resulted to the plaintiff by reason of the plaintiff’s failure to avoid any loss which it could reasonably avoid, then and in that event the plaintiff could not recover such loss or damage from the defendant.”</p> <p>The court charged: If there was a breach of the contract, “ that is, if the defendant refused to accept the rock which it ought to have accepted under the contract, and it is otherwise liable under the instructions which I .will give you, the plaintiff would have the right to recover; and if it has the right to recover, the amount of the recovery would be the difference between the market value and the contract price for this rock.” It 'is alleged that the court erred in so charging, because (1) this charge ignores the defense that the plaintiff’s consent to the transfer of the contract justified the defendant in refusing to take and pay for phosphate rock after the date of the transfer and its acceptance by the plaintiff; and (2) it ignores the duty to minimize damages from the date of acceptance of the transfer. It is contended that the court should have charged the jury that the plaintiff could not recover in any event more than the difference between the contract price and the cost of production.</p> <p>The court charged: “You determine what-the amount of tons is that ought to have been delivered under the contract; and if the plaintiff is entitled to recover, you determine what is the difference between the contract price and the market value; . . and if the plaintiff is entitled to recover, he will be entitled to recover the difference between the market value and the contract price.” This is alleged to be error for the following reasons: The contract is in writing, and its construction was for the court, and not for the jury. The contract provides: “Buyers are at liberty ... to diminish the quantity called for in any year to the extent of not exceeding 10 per cent., provided that the quantity to be taken shall not be less than buyer’s consumption, and provided further that notice of such diminished demand be given seller 12 months in advance of such change.” It is undisputed' that the seller was notified that the buyer had no demand for consumption and no capacity for consumption after July 1, 1912, and had sold its plant and transferred its contract to the Empire Cotton Oil Company; and the purchaser’s refusal to take any rock operated at least to diminish the quantity specified in the contract to the extent of 10 per cent., beginning one year from the date of that notice. The court should have charged that after that date the quantity named in the contract would be thus diminished. And the court should have charged that if the market price went below the cost of production, it would at that point cease to be the measure of recovery, and the measure of recovery would then be the difference between the contract price and the cost of production.</p> <p>An expression of opinion that the jury should find for the plaintiff is alleged to have been made by the court in charging, “Yon look to all of the facts and circumstances in the ease and exercise your discretion as to whether or not, on this sum that you find as I have indicated to you, the plaintiff shall recover interest,” and if the plaintiff should recover interest, it should be added to the amount found for the plaintiff and the .verdict should be for one amount.</p> <p>In charging as to credibility of testimony, the court said: “As a general rule, if there is no criticism of the witness in any way, his testimony must be received when it refers to the facts.” It is contended that this instruction was misleading and “ was calculated to unduly ■ impress the jury with the testimony of the witness Lang, who testified as to the market value,” when there was an admission in the pleadings that the cost of producing the rock was greatly in excess, of the market value to which this witness testified.</p>

<p>Complaint; from Lee superior court — Judge Littlejohn. July 31, 1919.</p>

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

<p>Conceding for the purposes of this case that a presumption of negligence was raised against the railway company, under the Civil Code (1910), ' § 2780, by evidence that soon after a train had passed over its track a passenger’s dead body with bruises on the head was found beside the track, this presumption was raised only as 'to acts of negligence alleged in the plaintiff’s petition; and every alleged act of negligence which could have been the proximate cause of the death was disproved by the evidence. The plaintiff could not recover for other than the specific acts of negligence pleaded; and, the verdict rendered for the defendant being demanded by the evidence, the court erred in granting a new trial.</p>

Action on contract; from Fulton superior court—Judge Pendleton. October 21, 1919. Application for certiorari was denied by the Supreme Court. Cuero Cotton & Manufacturing Company sued Herbener & Son for a sum of money alleged to have become due by reason of the breach of a certain contract.

<p>Action on insurance certificate; from city court of Savannah — Judge Freeman. December 15, 1919.</p> <p>As a beneficiary “ dependent upon ” H. P. Gallagher, Fay Gallagher Warner, a minor, sought, in an action brought by next friend, to recover the death benefit provided for in a certificate in which she was named as the beneficiary, issued to H. P. Gallagher by the defendant, a fraternal benefit society of which he was a member. Although she was described in the certificate and in the original petition as his niece, she was not his niece, but a niece of his deceased wife; and by amendment to the petition it was alleged that she was “dependent upon” him at the time the defendant inserted her name as beneficiary in the certificate and up to the time of his death. This amendment was allowed over the objections that it attempted to change the plaintiff’s status as beneficiary and set up a new cause of action. Pendente lite exceptions to! the allowance of the amendment, as well as to the overruling of a demurrer to the petition, were ■ specified and sent up as a part of the record, and the final bill of exceptions, after stating these rulings and stating that these exceptions pendente lite had been filed, assigned error “upon the judgment overruling the said demurrer,” and “upon the judgment overruling said objections” to the allowance of the amendment.</p> <p>The defendant contended that under the evidence the plaintiff was not a “dependent” within the meaning of the law and of the certificate; the jury found in favor of the plaintiff. In the charge to the jury the judge, after charging that the plaintiff was not entitled to recover 'as a niece, charged, among other things, as follows: “ The only issue in this case, as I see it, is whether or not this young lady was a dependent of Mr, Gallagher, If she was, she is entitled to recover under this action on this benefit certificate. If she was not a dependent, then she is not entitled to recover. . . I have listened with a gréat deal of interest and have, been much instructed by the various authorities that have been submitted to me upon this question of dependency, and I have come to the conclusion that it is proper for me to charge you on that subject in this wise: With reference to contracts of this sort and these beneficiary societies, where the statute and the contract, including the by-laws, provide for the payment of benefit funds to persons dependent upon the members, the wottd ‘ dependent ’ means some person or persons dependent for support in some way upon the deceased. A ‘dependent/ as the term is used in reference to these policies, is one who is sustained by another or relies for support upon the aid of another. That does not mean (and excludes to us) the idea of being dependent upon some ohe for his favor or for his affection, or for companionship, or as a servant or a retainer. That idea of dependency is excluded. A dependent has been defined by the lexicographers as one who is dependent, one who is sustained by another or who relies on another for support, one who reasonably relies upon another for subsistence, nourishment, and support.” The court then gave the following instruction, the only one complained of in the motion for a new trial: “A person, whether a relative or .not of a deceased member of such an order to whom has been issued a certificate, who was in good faith supported by him, wholly or in substantial part, at home or abroad, because of a legal or moral obligation, or because of 'affection merely, may be designated as the beneficiary of such a member.” The words “or because of affection merely,” the motion states, are “the portion objected to and in which the court erred.” It is alleged that this language tended “to create the impression upon the minds of the jury that if one contributed to another because of affection for such person, whether any dependency actually existed or not, it would have the same effect,— that is, the plaintiff would be entitled to recover.” The charge proceeded as follows: “ The essential point is to determine dependency. Did this young lady depend for her support in any substantial or real sense upon Mr. Gallagher? Or were his benefactions and gifts to her, of one sort and another, simply the expressions of an affection, and not for the purpose of support and maintenance ? So, I say, if you find from the evidence that Mr. Gallagher made substantial contributions to the support of Miss Warner, but that she was not partially dependent on these contributions for her support, you would not be authorized to find for the plaintiff, and your verdict in that event would be . . for the defendant. If you find from the evidence that the insured, Mr. Gallagher, from time to time made to Miss Warner presents of clothing or money, or what not, and that they were made for the comfort of Miss Warner, and that she was not partially dependent upon these presents for support, you would find for the defendant. But should you find that Mr. Gallagher made contributions of clothes or money and they were substantial contributions, and that Miss Warner, within the life of the policy during which she was declared to be dependent, was as a matter of fact partially dependent upon Mr. Gallagher for a support, and the contributions and dependency existed as stated, you would be authorized to find for the plaintiff, upon her claim under this policy. . . You will bear in mind that this is a suit on a contract. ■ Whatever her rights are, no matter what the nature of the organization that issued the contract, they are bound by the four corners of this contract, and these four corners include the by-laws and rules of the organization, . . introduced in evidence before you.”</p> <p>The by-laws of the defendant provide that the benefit payable on the death of a member shall be paid “to the person or persons named in his certificate as beneficiary or beneficiaries, which beneficiary or beneficiaries shall be his wife, children, adopted children, parents, brothers and sisters or other blood relations, or to persons dependent upon the member.” By the act of 1914 as to fraternal benefit societies (Ga. L. 1914, p. 101, sec. 6, Park’s Code, § 2564 (v) ), cited in the briefs, it is provided that “The payment of death benefits shall be confined to” certain classes of relatives, “or to a person or persons dependent upon the member.”</p> <p>The benefit certificate sued on was issued in 1915. H. P. Gallagher’s wife was then dead and he had no child. From the evidence it appears that the plaintiff was then twelve years old and was living with her parents, and she- continued living with them for the remainder of Gallagher’s lifetime. He died in 1918. During this period her father was supporting his family, which included several other children, and his earnings ranged from $23 a week in 1915 to $36 a week in 1918. On direct examination the plaintiff testified: “I was dependent upon Mr. Gallagher before his death. The way in which I was dependent was that as long ago! as wlien I was a little over two years old I went off to Texas with my uncle, . . and stayed three years with them and did not know any other father and mother except my uncle and his wife; and my mamma and papa wrote for me, but I did not want to leave, and they wanted to legally adopt me, but my father and mother objected and brought me home; and so my aunt died and she was brought here, and my uncle came with her, and when he came he gave me clothes and furniture, and he went back to Texas and sent me money, sometimes as much as $50 at one time; and then he left for Texas for good and came to Savannah and stayed a while, and then went off to Cleveland; and from there he also sent me money, clothes, or anything I wanted. He told me to write him and let him know if I needed anything and lie would send it, and I would always write when I wanted anything, and I always felt towards ■ him just as a father. I looked upon him as a father and looked to him to furnish me those things. I kept in correspondence with him; while he was away the whole time he wrote me, and always signed his letters, ‘Tour Texas Daddy/ I always wrote to him whenever I needed anything and wanted it, and he always responded in furnishing those things. I am named after him. After his wife died he sent all the furniture they had home, and also all of her jewelry; he gave it to me, and he left all the silver to mother., He brought it with him. He left me his trunk and his suitcase, and said he would not need it, and he always told me everything at his death was mine, and that he had no relatives at all.” On cross-examination the plaintiff testified, that after her return from her three-years visit to Mr. Gallagher and his wife in Texas, they sent clothing and mtfney to her, and he would send to her “every month, from time to time,” articles that she needed; she did not have to write; she wrote and asked for things and he responded; he kept that up until he died; she received, she supposed, five or six hundred dollars after her return from Texas; she needed things and he voluntarily gave them to her. The plaintiff’s mother testified, that Mr. Gallagher sent things to the plaintiff from the time she was a month old until he died, and he told the plaintiff he would always support her; “he contributed to her support all the way through; he said he felt like she was his own child and was all he had; . . he contributed to her during this time something between five and six hundred dollars in actual money, besides clothing and the household furniture; he always fitted her out each season;” her father “contributed vexy little to her support;” the wages he made were not sufficient; “of course her father supported the family and she lived with us; ” “ she lived at home, ate at home, and stayed at home the same as the rest of the children; all that she got outside of that was what was given her by Mr. Gallagher.” “ He just sent money for her support; he said he intended to support her just the same as if she' was with him, because he considered her his own child;” “he contributed right along, all the time, every month or two; sometimes he would send $50, sometimes $25; . . he sent $50 some months before he died.” “I suppose it was a voluntary gift on his part; he was under- no obligation from a parental standpoint; he knew I had a large family, and it was all we could do to do for those.” The plaintiff introduced in evidence an affectionate letter of H. P. Gallagher to her, dated December 12, 1915, referring to Christmas and saying, ‘You take this $50 and buy yourself and also something for the others after you are fixed up yourself,” and concluding, “I still remain your Tex Dady.”</p> <p>One of the grounds of the motion for a new trial was that the letter of H. P. Gallagher to the plaintiff was admitted in evidence over the objection that it showed merely a gift to her and to others, and did not tend to show dependency. The plaintiff’s testimony on direct examination was objected ta as a whole, the defendant objecting “to bringing out anything of that kind, . . for the reason that the policy sets out that -she is a beneficiary as a niece, and the application for insurance was not made for a dependent, but made [for one named] as a niece.” In the motion for a new trial the admission of this testimony was alleged to be error because in this action as originally brought the plaintiff was designated as a niece, and the testimony was intended to support 'a new cause of action, to wit, dependency; and “it did not itself show such a ground, even if such a claim could now be set up.” Iu another ground it is alleged that the court erred in admitting in evidence, over the objection that it had nothing to do with the present cause of action, a benefit certificate issued by the defendant in 1909 to H. P. Gallagher, .naming his wife as beneficiary, which was surrendered on the issuance of the certificate sued on, and on which was written a direction by him that a new certificate, naming Pay Gallagher Warner as beneficiary, be issued in lieu of the surrendered certificate. Exceptions were taken also to the refusal to grant a nonsuit and the refusal to direct a verdict for the defendant.</p>

<p>Trover; from city court of Carrollton—Judge Beall. December 15, 1919.</p>

<p>Certiorari; from Chatham superior court—Judge Meldrim January 23, 1920.</p>

<p>Action for damages; from Columbia superior court—W. M. Howard, judge pro hac vice. February 20, 1920.</p> <p>The petition alleged that “plaintiff was a passenger being transported on defendant’s train from Robinson to Grovetown. Plaintiff gave to the conductor her ticket reading from Robinson to Grovetown, and said conductor well knew that she was to get-off at Grovetown, and knew that she was riding with her infant child and a nurse. . . When the train upon which plaintiff was riding reached Grovetown plaintiff undertook to alight from said train as rapidly as possible and as was consistent with the safety of herself and child, but the said conductor either wilfully or forgetfully did not allow plaintiff sufficient time to alight from said train, but set the step on the ground and allowed passengers to crowd in said train, crowding up the steps just as she was coining out, and just as she started to descend the steps a passenger who, due to negligence of the said conductor, had been allowed to rush in said train, struck petitioner, bumping against her with great force and knocking her down the steps to the ground. Plaintiff sustained severe injuries by reason of said fall;” which injuries are described; wherefore she prays judgment against the defendant in the sum of $5,000.</p>

<p>Complaint;' from city court of Cairo—Judge Rigsby. December 31, 1919.</p>

<p>The verdict being authorized by evidence and approved by the trial judge, this court can not disturb it.</p> <p>A party will not be heard to complain of instructions given to the jury at his request.</p>

<p>Indictment for kidnapping; from Twiggs superior court — Judge Kent. February 23, 1920.</p>

<p>Complaint; from city court of Brunswick—Judge Butts. March 16, 1930.</p> <p>Certain lumber of the Savannah River Sales Company, a corporation engaged in the business of selling lumber, was sold to N. W. Findley by C. W. Green, superintendent of the plant of a lumber manufacturing company — the Savannah River Lumber Company — which was supptying lumber to the first-named company, and Findley gave to Green, in payment for the lumber purchased, checks payable to the Savannah River Lumber Company. Neither company received the checks or the proceeds, but the bank upon which-the cheeks were drawn paid them upon Green’s unauthorized indorsement of the lumber company’s name, and he received the proceeds. The sales company subsequently brought this action against Findley for the alleged value of the lumber obtained by him from Green. The defendant in his answer denied the material allegations of the plaintiff. On the trial the court, at the conclusion of the evidence, directed a verdict for the defendant; to which the plaintiff excepted.</p> <p>A written agreement between the sales company and the lumber company, introduced in evidence, provides that all lumber manufactured or purchased by the lumber company shall be purchased by the sales company, and the title to all such lumber shall pass to the sales company without further formality immediately when manufactured or purchased by the lumber company; and that where such lumber is not delivered upon the premises leased to the sales company by the lumber company for that purpose, and remains in the physical possession of the lumber company for further work on it, the lumber company shall hold it as agent for the sales company. I. H. Fetty testified: “I am president of the Savannah River Lumber Company and am also president of the Savannah River Sales Company. . . I employed C. W. Green as superintendent of the Savannah Lumber Company’s plant at Brunswick, and the agreement of that employment was verbal. C. "W. Green was employed as superintendent in charge of . . and operating the property,” and “ had no authority whatever with reference to indorsing the name of the Savannah River Sales Company or the name of the Savannah River Lumber Company on any checks made payable to either of those companies,” and “no authority to receive checks as superintendent. I presume if he sold' lumber in the yard to a man and the man said, ‘Here’s a check payable to the Savannah Eiver Sales Company,’ he would have the right to take the check and turn it over to the cashier, the sales company’s agent, and deliver to him. . . At each of our operating plants we have an agent whose duty it is to handle all money or checks and other cash that passes through the office, and no one else has any authority to handle the funds.” It was testified, that the defendant admitted that he got the lumber from C. W. Green and admitted that it was of the value of the amounts of the checks mentioned above. II. G. Boberson testified, that he was general auditor of the Savannah Eiver Sales Company and of the Savannah Eiver Lumber Company and that it was a part of the duties of C. W. Green, as superintendent of the Savannah Eiver Lumber Company’s plant at Brunswick, to care for the lumber produced by that plant, which was the property of the -Savannah Eiver Sales Company; that he did not of his own knowledge know the scope of Green’s authority; so far as he knew Green had the general authority given to superintendents of plants of the Savannah Eiver Lumber Company; that the handling of the lumber was governed by the written contract mentioned above; that T. E. Anderson was the joint agent of the two companies at Brunswick, and he was the only person with authority to handle their funds there; that the companies had separate corporate records, but the management of the companies was in the same persons, and all the employees were employed by both companies under one salary; that the only connection Green had with the Savannah Eiver Sales. Company was to see that the lumber was manufactured and delivered in a marketable condition, and it was then his duty to take care of it and account for it and dispose of it as instructed by the Savannah Eiver Sales Company; the sales company’s sales were “confined to wholesale dealers in the northern markets” and it “ only did wholesale and retail business in Brunswick to a limited extent; it was not the company’s practice to sell lumber locally, except as an accommodation;. the payments received for lumber sold in Brunswick were turned in to the Savannah Eiver Sales Company and it accepted those payments without question; ” there were sales which “were collected for by C. W. Green and turned in to the company,” and it “made no objection;” the remittances for these sales “came through the hands of the company’s agent and not from Green; . . as a matter of practice Green, no doubt, frequently actually collected for the sales of lumber at Brunswick locally; at other times, no doubt, he merely notified the agent that the sale had been made, and the agent would collect. I say cno doubt ’ because I have no means of knowing who was the first person who received the money from the purchaser; ” it was the agent’s duty to collect all monies due either of the companies; if Mr. Green elected to personally collect the proceeds of any sale, it was his duty to turn over the proceeds to the joint agent, and if the lumber was paid for'by check, it was Mr. Green’s duty to turn the check over to the agent, and it was the agent’s duty to send the check to Savannah; the Savannah Biver Sales Company obtained judgment against Green for the amounts of sales made by him, “among which are those of N W. Findley.” No evidence was introduced by the defendant.</p>

<p>Action on contract; from Cobb superior court — Judge. Blair. April 9, 1920.</p> <p>The action was for breach of contract by failure to provide for the support and care of the plaintiff as stipulated in his deed conveying certain land to the defendant. The main question argued in the briefs of counsel was to the measure of damages. The plaintiff alleged, that he was 60 years old at the time of making the deed, that at the time of filing the suit he had a reasonable <?xpectancy of 13 years of life, that the sum necessary for his support when the deed was made and which Was still necessary was $150 a year, and that he was damaged in the sum of $2,500. It was contended on his part that the contract was an entire continuing contract, the breach of which gave the right to recover the entire value of the contract. The charge of the court was in accordance with this view, and the verdict was for $1,627.50. It was contended on the part of the defendant that if there was a breach of the contract, it was merely a partial breach, and the recovery should not exceed the value of the support withheld up to the time of the filing of the suit. In his motion for a new trial he excepted to various instructions of the court as to the measure of damages, and to the admission of life-expectancy tables as evidence, and the admission of testimony as to what it would cost to. support the plaintiff at the time of the trial.</p> <p>The deed was made on March 2, 1915, and conveyed to Thomas Low (the defendant) 80 acres of land in consideration of $1 and for the further consideration that “the said Thomas Low is to take care of Steve Slocum [the grantor] the rest of his natural life and provide food and clothing and the necessaries of life in a manner suitable and commensurate with his circumstances in life, including expenses during sickness, and to give him and to bear the expenses of a Christian burial at his death.” The suit was filed on February 19, 1917, and was tried on March 10, 1920. In the plaintiffs petition it is alleged that the defendant, after taking possession of the land, tore down the house -thereon in which the plaintiff had been living, removed the lumber and built a barn out of it, and built in place of the residence a small shack in which the plaintiff “has been compelled to live ever since,” although it was unfit for that purpose, and that the defendant has wholly failed and refused and still fails and refuses to take care of, feed, and clothe plaintiff.</p>

<p>Indictment for sale of liquor; from Whitfield superior court — Judge Tarver. April 7, 1920.</p>

<p>Attachment; from city court of Atlanta—Judge Keid. March 13, 1920.</p> <p>The action was for breach of a contract of sale alleged to have been made in certain letters, which the defendant in his demurrer contended did not constitute a complete and binding contract and were not sufficient under the statute of frauds. The letters (except heading, address, and signature) were as follows: (1) Plaintiff (at Atlanta, Ga.) to defendant (Birmingham, Ala.): April 29, 1919. “Kindly enter our order for the following, to be shipped shipping instructions to address below: Terms 2% off 10 days. F. o. b. Atlanta, Ga. 1 car 1x4 B. & Bet. flooring. 38.50 m. The above stock to be manufactured from K. D. stock Standard match flat backed and bundled. Ship to instructions to follow.” (2) Plaintiff to defendant: May 2, 1919. “Referring to our order No. 1032, for 1 car 1x4 B. & Bet. flooring, beg to advise you to please let us have invoice and bill of lading as soon as possible, and let same come to us Atlanta, Ga. Hoping that you will give this your prompt attention, we beg to remain,” etc. (3) Defendant to plaintiff: May 31, 1919. “I am in receipt of your letter of the 30th inst. On account of a wreck that we have had on your railroad, your order for B. & Better flooring will necessarily be delayed indefinitely. I am sorry of this, but I am helpless about shipping it until we get this going again.” (4) Plaintiff to defendant: June 26, 1919. “Relative to our order car 4" B. and Bet. flg., beg to say that we have written you several times about this car of material, but it doesn’t seem to get results. Now, we must have something definite, and if you want us to go in the market and buy this car of stock for your account, please advise us, as our customer is threatening to do likewise, therefore something must be done about this. Trusting that you will let us have something definite by return mail, we beg to remain,”» etc. (5) Defendant to plaintiff: June 28, 1919. “I am in receipt of yours of the 26th inst., in re 1 car B. & Better 4 in. flooring covered by your order 1032. As we have written you several times, the delay on this shipment was caused on account of so much trouble on Dixie Railroad, the road this would have to be shipped over, but feel safe in advising you now that this flooring will go forward next week. Trusting this will not inconvenience you to any great extent,” etc.</p> <p>The petition as amended sets out these letters and alleges, that the plaintiff’s order bore the number 1032, and that the two letters of the defendant, set forth above, constituted a complete and unqualified acceptance of the plaintiff’s order; that the contract calls for one car of B. and Better flooring at the price of $38.50 per m.; that there is a universal usage and custom among those engaged in the lumber business to the effect that when a “car of flooring ” is sold or purchased and the number of feet is not specified, the trade meaning of “ one car flooring ” is an average car of 20,000 feet, and according to the same usage and custom the letter “B” is used to represent and specify a particular grade of flooring which was well known to defendant and all dealers 'in lumber, and the abbreviation “Bet.” and the letter “m,” according to the said usage and custom, stand for the words “Better” and “thousand” respectively; that the usage and custom referred to was well known to the defendant, that the plaintiff and the defendant contracted with reference to it, and that it became by implication of law a part of the contract sued on in this case. It is alleged that under the law, shipment and delivery of the flooring in question should have been made within a reasonable time after instructions for shipping were given, no particular time for shipment being stipulated in the contract; that the time between June 26, 1919, and the date on which this suit was begun, September. 17, 1919, was a reasonable time within which to comply with the contract, but the defendant failed and refused to ship said lumber within said time, and the failure to ship within said time constituted a breach of the contract. It is alleged that the market price of the flooring described was $80.50 per thousand feet on September 17, 1919; and the plaintiff sues for the difference between this price and the contract price.</p>

<p>Indictment for sale of liquor; from Gordon superior court-—■ Judge Tarver. April 17, 1920.</p> <p>1. Carl Elrod was convicted at tlie February adjourned term of the superior court of Gordon county, 1920, under an indictment which charged that he sold intoxicating liquors on January 1, 1920. One of the grounds of his motion for a new trial was as follows: “ The court erred in overruling movant’s motion for a continuance, made in said case when said case was called for trial. This defendant, being sworn on said motion for continuance, testified: ‘The indictment in this case was returned yesterday afternoon. I at once sent for Mr. Eubanks to come to the jail and see me, and he came after dark. I have been in jail since Monday; this is Thursday. I gave him the names of the witnesses he wanted in this case. I gave him the names of J. D. Elrod, Mr. Willerson, John Osborn, and John Lay, and told him to have them summoned. Lay and Osborn are here, and my father and Mr. Willerson are absent. They are absent without my consent. I want them here. I expect to have them in court to-morrow morning at the meeting of the court, and I can not go safely to trial without them. My father lives over in Murray county, and Willerson lives up here in Gordon county. I expect to prove by each of them that they were at my house on last Sunday afternoon when Bob Steele came there, and they will swear that I did not let Bob Steele have any whisky, and that Bob Steele did not get any whisky at my place. These two absent witnesses are white men. Lay and Osborn are here and are negroes. This showing is not made for delay, but to got the testimony of the above witnesses.’ T. M. Watts, sheriff of Gordon county, testified on said motion: ‘The subpoenas for the defendant’s witnesses in this case were placed in my hands early this morning. I have,, had Lay and Osborn served. I have not had time to have Elrod and Mr. Willerson served. Mr. Willerson lives in the upper edge of this county, and Mr. Elrod over in Murray county in this State.’ M. B. Eubanks, attorney for defendant, stated in his place: ‘Last night while at supper the defendant sent for me to come to the jail to see him. I went as soon as I finished my supper. The bills had been returned and placed on the docket yesterday afternoon. When I got to the jail the defendant gave me the names of four witnesses above referred to. When I came back to the courthouse last night, the court still being in session trying the Byrd case, I gave the list of witnesses to the clerk, who issued them last night, and I instructed that they be served at once.’ The court overruled the showing for a continuance and ordered the ease to go to trial, which was done.” It is alleged that this was error because the movant’s showing was complete and the evidence showed that he had exercised due diligence in obtaining the presence of his witnesses, and the court, in overruling the motion for a continuance, denied to him his legal and constitutional right to have compulsory process for -attendance of witnesses in his behalf.</p> <p>On the trial E. King testified for the State that “on last Sunday” he and Bob Steele bought whisky from Carl' Elrod in Elrod’s house; and that he (the witness)- and Bob Steele went into the house together, and he did not see any other person there. Jim Johnson testified that he bought liquor from Carl Elrod eight or nine times, or more, in the last two years; “week before last was the last time” he bought any whisky from Elrod; E. King, Bob Steele, and others were there; he was not at Elrod’s house on Sunday; he bought some from Elrod at Bob Steele’s house “nearly two years ago.” Amos Boze testified that he bought whisky from Carl Elrod twice, some of it since Christmas; that he was at Elrod’s house Sunday, and got whisky, but did not then see Elrod; that another person went into the house for the whisky. Bob Steele did not testify. John Osborn and John Lay testified for the defendant that they were at the defendant’s house “last Sunday” afternoon, and did not see any whisky. The defendant made a statement at the trial, denying that he had sold whisky to- Steele or’ the others named in the testimony as purchasers.</p> <p>2. In charging the jury as to conflicting testimony, the court charged that it was their duty to reconcile such conflicts, if possible, so as to make each witness speak the truth, and without imputing perjury to anybody, “the law presuming that they are all honest and tell the truth, until the contrary appears by proof.” Exception is taken to the concluding part of this instruction, the defendant contending that in criminal cases there is no presumption as to the credibility of witnesses, and that the effect of this language was to place upon the defendant the burden of proving that the State’s witnesses were not honest and were not telling the truth.</p> <p>Cited as to presumption of credibility: Cornwall v. State, 91 Ga. 278 (5).</p>

<p>Indictment for burglary; from Floyd superior court — Judge Wright. April 3, 1930.</p>

<p>Complaint; from city court of Carrollton — Judge Beall. April 1, 1930.</p>

<p>Foreclosure of lien; from Wilkes superior court — Judge Walker. April 12, 1920.</p>

<p>Action on foreign judgment for alimony; from city court of Savannah — Judge Freeman. March 31, 1920.</p> <p>The petition describes the plaintiff as “Margie E: Wagner, formerly Margie Ethel Housley,” and alleges, that J ames W. Housley, the defendant, is now a resident of Chatham county, Georgia; that on September 15, 1917, in the district court of Canadian county, State of Oklahoma, the petitioner obtained a judgment against him, a copy of which is attached to the petition, and that he has failed and refused to pay her the amounts due under it for specified months beginning March, 1918, to wit, $50 per month, and is indebted to her in the sum of $1,000, for which she prays judgment. The petition was filed October 20, 1919. In the judgment referred to it is adjudged and decreed that Margie Ethel Housley be granted an absolute divorce from James W. Housley, that she have the custody and control of their minor child, and that she have judgment for alimony in the sum of $50 on the first day of every month thereafter, and that the divorce shall not take effect until the expiration of six months from the date of the judgment.</p> <p>The defendant demurred on the grounds that the petition fails to set out a cause of action and is insufficient in law, and that it fails to show when and how the plaintiff became Margie Ethel Wagner. In the brief of counsel for Housley it is contended that the general demurrer should have been sustained because it does not appear that the judgment is entitled to enforcement in this State under the “full faith and credit clause” of the constitution of the United States (art. 4, sec. 1), since it is not shown to be final; that this provision of the constitution' does not apply to a judgment or decree that may be modified. It is further contended that the change of the plaintiff’s name indicates that she has remarried and is attempting to collect alimony from her former husband while living with and probably supported by a second husband, and that she should allege when she remarried. Opposing counsel contend in their brief that the demurrer is not sufficient to raise the question as to the finality of the judgment.</p>

<p>The verdict was authorized by evidence, and for no reason assigned was it error to overrule the motion for a new trial.</p>

<p>Certiorari; from Fulton superior court — Judge Bell. April 5, 1920.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Indictment for manufacture of intoxicating liquor; from Burke superior court — Judge Henry C. Hammond. April 17, 1920.</p> <p>J. L. Rogers was convicted under an indictment which charged him with the making of intoxicating liquors. A 40-gallon copper still, complete,' was found in a hollow log near a creek or branch in a swamp at a distance estimated to be five or six hundred yards from the house in which the defendant' lived and which he spoke of as “ my house; ” and near the still were six or seven barrels of mash — about 400 gallons of mash. Ten or fifteen bottles of liquor were found buried in a sapling thicket within two or three hundred yards of the house. A bottle of it, which a witness called “corn liquor,” was inspected by the jury. It was testified that “ there were no houses around the still in sight,” and “ there was no other house 'around there at all; the closest house to Rogers was about half a mile.” A witness testified: “I don’t know whose field that was nearest Rogers’ house; he said it was his field. I don’t know whose field it was on the other side of the branch; he said it was a negro’s.” There was “ a negro house right across the branch there.” The witnesses who found the still and the mash and liquor testified that they did not go on the other side of the branch. Rogers lived with a woman and several children, referred to as “his family;” and it was testified: “Nobody lives at Rogers’ but this woman and children; I mean nobody to make liquor.” Officers searching for the still had found Rogers in the house, half drunk, with a flask of liquor in his pocket, and arrested him, and left the housej to continue their search, leaving him under the charge of an officer. A small boy, who had come from the house with another boy, was seen trying to hide a bottle of liquor in the sand, and the officers “took the little boy in the house, and asked the mother,” in the defendant’s presence, “would she send one of the larger boys to show where the still was.” The defendant said, “I am running this house, not you.” The woman “ sent the children with them to go and show the still, and she was standing near [Rogers.” They went down to the branch, and, after the still and the barrels of mash had been found, the children told the officers where the liquor was, and they began digging it up. It was testified that while the officers were in the house with the defendant “ his family said,” in his presence, that the still “was run all Friday night.” It was then Sunday morning, and when they found the still “it looked as if it had been run on Friday night before, because of the coals of fire and the mud around there.” One of the officers testified: “ A path went right out from the house to and through an old field and saplings to the branch. There is an old road that runs down there, and there is a kind of three-pronged road that goes down there; . . we went that road to the branch and didn’t cross the branch, and kept down the road to the still. We followed that road down toward the still and then went in a path; a buggy had been on the road a part of the way. It could be used for a road or path. I don’t think the road stopped at the branch. It went over to another field.” The road goes from one public road to another; there are paths on both sides of the branch. The substance of the defendant’s statement at the trial was that he denied to the officers that he had any liquor or still, and did not hear “any conversation with the woman at all.”</p>

<p>Indictment for larceny, etc.; from Walton superior court — Judge Cobb. April 22, 1920.</p> <p>On both counts of an indictment charging larceny and the receiving of stolen goods Lillious Wood was found guilty. Two bales of stolen cotton were hauled by his wagon and his mules to his premises at night and were left there. Other persons indicted for the theft pleaded guilty, and, as witnesses in his behalf, testified that he h¿d nothing to do with it. The State relied on evidence as to tracks of a horse and buggy, and other circumstances, to show that he was present when the cotton was taken from the owner’s premises. The owner testified: “ The next morning after the cotton had been stolen I set out to find it. . . I found buggy tracks and horse tracks where the cotton was stolen. It was a rubber-tired buggy, nearly new. The horse was shod in front and barefooted behind. I measured the horse’s foot where he was shod. The buggy was driven up in line where the cotton' was loaded. One of the horse’s tracks showed one of his hind feet was reel-footed; he made a one-sided track which showed very distinctly. I measured the horse’s track and- . . went to the pasture where this horse was and measured his foot, laid it on there like I did on the track, and it fit exactly; it was Lillious Wood’s horse. Lillious Wood had a rubber-tired buggy. We found it under the shed that morning in his yard. . . When I first saw those horse tracks it was across the railroad from my house, and it had turned out the edge of the road. It had rained the day before. It was very distinct. The buggy went out in a sandy place. I found the horse in Lillious Wood’s pasture, and took the measurement of the tracks at the railroad crossing and at Lillious Wood’s place. Lillious Wood’s place is about a mile from where I found the tracks. . . I swear it was the same track, as the tracks in the pasture corresponded with the other tracks. I don’t know [whether] anybody else around has a rubber-tired buggy or not.” Another witness testified that at sundown on the day before the finding of the tracks he saw Lillious Wood driving a horse to a rubber-tired buggy, and that the horse tracks were found near the house of Bailey, the owner of the cotton. “The horse was shod in front and barefooted behind. I saw the same tracks in Lillious Wood’s yard. We measured them, and then the horse’s foot. ... I tracked the horse and measured the track; the same horse made them.” The other defendants testified that they went to Wood’s house in his absence, about 8 o’clock at night, and got his wagon, hitched his two mules to it, drove them off, and got the two bales of cotton; that he was not with them and did not know anything about it; that they had made no arrangement to borrow the wagon; that when they returned to his house that night, bringing the cotton with them, it was 12 o’clock; that when they reached there he was coming through a field with a lantern and was driving his cow; that he “had just come from thesshow;” that they asked him to sell the cotton, but he refused to have anything to do with it, and told them to take it away, and said that if anybody came there and asked about it he was going to tell who got it; and-that they then carried it back of his house and threw it down; according to the testimony of one of them they threw it down in the defendant’s pasture; it was also testified that they threw it down in the woods. Witnesses for the State testified that they found the cotton covered by bushes near a branch in Wood’s pasture, about 200 yards back of his house, and saw wagon tracks which led from his house and over very rough ground, down a steep hill to where the cotton was found. A constable testified: “After finding the cotton we went back to Lillious’s house; he was not at home, but at his mother’s place, loading cotton. I told him to come down off the wagon. I arrested him. Ilis wife and mother came up and wanted to know what was the trouble, and Lillious said, ‘ About that cotton last night.’ He said he told those boys that if anybody came there he was going to tell them about the cotton,” and he gave the names of the boys that took the cotton.</p> <p>It was testified that on the night on which the cotton was stolen there was a carnival in the town of Social Circle, which was “ three or four miles from Lillious’s house and about the same 'distance from Mr. Bailey’s house,” and that Lillious Wood and his wife “came in” and were at the carnival between 11 and 12 o’clock that night. Another witness testified that he saw Lillious Wood “ about the middle of the evening,” driving a horse to a buggy, past the house of the witness, a mile from Lillious’s place. Eli Pritchard testified that he was a prisoner in the jail with Lillious Wood and the other defendants charged with the larceny of the cotton and “heard them make a conspiracy to put the crime on Bob Cobb and to clear Lillious Wood, and say that Bob Cobb told them to go and get the cotton and bring it to Lillious’s house,” and that if this could be done, Lillious would pay the rest out of jail. The statements of this witness were denied by Lillous Wood in his statement at the trial, and by the other defendants who testified. Wood denied that he had any connection with the crime, and his statement accorded substantially with that of the other defendants as to what occurred when the cotton was brought to his home. -He said that when he told them to take it away, they “went off down in the woods somewhere,” and he did not know, where they carried it.</p> <p>It was contended on the part of the accused that there was not sufficient evidence to authorize a conviction on either count of the indictment, and that the verdict finding him guilty on both counts was inconsistent and void; and on the latter proposition his counsel cited: 128 Mass. 60; 104 Ill. 565; 1 Bish. Crim. Proc. (2d ed.), chap. 30, sec. 7; 16 Corpus Juris, see. 2596, subhead 5, note 36 A. Cited contra: 21 Ga. App. 328 (2).</p>

Indictment for robbery; from Chatham superior court — Judge Meldrim. April 9, 1920. The first count of the indictment charged robbery by force and intimidation, and the second count charged robbery by sudden snatching.

Indictment for vagrancy; from Whitfield superior court — Judge Tarver. April 30, 1920. A witness testified: “I am chief of police of Dalton, in Whitfield county, Georgia. The defendant lives in Dalton and has lived here for several years. She is 25 years, or more, of age. She is a woman of lewd reputation. I have never known her to do any work.

<p>(Certiorari was granted by the Supreme Court.)</p> <p>Indictment for assault with intent to murder; from Forsyth superior court — Judge Blair. April 24, 1920.</p> <p>Error in not charging the jury that they had the right to recommend a misdemeanor punishment is alleged in the motion for a new trial. The verdict fixed the punishment at " not less than two years nor more than two years.” It is contended that the provisions of the Penal Code (1910), § 1062, as to the right of the jury to recommend that a felony (except as otherwise provided therein) be punished as a misdemeanor, were not altered or affected by the act of 1919 (Ga. L. 1919, p. 387), which provides that in eases of felony not punishable by life imprisonment the jury shall prescribe a minimum and maximum term of punishment.</p>

<p>Petition for certiorari; from Laurens superior court—-Judge Kent. March 25, 1920.</p> <p>On the charge of idling and loitering in violation of an ordinance of the City of Dublin, Neal was convicted in the recorder’s court of that city. The only witness at the trial testified: “I have seen [the defendant] in the City of Dublin, . . walking along the streets. . . If he had any occupation I did not know it; he did not have any that I knew of. He would be standing around when I saw him, whittling and talking. Would see him all times of the day and night. I asked him what he was doing, and he said he wasn’t doing anything. I have seen him in the last six months around on the streets here in Dublin. I have never seen him at work. I couldn’t say he didn’t work, but I have never seemhim at work.” The ordinance referred to provides that “ Any person who in this city is found loitering, rambling, wandering, prowling, or loafing about the streets, alleys, public thoroughfares, or premises in the daytime or nighttime, and who can not give a good account of himself or herself, shall be arrested and upon conviction shall be punished as prescribed in . . . this code.”</p>

<p>Indictment for assault with intent to murder; from Haralson superior court-—-Judge Irwin. April 22, 1920.</p> <p>The indictment charged Leatherwood with an assault 'with intent to murder McClung by shooting at him with a shotgun; and the accused was convicted of that offense. McClung testified, that while he was in his house, between 11 and 12 o’clock at night, he heard the noise of his calf bleating and running, and went out on the veranda of the house to see what caused it, and the defendant, who was standing about six or eight feet from the veranda, pointed a double-barrel shotgun directly at him and shot, and the load from the gun struck a post between them and went into the side of the house. The defendant, by his statement at the trial and by the testimony of several witnesses, attempted to establish an alibi. One of the grounds of his motion for a new trial is that the court charged the jury as follows: “ If you believe, beyond a reasonable doubt, that the defendant shot the prosecutor, McClung, with a weapon likely to produce death, you would be authorized to find him guilty.” It is alleged that this was error, because the court failed to charge the jury, in this connection or elsewhere, that in order to authorize a verdict of guilty of assault with intent to murder, the jury must believe, from the evidence, that the defendant shot with intent to kill McClung.</p>

Action on contracts; from Eulton superior court — Judge Pendleton. June 26, 1919. Application for certiorari was denied by the Supreme Court. Producers Company sued Empire Cotton Oil Company, alleging a breach of two written contracts by which the defendant agreed to sell to the Producers Company certain peanut product, which under the terms of one contract was to be delivered in March, 1918, and under the terms of the other contract was to be delivered in April, 1918.

<p>Accusation of carrying pistol; from city court of Macon — Judge G-uerry, April 20, 1920.</p> <p>The accusation charged the carrying of a pistol concealed, and the carrying of a pistol without having obtained a license; and there was a general verdict of guilty. The sole witness was a police officer, who testified, that he came up behind the defendant and collared him when the defendant and others were stooping down in a circle at a street corner, playing craps, and the defendant said “ Oh, Lordy,” and ran his hand in his left coat-pocket; the witness told him to take his hands out of his pockets, and he withdrew his hands, “and in his'hand was a .38-caliber pistol,” which he threw away from him; when he took his hand out of his pocket ,the witness saw the pistol.</p>

<p>Accusation of pointing a pistol; from city court of Macon — Judge Guerry. April 30, 1920.</p>

<p>1. Where refusal to continue a case is complained of in a ground of a motion for a new trial, the showing made in support of the motion for a continuance should be set out in the ground or in an exhibit attached to it.</p> <p>2. The rule as to simple larceny, that the thief may be indicted in any county into which he has carried the stolen goods (Penal Code of 1910, § 152), includes larceny of an automobile, although, under the act of 1916 (Ga. L. 1916, p. 154; Park’s Code Supp. 1917, Penal Div. § 187-1/2), larceny of an automobile is a felony.</p>

<p>Action for money had and received; from city court of Valdosta— Judge Cranford. July 9, 1919.</p>

<p>Indictment for murder — conviction for manslaughter; from Carroll superior court — Judge Terrell. November 25, 1919.</p> <p>The only exceptions relied on in the brief of counsel for the plaintiff in error relate to the failure to give to the jury certain instructions 'as to threats of the person killed. It is alleged that the court erred in not charging (without request) : “You -may consider any uncommunicated threats made by the deceased against the defendant, if i't is shown that any was made, for the purpose of showing who began the affray, and for the purpose of corroborating evidence of communicated threats, if any be shown, and to show the attitude of the deceased.” It is alleged that the court erred in refusing written requests to charge as follows: (1) “In determining whether the deceased, at the time of the killing, manifestly intended or endeavored, by violence or surprise, to commit a felony upon the person of the accused, you may take into consideration any uncommunicated threats made by the deceased against the accused, if 'any such threats have been shown.” (2) “The court charges you that whether the accused, at the time of the killing, acted under the fears of a reasonable man that a felony was about to be committed upon his person by the deceased, and that it was necessary for him to kill the deceased to prevent it, is a question to be determined by the jury; and in determining this question you m!ay take into consideration any threats that the deceased may have made against the life of the accused, if such threats had been communicated to the accused prior to the killing, and provided further that you should find that any such threats had been proven. And in determining this question you may further take into consideration the character of the deceased for violence, provided such character has been proven, and provided further that such character upon the part of the deceased was known to the accused prior to the killing.”</p> <p>The instructions given as to threats (in addition to the language of section 65 of the ’Penal Code as to provocation by threats) were as follows: “Now, you will observe that while I charged you, upon the law of voluntary manslaughter, that the law declared that provocation, with emphasis upon the word ‘provocation/, by words, threats, menaces, or contemptuous gestures, shall in no case be sufficient to free the person killing from the guilt and crime of murder — while that is true, if the killing was provoked only by threats, or words, or menaces, or contemptuous gestures — if the killing that is unlawful is provoked only by one of those things enumerated, the law says that is murder. However, gentlemen, do not get that confused with the law of justifiable homicide; for, while words, threats, menaces, or contemptuous gestures are not sufficient provocation to justify- a killing, or to reduce it from murder to manslaughter, yet the jury may consider threats, if the evidence shows any words, or menaces, or contemptuous gestures, if the evidence shows any, in passing upon the question as to whether or not the defendant acted under the fears of a reasonable man that his life was in danger, or' that a felony was about to be committed on him, and if he did act under such fears, in good faith, and not in a spirit of revenge, words, threats, menaces, or contemptuous gestures may justify the killing; and in passing upon the question of whether or not the defendant acted under the fears of a reasonable man— whether he acted in good faith, or in a spirit of revenge — whether he acted under the fears of a reasonable man that his life was in danger, or that a felony was about to be committed, the jury may consider threats, if the evidence shows any, may consider evidence of the character of the deceased, if the evidence shows it, for violence or turbulence, in passing upon the question of whether or not the accused acted in good faith and under the fears of a reasonable man that his life was in danger, or that a felony was about to be committed upon him; and if he did, the defendant would be guilty of no offense, and should be acquitted.”</p>

<p>Indictment for manufacture of liquor; from Jasper superior court — Judge Park. January 6, 1920.</p> <p>1. The indictment charged. William Belcher with “the offense of a felony, for” he “did unlawfully distill, manufacture and make spirituous liquors, malted-liquors, mixed liquors and beverages, a part of which is alcoholic.” The judge charged the jury: “If you believe that there was evidence that there was an apparatus for the manufacture of liquor prohibited by law, and . . a barrel of beer which fermented and was alcoholic and would produce intoxication was found at the place, 'and if you further find that the defendant was connected with the manufacture of liquor if any liquors were manufactured, you would be authorized to convict the defendant.” In the motion for a new trial it is alleged that this part of the charge was erroneous, because: (a) it was not authorized by the evidence; (6) it was error to instruct the jury that they would be authorized to convict if the defendant was “connected with the manufacture of liquor;” for he may have been connected with the manufacture as an accessory, and such connection would not have made him guilty of the offense of manufacturing liquor; (c) it failed to state the nature and kind of connection that he must have with the manufacture, in order to authorize a conviction of the offense charged in the indictment.</p> <p>From the evidence it appears that persons searching for a still saw the defendant carrying wood to a still in a gully in a pine thicket, near a branch, about a quarter or half mile from his house, and saw him throw the wood down at the still; that he then looked up, and, seeing that he was observed, ran off; that they found an old gasoline tank with water in it, heated up, with a wood fire at the side of the tank; and found a barrel and a doubling keg, a worm and connecting pipes, and a trough in which there was water. The witnesses saw another man there. One of the witnesses testified: “In that keg there was something they call beer or slops, and about six barrels of beer away from; that; it had not begun to run then. I don’t know whether the contents of the barrel had ever been distilled one time or not; it was in a state of fermentation, and I don’t know the practice of stilling well enough to know. It had a sour smell,— syrup, shorts, and meal mixed up. . . We did not find any whisky there at all. It had just started up, about ready to boil. . . Smoke was in the gully; . . the fire seemed to have been burning 15 or 20 minutes; they seemed to be about to make a run. ” Another witness testified: “We found a whole lot of beer and stuff in barrels, about seven or eight barrels of beer — fourteen barrels in all. I think seven were full. In these barrels was a mash made of water and wheat bran and shorts and syrup. . . We did not find any whisky there.” These two witnesses were the only ones who testified as to what was found at the still.</p> <p>2. As to alibi the charge of the court was as follows: “The defendant in this cáse also sets up what he calls a plea of alibi. And in this connection I read you section 1018 [Penal Code] : ‘ 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 tire range of evidence, in respect to time and place, must be such as reasonably to exclude the possibility of presence.’ I charge you that when the defendant sets up a plea of alibi the burden of proof is upon the defendant to establish to the satisfaction of the jury the truthfulness of such a plea. And if the range of the evidence in this case upon the plea of alibi is sufficient to reasonably exclude the defendant’s presence at the time and place of the commission of the offense, if any has been committed, the plea of alibi would be good. ” In several grounds of the motion for a new trial the instructions as to alibi were complained of as being incomplete, and it was contended that the court erred in not charging that the testimony introduced by the defendant as to alibi should be considered along with the other evidence in the ease, and if, after having considered all the evidence in the case, the jury were not morally and reasonably .satisfied of the defendant’s guilt, he would be entitled to an acquittal; and that if the jury had a reasonable doubt as to whether the defendant had in fact established an alibi, he should be given the benefit of the doubt and should be acquitted.</p>

<p>Complaint; from city court of Americus — Judge Harper. January 17, 1930.</p>

<p>Action for damages; from city court of Atlanta'—'Judge Reid. January 10, 1920.</p>

<p>Indictment for kidnapping; from Gordon superior court — Judge Tarver. April 17, 1920.</p>

<p>1. It was not error to allow the amendment, substituting for the landlord, as plaintiff, his tenant, suing for his use, for damages on account of destruction of crops on the rented land.</p> <p>2. The demurrer to the suit was properly overruled.</p> <p>3. Testimony as to the tenant’s indebtedness to the landlord for rent and supplies was admissible.</p> <p>4. The question as to the jurisdiction of the justice’s court over the subject-matter of the suit could not properly be raised by petition for certiorari.</p>

Indictment for misdemeanor; from city court of Alma — Judge L. D. Luke. March 10, 1920. The indictment charged that T. H. Bennett unlawfully cut and felled timber on uninclosed lands of Joseph Johnson.

<p>Action on contract; from city court of Thomasville—-Judge W. H. Hammond. April 2, 1920.</p>

<p>Indictment for possession of liquor; from Harris superior court — Judge Howard. May 3, 1920.</p>

<p>Action for damages; from Fulton superior court—Judge Pendleton. June 7, 1918.</p> <p>After the adoption of the act of Congress of March 21, 1918, “to provide for the operation of transportation systems under Federal control,” etc., and before the issuance of General Order No. 50 by the Director-General of Railroads, this action was brought against the Central of Georgia Railway Company and a street railway company for damages on account of personal injuries alleged to have been received on the 18th day of that month because of negligence in the operation of the defendant’s cars. By demurrer the Central of Georgia Railway Company contended that the action was not maintainable against it, because its railway was not under its control, but was under Federal control, at the time of the alleged injury. The judge of the superior court refused to allow the plaintiff to- amend the petition by substituting the name of the Director-General of Railroads as party defendant, and sustained the demurrer and dismissed the action as to the Central of Georgia Railway Company; and the plaintiff excepted.</p>

<p>Claim; from city court of Richmond county—Judge Black. September 10, 1918.</p>

<p>Action on insurance policy; from Chattooga superior court — Judge Wright. December 31, 1918.</p>

<p>Complaint; from city court of Richmond county — Judge Black. February 19, 1919.</p>

<p>Action for contribution; from Fulton superior court — Judge Ellis. January 10, 1919.</p> <p>The question referred to in the decision was: “Where, ‘in consideration of ’ a creditor giving to a principal debtor ‘ a line of credit’ in a stated amount, guarantors become responsible for the payment of ‘ this loan ’ by signing such an instrument as is quoted . . , is all liability on the part of such guarantors' discharged upon its being shown that the creditor has actually refused the request of the principal debtor for a portion of the credit thus named in the guarantors’ agreement?” The guaranty was signed by certain stockholders and directors of an industrial corporation, in order to enable the corporation to borrow money from a certain bank, and was as follows: “The undersigned stockholders and directors in the Bock Springs Coal Company of Turley, Tenn., in consideration of your bank giving to this company a line of credit of ten thousand dollars ($10,000) on their notes to be renewed from time to time, without notice to us, guarantee the payment of this loan to your bank; this obligation to hold good until we give you notice in writing to the contrary. ” The bank lent $5,000 to the corporation, in pursuance of the contract, and refused to make an additional loan of $3,000, for which the corporation applied. On default of the corporation in payment of the $5,000, one of the guarantors paid the amount, and sued his coguarantors for contribution. The defendants pleaded a discharge, on the ground that the bank had refused to lend to the corporation the additional amount of $3,000. The trial of the case resulted in a verdict against the defendants, their motion for a new trial was overruled, and they excepted. The Supreme Court, in answer to the certified question, held that “the language in the contract referring to the total amount of loans to be made to the corporation was merely a limit upon the guarantors’ liability, and the refusal of the bank to loan the additional amount of $3,000 did not operate to discharge the guarantors from liability for the amount which was actually loaned by the bank.”</p>

<p>Complaint; from city court of'Amerieus—Judge Harper.. May 9, 1919.</p>

<p>When two persons are engaged in a violation of the same criminal statute in the same manner and at the same time, but the act of each is separate and distinct from the act of the other, and one of them is injured as a proximate result of such criminal act on the part of the other, he may nevertheless recover therefor, if Ms own criminal conduct has not proximately contributed to his injury. Under the evidence in this case, whether or not the injured party was injured as a proximate result of his own negligence, or solely as a proximate result of the negligence of the other, was a question of fact for the jury. The verdict which was found for the defendant not being demanded as a matter of law under the evidence, the first grant of a new trial to the plaintiff will not be disturbed.</p>

<p>Application for year’s support—appeal; from Butts superior court—Judge Searcy. May 30, 1919.</p>

<p>Action, for damages; from Chatham superior court—Judge Meld-rim. June 20, 1919.</p> <p>The following extract from the charge of the court contains the language complained of: “Her contention is, that the car came to a full stop at the place where it usually stopped; that there was a number of people on the car, and that, without warning to her and while in the act of stepping off the car at that place, it was moved suddenly forward and she was thrown to the ground and hurt. If you should find that to be the truth of the case, you would be authorized to find a verdict in behalf of the plaintiff. Unless there is negligence on the part of the defendant, there cannot be any recovery on the part of the plaintiff,'—that is, the negligence as averred in this petition; and by the negligence as averred in this petition the plaintiff must stand or fall. . . . But this defendant is not liable for injury to the plaintiff if'it appears that the defendant used such diligence, or if it appears that the accident occurred by reason of the negligence on the part of the plaintiff herself. According to the contentions made by the respective parties, the issue is narrowed down to one question: Did that woman, at the time and place where the car usually stopped, get up after it had stopped, go upon the platform, and while there, in the act of getting off, the car was suddenly moved forward and she was thrown? Is that the truth ? Or is the truth of it this,—that before the car stopped she jumped from a moving ear and was thereby hurt? If you find that the contention of the plaintiff is true, you would be authorized to find a verdict for her.”</p>

<p>Action for damages; from city court of Savannah—Judge Freeman. July 18, 1919.</p>

<p>Revival of judgment; from city court of Floyd county—■ Judge Nunnally. October 9,1919.</p>

<p>Complaint; from city court of Savannah—Judge Freeman. October 1,1919.</p> <p>This is a suit by the Charity Hospital and Training School for Nurses, a corporation, against designated members of the unincorporated Federation of Negro Women’s Clubs of Savannah. In the first paragraph of the petition it is alleged that the said federation, “on certain conditions,” agreed to solicit, collect, and pay over to the plaintiff contributions to be expended in the erection of a new hospital building. In the second paragraph it is alleged that the “conditions” of this written agreement “authorized said federation to collect in its name said money or fund, expressly stipulating (and which said federation thoroughly understood and agreed to) that said money as collected should be deposited in bank to the credit of Charity Hospital Building Fund, and withdrawn by signature of president of board of trustees of Charity Hospital, jointly with that of treasurer of said federation, and that complete and full reports and statements, as canvass progressed, should from time to time be made to Charity Hospital by said federation.” It is alleged that a certain named fund was, under such authority, collected by the defendants, but, contrary to the terms of said agreement, was deposited by the defendants in certain banks, not subject to joint check of the officials of said federation and of plaintiff, but subject to be withdrawn solely by the treasurer and president of said federation; that said federation has failed and refused on demand to deposit the money as provided for under the' agreement, and to make the reports as therein provided for, but, on the contrary, gave notice by publication that no further subscriptions would be received, and in such notice requested that all donors call for and-receive the return of the amounts actually paid in. Wherefore, plaintiff asks a judgment against the defendants in the sum of $2,000, representing the amount alleged to have been collected and to be thus held by said federation.</p> <p>Defendants demurred generally and on the following special grounds: (1) The petition fails to allege with sufficient particularity in what capacity defendants are being sued; (2) it fails to show that the agreement referred to was in writing; (3) it fails to show under what ."conditions” defendants undertook to solicit, collect, and pay over the funds collected by them; (4) the agreement referred to is not 'attached to the petition; and (5) the purpose for which the fund was to be employed is not sufficiently set forth. The judge sustained the general demurrer and also special grounds 3 and 4, and overruled the other grounds.</p>

<p>Éule for contempt; from Hall superior court—Judge J. B. Jones. November 6, 1919.</p>

Eviction; from Ben Hill superior court—Judge Gower. October 20, 1919. On June 2, 1919, E. J. Hansen instituted proceedings to dispossess J. W. Leath as a tenant holding- over after the expiration of his term of tenancy, and the tenant filed a counter-affidavit.

<p>Action for damages; from city court of Sparta-—-Judge Johnson presiding. November 7,1919.</p>

<p>1. Estoppel of the plaintiff to assert title to the automobile which she was seeking to recover in trover, and which had been seized while in her husband’s possession, carrying intoxicating liquor, and sold under condemnation proceedings, was shown by uncontradicted evidence; and the court did not err in directing a verdict for the defendant. Stephens, J., dissents.</p> <p>2. The assignments of error as to the admission and exclusion of evidence do not show reversible error.</p>

<p>Motion to set aside judgment; from Fulton superior court — Judge Ellis. January 16, 1920.</p>

<p>Irrespective of whether or not the defendant was liable as a common carrier (which it is unnecessary to decide in this ease), there was evidence showing liability on the part of the defendant as a warehouseman, and, the verdict in favor of the plaintiff having been approved by the trial judge, this court will not control the judgment overruling a motion for a new trial based on the general grounds only.</p>

<p>Certiorari; from Eulton superior court-—Judge Bell. March 24, 1920.</p>

<p>Indictment for forgery; from Fulton superior court — Judge Humphries. December 13, 1919.</p> <p>Application for certiorori was denied by the Supreme Court.</p>

<p>Indictment for assault with intent to murder; from Harris superior court — Judge Howard. May 3, 1920. °</p> <p>The ground of the motion for a new trial referred to in paragraph 1 of the decision is: “Because the court erred in charging the jury as follows: 'All essentials of murder, save killing, must exist before one may be convicted of the offense of assault with intent to murder; and, in considering the instructions of the court on the subject of assault with intent to murder, you should view the transaction as if death had ensued at the time.’ The error in the foregoing charge consists in the failure to instruct the jury as to the difference between the rule where death results from an assault and where death does not result. . . The court should have instructed the jury substantially as follows: 'You would consider the testimony precisely as you would if death had resulted from the injury inflicted by the defendant, if any has been proven in this case. The only difference is that when death results, the intention to kill is presumed until the contrary appears; but when death does not result, the intention to kill is never presumed.’ . . The jury had no instructions from the court that would leave the question of the intention of the defendant to be determined by them, except the charge as follows: 'You should bear in mind that to constitute the offense of assault with intent to murder, there must have been an assault by one person upon another. An assault is defined in law as an attempt to commit a violent injury upon the person of another. Second, such assault must have been made with a weapon likely to produce death in the manner used; third, the assault must have been actuated by malice, either express or implied; and, fourth, made by the person making the assault with the specific intent to kill the person assaulted. The burden is on the State to show beyond a reasonable doubt that each- and all of these essential elements existed at the time the defendant committed the offense charged (if he did commit it), before he could be convicted of the offense of assault with intent to murder; and also that the offense, if it was committed, was not justified or justifiable under the law, and not in self-defense/”</p>

<p>Indictment for possession of liquor; from Harris superior court — Judge Howard. May 3, 1920.</p>

<p>Action on contract; from city court of Greensboro — Judge Brown. May 14, 1920.</p>

<p>Indictment for misdemeanor; from Harris superior court — Judge Howard. May 3, 1920.</p> <p>The indictment charged Huse Davidson with having possession of intoxicating liquor. On the trial the sheriff (the sole witness) testified that on October 9, 1919, he found a 5-gallon jug, with about half a teacupful of whisky in it, behind a log, about 20 or 25 feet from the defendant’s house and in. his yard. The alleged newly discovered evidence was contained in an affidavit of John Billingslea, in which he said: “On the 8th day of October, 1919, deponent went with one Bobbie Lovelace, colored, to the residence of Huse Davidson. The said Bobbie Lovelace had with him a 5-gallon jug which he placed behind a log near the well at Huse Davidson’s house. The jug was empty or practically empty and contained no stopper.”</p>

<p>1, 2. While an instruction to the jury, in regard to the offense of assault with intent to murder, that they should “view the transaction as if death had ensued,” is not harmful error if qualified by such instructions as immediately followed that instruction when it was first given in the charge of the court in this case, the repetition of such an instruction in a subsequent part of the charge, without proper qualification following it, was such an error as requires a new trial.</p> <p>3. More full instructions to the jury than those given as to assault and battery were not necessary, without request.</p>

<p>Indictment for burglary; from Whitfield superior court —Judge Tarver. May 15, 1920.</p>

<p>Conviction of seduction; from Bulloch, superior court—Judge Lovett. May 15, 1920.</p> <p>Paragraph 1 of the decision relates to the following extract from the charge of the court; “The test of a virtuous woman, under this law, is whether she had, at the time of the alleged seduction, had sexual intercourse with another man; that is to say, with a man other than the defendant on trial. If she had, she was not a virtuous female. If she had not, she was a virtuous female.” The court, after charging that before the jury could convict the accused, it must be shown that the person named in the indietment as having been seduced was a virtuous unmarried female, instructed them as follows: “A ‘virtuous unmarried female means a woman of physical purity, a virgin, a woman who has never had sexual intercourse, and does not mean a woman with an entirely pure mind and heart. Physical chastity, not moral or intellectual chastity, is the test by which to determine a woman’s virtue at the time of her seduction. However, if you find in this case any evidence of a debauched mind of the female alleged to have been seduced, — if there is any evidence in this case of a lewd and lascivious nature on her part, or like testimony, ■—■ you may consider such testimony in determining whether the female had parted with her virginity before the alleged seduction and was not at that time a virtuous female within the contemplation of the statute.” Then followed the language of the extract first quoted, and the court added: “Unmarried females who are virgins are virtuous, and those who by their own consent have ceased to be virgins are not virtuous. You should estimate the woman alleged to have been seduced, as a virtuous female, in this case, unless the evidence directly, or circumstances, show and satisfy you that, she had lost her virtue prior to the alleged seduction, by having illicit intercourse.”</p>

<p>Indictment for assault and battery; from Webster superior court ■—Judge Littlejohn. May 15, 1920.</p>

<p>Indictment for drawing check, without funds to pay it; from city court of Baxley— Judge Lawrence. May 27, 1920.</p>

<p>Accusation of public indecency; from city court of Macon —■ Judge Guerry. May 21, 1920.</p>

<p>An indictment drawn under section 245 of the Renal Code of 1910, which fails to set forth the name of any person, firm, or corporation that the defendant intended to defraud, is fatally defective, and a verdict and judgment of guilty upon a trial under the indictment are void and mere nullities, and a motion to arrest the judgment should be sustained notwithstanding that the indictment was not demurred to.</p>

<p>A conviction of gaming was authorized by the evidence.</p>

<p>Indictment for assault and battery; from Carroll superior court — Judge Terrell. May 31, 1920.</p>

<p>Indictment for larceny of hog; from Brooks superior court — Judge Thomas. May '6, 1920.</p>

<p>Conviction of shooting at another; from Walton superior court— Judge Cobb. May 12, 1920.</p>

<p>Indictment for robbery; from DeKalb superior court—Judge Hutcheson. June 9, 1920.</p>

<p>Conviction of manslaughter; from Jackson superior court — Judge Cobb. May 3, 1920.</p>

<p>Accusation of larceny; from city court of Floyd county — Judge Nunnally. June 2, 1920.</p> <p>Jack Barnes was convicted under an accusation of “the offense of a misdemeanor,” alleged to have been committed by unlawfully and fraudulently taking and carrying away $170 in money of B. S. Biggs with intent to steal it. Biggs testified that on a train of the Southern Bailway going south from Dalton the defendant and two other men were betting as to the time in which they could open a certain knife, and one of them asked if he (Biggs) had $10, and he said “Yes,” and, taking it from a roll of money, “let him have it.” What then occurred was stated by the witness as follows: “ I had $170 rolled up together. When I pulled out the $170 Barnes says, ‘I’ll put you twenty more down,’ and I says, ‘No, I don’t gamble, I don’t bet;’ and he says, ‘It ain’t you, it’s me. You will not lose a penny;’ and I was foolish like and laid down the $170. They started to count ten and he could not open the knife, and Barnes grabbed up the whole pile and started back in the sleeper with it. . . I said, ‘Stop with my money.’ The stout man said to me, ‘You can’t go in that sleeper without you have a ticket.’ . . I went on to look for the defendant, but did not see anything of him, and then I went to the conductor and told him about my money. . . Barnes got off and went around the depot at Shannon, the other two got off on the other side of the train and went through the woods; they ran off. The conductor took the defendant and brought him to Borne. . . I do not bet or gamble, did not lose the money to him in some sort of a bet. I just laid it down and he said I would not lose a penny. . . That was at a station north of here, called Shannon. The money was in tens and twenties, mostly twenties. . . The train had blowed for Shannon when I went for the conductor. . . It was something like a minute from the time I lost my money until I found the conductor. . . I didn’t let the defendant have that $170 to bet on that trick.” The conductor testified that when Riggs came to him and made the complaint the train was at Pinson in Floyd county, about a mile and a half from Shannon; that Barnes, when arrested, said in the presence of Riggs, that he had gambled with Riggs and won the money fairly, and would use it to pay his fine. It was testified that when Barnes said this, Riggs told Barnes that he (Riggs) was not gambling, and said “You know you are crooks, and one of you says that ifT would back you, you would win me some money, and I backed you and you took all I had.” The defendant, in his statement at the trial, said that Riggs bet with him and lost the money on the bet. The defendant introduced in evidence a petition of Riggs for an injunction to prevent the chief of police of Rome from turning over to Barnes the money taken from Barnes at the time of the arrest. In the petition it was stated, that Barnes “asked petitioner for the money to make said bet; petitioner let said Jack Barnes have $170 in ten and twenty dollar bills, which said Barnes bet on said trick, and when the money was placed on a seat in said car said Jack Barnes with his said two confederates grabbed said money and ran to the sleeper on said train, the said Barnes carrying the said money in his hands,” etc.</p> <p>The special grounds of the motion for new trial were as follows:</p> <p>“ Because, as movant contended on the trial and now contends, the venue of the alleged offense was not sufficiently proved.”</p> <p>The verdict is contrary to law and without evidence to .support it, in that the charge is simple larceny, and the evidence, if showing a larceny at all, shows one from the person, and not simple larceny; for, to constitute a larceny, the evidence must show the money still in the control and possession, and so near the person as to be entirely within his control and not out of his possession; if the money had passed actually out of his possession, so that it might become the subject of any larceny other than from the person, then, under the evidence, such passing out of his possession was with his knowledge and consent and not privately done.</p> <p>The court erred in the following charge to the jury: “There has been some evidence submitted to you, documentary evidence, for the purpose of impeaching the witness Riggs;” the error being in the use of the words “documentary evidence” alone, while the strongest evidence offered to impeach the witness - was oral testimony.</p> <p>The court erred in charging: “ It would be immaterial whether the crime, if there was one, occurred in this county or some other county,.if the property was brought into this county by the defendant, and he intended to hold possession of it, this would be the proper venue of the crime.” This was error because not a correct statement of law, and further in direct conflict with the former charge of the court that it was incumbent upon the State to show that the crime occurred in this county.</p> <p>The court erred in charging: “ If you find there was any plan, scheme, device, or fraud practiced upon Biggs by the defendant for the purpose of getting possession of this money for the purpose of stealing the same, and the defendant did take and carry it away under those circumstances, he would be guilty.” This was error because it made larceny conditioned upon the carrying away of the money, when, as a matter of law, larceny is first a wrongful and fraudulent taking- and then carrying away; the wrong and the fraud and the intent to steal applying to the taking, the covering into possession of the defendant the stolen property, and the carrying away being merely evidentiary of the purpose and intent with which the thing was taken.</p> <p>The court erred in charging: “If there was such a game on, and had not been completed, and he took the money away before it was determined who was the winner, with intent to steal the same, it would still be larceny.” This was error because not the law, because it eliminated, from those things necessary for the State to prove, a wrongful and fraudulent taking.</p>

<p>Indictment for sale of liquor; from Bulloch superior court — Judge Lovett. May 5, 1920.</p>

<p>Indictment for manufacture of liquor; from Bibb superior court —Judge Thomas presiding. May 29, 1920.</p> <p>1. On the grounds that no offense against the law of the State was charged, that the act of 1917,- under which the defendant was indicted, was in conflict with and was superseded by the “war prohibition act” of October 28, 1919, and the “national prohibition act passed in January, 1920,” and that because of this subsequent legislation the court was without jurisdiction of the case, the defendant demurred to the indictment, which charged her with “the offense of manufacturing whisky, for that the said Lila Thomas, on the 7th day of November, in the year 1919, in the county aforesaid, did . . unlawfully . . distill, manufacture, and make alcoholic liquors, spirituous liquors, whisky, and'rum, contrary to the laws o-f said State,” etc.</p> <p>2. The court’s instructions as to the effect of evidence of good character, which are set out in the decision, are complained of on the grounds that they restrict the consideration of such evidence to cases in which guilt,is not plainly established, and allow the jury to consider it only in connection with other evidence. It is contended that evidence of good character is in itself a defense and may alone work an acquittal.</p> <p>3i According to the evidence, Lila Thomas, the defendant, was at the house of Mary Ann Crawford, which was the next house to the one in which the defendant lived, when detectives came to the house of Mary Ann Crawford and there found whisky and rum, and a lard can connected with a worm, etc. One of the detectives testified that, in the afternoon he went to the house with Mr. Hardison, another detective, and found that the doors were fastened and the window-shades were down; that repeated knocking on the door brought no response, and the witness moved one of the shades and saw two boys — Eobert Pennington and Hilton Connor — tipping across the floor, but did not then see,the defendant; that they were finally admitted into the house and found the defendant in the middle room, a cook-room, and in a closet of that room, they found a large lard can and a worm; the can was hot, and “it had a trough; the worm connected with the pipe; it was stuck in that hole, and some putty or dough, or something, around the worm;” “there was meal, and looked like syrup and stuff had soured or fermented in the can; . . it smelled like beer; it was hot and there was steam coming from it; it was smoking; ft smelled like stump' rum;” about two quarts and a pint of stump rum were found there; one of the boys was under the bed when the witness got in the house; the defendant said there was no whisky there; whisky was found in a wardrobe. Mary Ann Crawford testified that the defendant had been in the habit of coming to the house to get meal to cook for her, that Hilton Connor, who was in the house when the detectives came, boarded there and that she knew nothing of the making of liquor there. The defendant, in her statement at the trial, said that she went to the house to get some meal to cook for Mary Crawford’s supper, and that when she went in to pull the can out and get the meal from it, some one knocked at the door, and the man who charged her with making whisky came into the house.</p>

<p>Indictment for having distilling apparatus on premises; from Lincoln superior court — Judge "Walker. May 11, 1920.</p>

<p>Indictment for manufacture of intoxicating liquor; from Pike superior court—Judge Searcy. May 29, 1920.</p> <p>In the ground of the motion for a new trial as to the action of the court in sending for the jury and addressing inquiries to them, and giving the instructions set out, it is contended that “said proceeding” was and must have been construed by the jury as in the nature of a reprimand to them for failing to make a verdict, and as in the nature of a command to return a verdict, and was coercive in its effect and destructive of the defendant’s right to an impartial adjudication of his case by a jury free from outside influence or coercion.</p>

<p>Indictment for embezzlement; from Wilkes superior court — Judge Walker. June 1, 1920.</p> <p>Young was convicted under an indictment which charged him with embezzlement of money of the County of Wilkes, to the amount of $642.67, coming into his hands as clerk of the board of commissioners of roads and revenues of the county. From the evidence it appears that when about to resign his place as clerk of the board he requested the chairman of the board to sign a check payable 'to his (Young’s) order, and blank as to amount, on which were written the words, “Final settlement with the county, ” and which was drawn on a bank that had funds of the coupty on deposit in the name of the chairman of the board; that -the chairman signed the check as requested, with the understanding that the amount due Young was to be written into it by Young, who said that it would take him “some little time to figure it out;” that Young wrote into it the amount of $642.67, indorsed the check, collected the money on it, and used the money for himself; and that when the check was drawn and when it was paid the county owed him nothing.</p> <p>Paragraph 1 of the decision relates to testimony of S. H. Everett, who testified that he was “an auditor, a practising accountant,” and had audited the books of the County of Wilkes and of the bank referred to above, and had examined and checked up the accounts of Young as clerk of the board of county commissioners. He testified that from an examination of these books, “this check for $642.76 never did go to the credit of the county.” The witness then added the following testimony, which was admitted over the objection of the defendant: “Let me modify that just a little. We did not have to take all of the books. Some of the records were necessary to make a reconcilement. Mr. Young kept all the records; they are in his handwriting. With reference to the clerk’s salary, I found that he was paid every month. I found from an examination that in place of what we call ‘petty cash’ he apparently advanced some money himself, some little cash items. For .these small cash items I find that he received a check regularly every month. If he failed at any time to reimburse himself for these little items, I failed to find it. I am making my statement from the summary itself. He was short with the county $3,548.63 exclusive of this check here.” The court admitted also over objection the following testimony of this witness: “Mr. Young kept those books. I have found from them what amount he collected, and I found the amount that went to the credit of the county. He did not account for afl the money that came into his hands. He failed to account for $4,191.30, including the check for $642.67. Those are the correct figures as shown by his books. ” The grounds of objection to these parts of the testimony, as’ set out in the 1st and 2d special grounds of the motion for a new trial, were: that the records required by law to be kept in the office of the clerk of the commissioners of roads and revenues were public documents, and their contents could be proved only by certified copies; that such of the records referred to by the witness as were not required by law to be kept in that office were private writings, and were themselves the highest and best evidence of their contents; that the testimony offered was a mere conclusion of the witness, and was not as to a matter of science or skill about which the witness could testify as an expert; and that no foundation had been laid for his testimony by offering in evidence the books themselves.</p>

<p>Conviction of involuntary manslaughter in the commission of an unlawful act; from Clarke superior court'—1 Judge -Cobb. May 22, 1919.</p>

Conviction of involuntary manslaughter; from Clarke superior court — Judge Cobb. May 22, 1919. Involuntary manslaughter in the commission of an unlawful act, by the unintentional killing of a pregnant woman by the unlawful use of instruments with the intent to produce a miscarriage and abortion, is alleged in the second count of the indictment. The language of this count is set out in the decision.

Conviction of involuntary manslaughter; from Clarke superior court — Judge Cobb. June 21, 1919. Application for certiorari was denied by the Supreme Court.

<p>1. Under the ruling of the Supreme Court in Summerlin v. State, 150 Ga. 173 (103 S. E. 41), the court did not err in overruling the demurrer to the presentment.</p> <p>2. The court did not err in denying the defendant’s motion to require the State to elect upon which count of the presentment it would place the defendant on trial, or in allowing the State to try the defendant under all three of the counts.</p> <p>3. Where a paper which is capable of influencing the jury on the side of the prevailing party goes to the jury by accident and is read by them, the verdict will be set aside.</p> <p>4. None of the other special grounds of the motion for a new trial shows reversible error.</p>

<p>1. In the trial of a statutory claim to property levied on under a mortgage fi. fa., proof of either possession or title in the mortgagor at the date of the mortgage, together with proof of possession in him, or in the legal representative of his estate, at the date of the levy, raises a presumption that the property is subject to the fi. fa. Civil Code (1910), § 5170; Morris v. Winkles, 88 Ga. 717 (1) (15 S. E. 747). This presumption, however, is prima facie only, and may be rebutted by clear and unequivocal proof establishing a superior right in the claimant. Green v. Wade Chambers Grocery Co. 19 Ga. App. 454 791 S. E. 789); Atlantic Coast Line R. Co. v. Drake, 21 Ga. App. 85 (4) (94 S. E. 65).</p> <p>2. Generally a chattel mortgage executed by a husband must on his death yield to the right of his family to a year’s support out of his estate. Civil Code (1910), § 4041; Cole v. Elfe, 23 Ga. 235; Puffer v. Caldwell, 111 Ga. 798 (2) (36 S. E. 927.) The only exception to this rule is in the case of a purchase-money mortgage expressly reciting that it is executed and delivered for the purpose of securing the debt for purchase-money. Civil Code (1910), § 4049; Corbitt v. Newbern, 132 Ga. 457 (64 S. E. 479).</p> <p>3. The requirement of section 4043 of the Civil Code (1910), that, upon the return of appraisers setting apart a year’s support to the family of a decedent, “the ordinary shall . . publish notice as required in the appointment of permanent administrators, ” is sufficiently complied with where the proper advertisement is inserted in the official organ of the county four times, in as many separate, consecutive weeks, and the first insertion so made is in an issue of the paper published twenty-eight or more days before such return of the appraisers is made the final judgment of the court. Civil Code (1910), § 3970; Bentley v. Shingler, 111 Ga. 780 (2) (36 S. E. 935).</p> <p>4. Where the final order of the ordinary upon such a return recites that notice has been published “ as required by law, ” and the entire record with respect to the year’s support is on its face full and complete, the recital must be accepted as true, in the absence of aliunde evidence conclusively showing that it is in fact untrue. Park’s Ann. Code, § 5736, and annotations under the catchwords “Courts and judicial officers” (p. 3797). See also Winn v. Lunsford, 130 Ga. 436 (1) (61 S. E. 9).</p> <p>5. Where it appears that five weeks elapsed between the date of the citation and the final order of the ordinary on the return of appraisers setting apart a year’s support to the family of a decedent, proof that notice of the proceeding was not published during the fifth week is insufficient to show that such notice was not published “once a week for four weeks;” nor can it overcome the presumption in favor of such final order of the ordinary reciting that the notice “ had been published as required by law. ” Winn v. Lunsford, supra; Carter v. Copeland, 147 Ga. 417 (94 S. E. 225).</p> <p>6. The court did not err in excluding proof of the character indicated in the preceding paragraph.</p> <p>7. The evidence as a whole, with all reasonable deductions and inferences therefrom, demanded a verdict finding the property not subject to the fi. fa. It follows that the court did not err in directing a verdict accordingly. Civil Code (1910), § 5926.</p>

<p>The allegations as to the conduct of the hotel employees in regard to the plaintiff, a female guest whose room while occupied by her at night was entered by a police officer with a detective of the hotel, stated a cause of action against the hotel company, under the former decision of this court in this case (24 Ga. App. 533) ; and the subsequent amendment of the plaintiff’s petition did not render the petition subject to the demurrer filed thereafter.</p> <p>Whether .the amendment was of sufficient materiality to open the petition to demurrer at the trial term is a question not raised, and therefore not decided.</p>

<p>Action on contract; from Colquitt superior court — Judge Thomas. April 5, 1920.</p>

<p>Certiorari; from Bibb superior court — Judge Mathews. April 3, 1920.</p> <p>Herring & Sparks, a firm of attorneys at law, sued A. B. Moore in the municipal court of Macon, alleging that he was indebted to them in the sum of $240 for professional services rendered by them; that he procured them to-examine the title to certain lots of land, for which services he agreed to pay a reasonable fee of 1% of its market value, and that its value was $24,000; that the plaintiffs performed their part of the contract and prepared abstracts of title to the land and delivered their certificate of title to C. B. Lewis, the agent authorized by the defendant to receive the same; that the defendant, through his agent C. B. Lewis, the latter being fully empowered to act in this capacity, procured the plaintiffs to render these professional services, on a promise to pay them the reasonable fee of lf0 of $24,000; that, since these services were rendered, the defendant expressly consented and agreed to pay this fee in consideration of the fact that L. B. Hamilton should pay him $1,700, this payment being made on condition that the defendant should relieve Hamilton from purchasing and paying for the said land, and on condition that the defendant should pay all costs, expenses, and attorney’s fees that might have accrued in the said transaction; and the defendant failed and refused to pay the said indebtedness. These allegations were denied in the defendant’s answer. At the trial there was evidence from which the following facts appeared: In a contract between Moore and Hamilton for the sale of.certain land by Moore to Hamilton it was agreed that Moore should furnish a clear title to the land, 'and the sale should be subject to examination and approval of the title. Hamilton, according to his testimony, told Moore to "turn over the deed” to C. B. Lewis, a friend of Hamilton, who would "pass on it” as to whether title was good, and Moore was to satisfy Lewis. According to Moore’s testimony Hamilton told him to turn the papers over to Lewis and tell Lewis to have them examined, and Moore turned over the papers to Lewis and told him to have them examined. Nothing was said then or before that time as to who was to be employed to examine the title -or as to payment for the examination. Lewis testified that Moore instructed him to have the titles examined for Hamilton by some lawyer that he (Lewis) might select, and he (Lewis) turned the papers over to Mr. Sparks, of the firm of Herring & Sparks, "to have the abstracts made of the property,” and "must have told him that they were to be examined for Hamilton, ” as this was the only instruction given by Moore. Sparks testified that when Lewis turned the deeds over to him and asked him to examine the titles, Lewis stated that the papers were left there by Moore, and that L. B. Hamilton was the purchaser of the property; and he (Sparks) told Lewis “all right,” and made the examination and abstracts and furnished abstracts and opinions to Hamilton and a bill for services, which Hamilton refused to pay. He assumed, from the fact that Hamilton was the purchaser, that Hamilton was to pay for these services; and when the investigation of the titles was about completed he inquired of Moore “regarding some discrepancies,” and Moore referred to the fact that Hamilton was to pay for the abstracting of the title. There was conflict in the testimony as to whether in a subsequent settlement between Moore and Hamilton it was agreed that Moore should pay the attorney’s fees. It was testified that the property was valued at $32,000, and that the services rendered by the plaintiffs were reasonably worth $240.</p> <p>The trial of the case resulted in a verdict in favor of the plaintiffs, for $240; a motion for a new trial was overruled by the judge of the municipal court, and the defendant sued out certiorari, alleging that the judge erred in not granting a new trial, that the allegations of the plaintiffs’ petition were not supported by evidence, that the evidence did not conform to the pleadings, that the verdict and judgment were contrary to law and to the evidence, and that the court erred -in giving a charge to the jury “ directing that they would be authorized in law if they believed the evidence as the contention of the plaintiff was the truth of the case,” “said portion of the charge excepted to herein being paragraph 2 of said charge in accordance with exhibit B of this petition. ” In the charge as- set out in exhibit B is the following: “2. It is your sole duty to determine whether Mr. Moore made contract or agreed to pay this fee, or made contract with Mr. Hamilton, through Mr. Lewis, to furnish good and sufficient title to this property. If he did, he is liable; and if he did not, he is not liable.” This is the only numbered_part of the charge except the part preceded by “No. 3,” which immediately follows this extract. The judgment of the judge of the superior court was as follows: “In this ease I think there was evidence to authorize the jury to find that when Moore gave his deeds to C. B. Lewis and instructed him to procure abstract of title for Hamilton to the lands described in the deeds, he was giving these instructions for himself and not for Hamilton, and that therefore C. B. Lewis was his agent, and that Lewis’s act in engaging Herring & Sparks was the act of Moore. In the absence of material and hurtful errors of law on the trial in the municipal court, I think the verdict authorized, though not demanded; and I hereby overrule the certiorari.”</p>

<p>Indictment for misdemeanor; from "Whitfield superior court — Judge Tarver. April 17, 1920.</p>

<p>Action for damages; from Fulton superior court — Judge Pendleton. May 10, 1920.</p> <p>The action was for damages on account of alleged injury from drinking a beverage sold as harmless and refreshing, which the plaintiff alleged contained a poisonous or deleterious substance. The petition as amended alleges: that on February 25, 1919, he went into a certain drug-store of the defendant and bought at the soda fountain a drink of coca-cola and celery, made in a glass goblet by an employee of the defendant; and, noticing a peculiar taste in the drink, he drank about three fourths of it, paid for it, and went immediately to his home, and was there seized with violent pains in his arms and shoulders .and around his heart; that he took an emetic, to expel the drink from his stomach, and, feeling no better after its expulsion, he went to a near-by drugstore, and was there examined by doctors, who found that he had been poisoned by some unknown chemical poison that had been taken internally and had the effect of stopping his circulatory system, depressing his heart action and turning him black in the face and hands. These doctors worked on him for a considerable time, to keep him from dying, giving him stimulants and medicines to stimulate his heart action. During all this time he suffered great pain and agony in mind and body, being fearful that he was going to die from the effects of the poison. He was confined to his bed, under the care of a physician, for five days, and the sole cause of the poisoning and sickness was the drinking of the coca-cola and celery. He had no knowledge of and no opportunity of knowing the exact contents of the glass of coca-cola and celery, but relied on the defendant serving him the harmless article of drink that he had ordered. Up to the time of this sickness he had excellent health and vigor, but since this sickness his heart action has been weak and his blood circulation poor, and he suffers from fatigue and exhaustion after the slightest exercise, and labors under fear that the poisoning may yet hasten his death. Expense for physician’s services and medicines, and loss of earnings, in stated sums, are alleged; and it is alleged that the poisoning was due solely to negligence of the defendant, (a) in serving in the coca-cola and celery an ingredient, unknown to the plaintiff, that would poison him or cause him to be sick; (&) in failing to use care to prevent poisonous ingredients or chemicals from being served in the glass of coca-cola and celery; and (c) in serving to him an unwholesome and impure drink, knowing that he was relying on the defendant to furnish him 'a pure and wholesome drink. It is alleged that the poison was a chemical — the name of which is unknown to the plaintiff — which when taken into the human system had the effect of depressing the heart action and reducing the circulation in the body and causing congestion and a condition resembling paralysis. It is further alleged that the defendant, in the operation of the soda-water stand, impliedly invited the patronage of the public and represented that it was selling and dispensing what were commonly known as soft drinks and soda-water drinks which were harmless, and refreshing, which drinks were compounded, manufactured, and sold by the defendant at the said soda-water stand. The drink that the plaintiff sought to purchase on that occasion, — to wit, celery and coca-cola mixed with carbonated water,—-was one of the drinks commonly compounded and manufactured by the defendant at the said soda-water stand which were sold and dispensed to customers as refreshing and harmless, and it is harmless when manufactured, compounded, and dispensed without any poisonous or foreign matter in it, and the plaintiff had the right to rely upon the defendant to serve him with such harmless drink on that occasion. The defendant was under a legal duty to see to it that no poisonous matter was mixed with the said beverage, and the plaintiff relied upon the defendant to perform this duty; and in manufacturing and selling the said drink with the said poisonous and deleterious substance in it the defendant violated the said legal duty and violated the laws of the State of Georgia, and it was a result of this violation of duty and of law that the plaintiff suffered damage as alleged.</p>

<p>Action for damages; from city court of Carrollton — Judge Beall. November 3, 1919.</p> <p>Application for certiorari was denied by tbe Supreme Court.</p>

<p>Action for damages; from city court of Way cross — Judge Crawley. March 15, 1919.</p> <p>Ellis Crosby, a minor, by next friend, brought suit against D. L. Keen, to recover damages for the loss of his eye, caused by the explosion of 'a soda-water bottle while he was working in the manufacturing establishment of the defendant. At the trial there was evidence that the soda-water manufactured by the defendant was put up in bottles highly charged with carbonic-acid gas and packed in boxes; that the plaintiff, a child between ten and eleven years of age, was occupied in the work of inspecting bottles when the explosion of one of them caused the loss of his eye; that while engaged in this work, several minutes before the injury, he burst several of the bottles, and was warned by one of the employees to be careful; that he threw the bottles into the box and was not careful with them, and that the cause of the breaking of the bottle that injured him’ was that he did not place it in the box, but threw it in lightly. There was a conflict in the evidence as to whether he was a trespasser in the establishment or was permitted by the proprietor to work there. The jury found for the plaintiff. The defendant’s motion for a new trial was overruled, and he excepted.</p>

<p>Forfeiture of recognizance; from Fannin superior court—'Judge Morris. October 22, 1919.</p>

Action for damages; from Murray superior court—Judge Tarver. November 15, 1919.

Action for damages; from Jefferson superior court — Judge. Hardeman. November 10, 1919.' This was a suit against a railroad company by an employee, to recover damages for alleged personal injuries caused by the dropping of an air-pump, which the plaintiff and three-other employees had been directed to carry from one place- to- another in the machine shop of the defendant by means of two pipes used as hand-bars.

<p>Action for damages; from Whitfield superior court-—-Judge Tarver. November 29, 1919.</p> <p>The suit was originally against the Southern Railway Company, and by amendment Walker D. Hines, director-general of railroads, was substituted as defendant. The verdict was against the defendant, and the exceptions are to the overruling of his motion for a new trial.</p> <p>1. The petition alleges: that the defendant has injured and damaged the plaintiff in the sum of $3,000 by reason of the wrongs and injuries hereinafter set out; that on September 30, 1918, the plaintiff bought at Cleveland, Tennessee, a ticket to Dalton, Georgia, intending to take passage on the train passing Cleveland about 5 o’clock a.m. that day, and went to the train and in the exercise of all ordinary care and diligence got upon the steps of the passenger-coach, and as he did so an employee of the defendant, either the conductor or the flagman, in uniform, shut the door of the car and prevented him from getting on the train; that with one hand he knocked on the door of the said coach several times, but the said servants of the defendant negligently failed and refused to open the door, and carried him about 20 feet and until the engine pulling the train gave a sudden jerk and threw him violently upon the ground and injured him in a manner stated; that the defendant owed him as a passenger extraordinary care and diligence, but was negligent and careless in preventing him from getting upon the train as aforesaid, and in closing the door and preventing him from getting up the steps, and in shutting the door in his face, and in causing the engine and train to launch and jerk suddenly and to throw him. to the ground; “in all of which said acts and failures defendant was negligent, and wanting not only in extraordinary care as required by law, but was wanting even in ordinary care and diligence to petitioner.” The first special ground of the motion for a new trial is to the effect that the trial judge, in his charge to the jury, erred in treating the suit as an action for mere negligence, when the suit “was predicated upon a wilful and intentional violation of the plaintiff’s rights as a passenger.”</p> <p>2. Special grounds 2 and 3 relate to the following instructions to the jury: (2) “If the plaintiff shall have made it appear that he was injured in the operation of the railway train of the defendant, then the presumption arises that the defendant was negligent in each of the particulars specified in the declaration, and unless the defendant shows that it exercised extraordinary care and diligence in the particulars wherein it is alleged to have been negligent, the plaintiff 'would be entitled to recover.” (3) “If you find, however, that the plaintiff was standing on the lower step of the passenger coach on the occasion, and that an employe of the defendant closed the door of the passenger coach in his face, as alleged in the petition, if you find, as I have stated, that this occurred, and that it was a negligent act, and that as the proximate result of this act the plaintiff sustained personal injuries for which he sues, he would be entitled to recover.”</p> <p>These excerpts from the charge are complained of respectively for the reasons: (a) that they invaded the province of the jury and suggested that the acts complained of, if the jury found that they occurred, were negligence for which the defendant might be found liable; and (6) that they purport to be a complete statement of the circumstances under which the plaintiff would be entitled to recover, but omit any - reference to the effect of want of care on the part of the plaintiff; and it is contended that the instructions should have been qualified in this respect. The first excerpt is complained of for the additional reason that “the jury should not have been instructed that they might find a verdict upon the presumption alone, but should have been required to consider it along with the other evidence in the case and make a verdict on the whole.”</p> <p>3, 4. It is alleged that the court erred in failing to charge the jury in substance that if the plaintiff were negligent, however slightly, in bringing about his injury, or in failing to avoid the same, Und such negligence contributed appreciably to the injury, he could not recover; the injury having occurred in Tennessee, where the common law presumptively is of force. For this reason it is alleged that the court erred in giving what “ purported to be a complete summary of the defenses open to the defendant,” in the following charge: “ If he was injured "as the proximate result of his own negligence, he would not be entitled to recover. If he failed to exercise ordinary care and diligence for his own safety on the occasion in question, and his failure to so exercise ordinary care 'and diligence for his own safety contributed to this injury, he can not recover.”</p>

<p>Complaint; from Liberty superior court — Judge Sheppard. October 25, 1919.</p>

<p>Complaint; from city court of Tifton — Judge Price. November 14, 1919.</p> <p>J. E. Peeples sued for certain commissions -alleged to be due him as a real-estate broker, upon the sale of certain lands of the defendant. From the evidence at the trial it appeared that early in the year 1919 the defendant listed with the plaintiff certain lands for sale 'at $45 per acre, and agreed to pay him a commission of 5% on the sale. In June or July, 1919, the plaintiff formed a partnership with J. M. Peeples, under the firm name of J. E. Peeples & Son, and subsequently and before performance of the alleged contract J. M. Peeples entered into negotiations with the defendant which resulted in an agreement by the defendant to accept $40 per acre for his lands, and to pay a commission of 5%. The .property was afterwards sold upon this basis, the defendant refused to pay the commission agreed upon, and J. E. Peeples brought this suit. The trial judge granted a nonsuit, upon the ground that “the evidence showed that the cause of action, if any, was in the partnership composed of J. E. Peeples and J. M. Peeples, and not in the plaintiff.”</p>

<p>Affidavit of illegality; from city court of Millen — Judge Dekle. October 22, 1919.</p>

<p>Writ of lunacy — appeal; from Bibb superior court — Judge Mathews. July 22, 1919.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Trover; from city court of Savannah. — Judge Freeman. October 28, 1919.</p>

<p>Trover; from city court of Carrollton — Judge Beall. November 3, 1919.</p>

Action on contract; from Fulton superior court — Judge Pendleton. November 4, 1919. On August 8, 1916, Moore gave a written order to the Sea-brook Coal Company for 20 cars of coal, at $1.35 per ton, one car to be shipped immediately, and the others “as ordered.” The company shipped three cars instead of one. Moore complained of this, and also as to the quality of the coal, but sent a check to cover the price of the three cars.

Action for damages; from Upson superior court— Judge Searcy. June 9, 1919. Application for certiorari was denied by the Supreme Court. Mrs. Atkinson sued the City of Thomaston for damages on account of the death of her husband, which was alleged to have been caused by contact with an electric wire. The trial of the case resulted in a verdict against the city for $5,000, and,’ the defendant’s motion for a new trial being overruled, it excepted.

<p>(Certiorari was granted by the Supreme Court.)</p> <p>Trover; from Gity court of Savannah — Judge Freeman. October 30, 1919.</p> <p>The plaintiff corporation sought to recover in trover certain personal property to which it claimed title under a bill of sale purporting to have been executed to it by the Universal Light & Power Company, to secure a debt. This instrument was attested by two witnesses, one of whom was a notary public; it was dated March 24, 1919, 'and was recorded April 2, 1919. The notary public was secretary of the plaintiff corporation, and received a salary from it as such, but was not a stockholder of the corporation, and was not otherwise pecuniarily interested in it. There was no corporate seal on the instrument. When it was offered in evidence the defendants objected to it on the grounds: (1) that the notarial witness was secretary of the plaintiff corporation, the vendee, when the instrument was executed, and therefore was disqualified to attest it, and the record of it was not notice to third persons; and. (2) that it did not bear the seal of the corporation by which it purported to have been executed. The court sustained the objections, and, there being no other evidence of title, granted a nonsuit; and the plaintiff excepted to the rulings stated. Counsel for the plaintiff requested the Court of Appeals to review and reverse the ruling in the case of Barrow v. E. Tris Napier Co. v. Butler, 16 Ga. App. 309, and contended that it should not be applied where the notary is not a stockholder of the corporation, and on this point cited: 2 Ga. App. 721; 1 Corpus Juris, 808, sec. 117; 125 Cal. 320 (57 Pac. 1070); 36 Fla. 575 (18 So. 850); 48 Neb. 514 (67 N. W. 485, 37 L. R. A. 434); 196 Ill. 554 (63 N. E. 1049, 89 Am. St. Rep. 330); 113 Iowa, 216 (84 N. W. 1041); 70 Neb. 815 (98 N. W. 34); 32 Wash. 572 (73 Pac. 680); 1 Am. Dig. (Cen. Ed.), sec. 109, col. 871; 1 Am. Dig. (Decen. Ed.), 195-7, sec. 20 (3); 16 Am. & Eng. Ann. Cas. 141, notes; 23 L. R. A. (N. S.) 1075, 1078; 99 Ga. 451 (3, 4); 122 Ga. 439-40 (6); 145 Ga. 580 (2), 584-5; 6 Ga. App. 569-70; 149 Ga. 479 (distinguished); 143 Ga. 16 (3).</p>

<p>Action for damages; from Polk superior court—-Judge Irwin. November 15, 1919.</p>

<p>Action for damages; from city court of Yaldosta — Judge Cranford. November 14, 1919.</p>

Action for breach of warranty; from Whitfield superior court — Judge Tarver. December 13, 1919.

<p>Action for damages; from city court of Hall county — Judge. Wheeler. November 29, 1919.</p>

Action for damages; from Fulton superior court — Judge Pendleton. January 31, 1919.

<p>Action on contract; from city court of Savannah — Judge Freeman. June 7, 1919.</p>

<p>Action for damages; from Fulton superior court — Judge Bell. June 10, 1919.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Motion to set aside judgment; from city court of Blakely — Judge Turnipseed. May 19, 1919.</p>

<p>Action for damages; from Biehmond superior court — Judge Henry C. Hammond. July 29, 1919.</p>

<p>Foreclosure of mortgage; from city court of Floyd county — Judge Nunnally. July 25, 1919.</p>

<p>Action for damages; from Tift superior court—'Judge Bye. August 9, 1919.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Motion to set aside judgment; from city court of Cairo — Judge Rigsby. September 2, 1919. •</p>

<p>Trover; from Colquitt superior court—; Judge Thomas. August 18, 1919.</p>

<p>Motion to arrest judgment; from Walker superior court— Judge Wright. October 2, 1919.</p>

<p>Money rule; from Tift superior court — Judge Eve. October 4, 1919.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Complaint; from Walker superior court — Judge Wrigbt. September 3, 1919.</p>

<p>Appeal; from Hart superior court — Judge Hodges. September 24, 1919.</p>

<p>Complaint; from city court of WayerosS'—-Judge Crawley. March 20, 1919.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Foreclosure of lien;'from Hall superior court — Judge J. B. Jones. November 1, 1919.</p>

<p>Certiorari; from Fulton superior court—‘Judge Pendleton. December 16, 1919.</p>

<p>Certiorari; from Richmond superior court ■—■ Judge Henry 0 Hammond. December 13, 1919.</p>

<p>Action for slander; from city court of Hinesville-—-Judge W. C. Hodges. January 5, 1920. .</p>

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

<p>Certiorari; from Fulton superior court — Judge Pendelton. May 23, 1919.</p>

<p>Garnishment; from Fulton superior court — Judge Reid. May 5, 1919.</p>

<p>Complaint; from city court of Blakely — Judge Sheffield. August 25, 1919.</p>

<p>Action for damages; from Muscogee superior court — Judge Howard. February 3, 1920.</p>

<p>Complaint; from city court of Polk county — Judge Tison. September 25, 1919.</p> <p>William Waddell was sued jointly with F. L. Westbrook and G. C. Golden, executor of W. F. Golden, deceased, by the J. R. Watkins Medical Company, for $1141.93. The plaintiff dismissed the suit as to Westbrook, who had not been served, and also dismissed it as to Golden; and it proceeded against Wad-dell, and a verdict was rendered against him for the full amount sued for. The suit as against Waddell was based on a written contract dated December 1, 1914, signed by Waddell and Golden respectively as “1st surety” and “2nd surety,” and designating them as “the undersigned sureties,” in which, in consideration of one dollar paid by the J. R. Watkins Medical Company and the execution of a contemporaneous agreement between that company and F. L. Westbrook for the sale of goods to him by it, and an extension of the time of his existing indebtedness to it, amounting to $1378.51, the signers “ jointly and severally promise and guarantee” the payment of this indebtedness and payment for the goods as provided in the agreement referred to. The writing is identical in its material parts with the writing set out in the case of Watkins Medical Co. v. Marbach, 20 Ga. App. 692-3. Waddell admitted that about December 1, 1914, he signed a bond to the plaintiff like the one sued on, but only for $337; and he pleaded non est factum as to the instrument sued on.</p> <p>Paragraph 5 of the foregoing decision relates to grounds of the motion for a new trial which in substance are as follows:</p> <p>(4) Waddell having testified that he “signed a bond for Mr. Westbrook about December, 1914, for $337,” was asked, “What was your impression, about your liability on a contract like that at the-time you wrote that letter?” referring to a letter “dated January 22, to Col. Boykin at Carrollton,” which had been admitted in evidence. The witness answered that he “thought you made 'a bond and it meant that you was liable for all the goods that he got afterwards.” “On motion of counsel for the plaintiff the court ruled out what the witness thought about his liability. Movant proposed to prove by the witness . . his impression or understanding of his liability under the contract he signed for $337, for the purpose of explaining why he wrote the letters to the company and to Col. Boykin, attorney for the plaintiff, and that his letters referred to his liability on the $337 contract and not on the. one sued on. Movant insists that the court erred in not allowing the witness to so testify.”</p> <p>(5) Two grounds are numbered 5. In one of these it is complained that testimony of Carroll, whose name appears as a witness on the contract sued on, that he did not see Golden sign the contract sued on, was excluded by the court as being immaterial and irrelevant. It is contended that this testimony “was admissible as a circumstance that the paper sued on was attested in the absence of the parties purporting to sign as sureties.” In the other ground numbered 5 it is complained that the testimony of G. C. Golden, that the name of W. F. Golden on the paper sued on was not the handwriting of W. F. Golden, was excluded by the court as being irrelevant and immaterial. It is contended that this testimony was admissible “as a circumstance with the other testimony in the case to illustrate whether” the defendant Waddell signed the contract sued on with W. F. Golden as one of the alleged sureties.</p> <p>(6) It is complained that the court erred in excluding as irrelevant certain testimony of the defendant Waddell to the effect that in 1914 Westbrook would get drunk and lose his goods out of his wagon, and that he (Waddell) would not have signed “an obligation to pay a debt that he owed for as much as $1300 at that time.” It is contended that this testimony was admissible to show the improbability of the execution of the instrument sued on.</p>

<p>Certiorari; from Fulton superior court—Judge Pendleton. October 14, 1919.</p>

<p>This being a suit to recover commissions alleged to be due under a broker’s contract, and the petition failing to show that the plaintiff produced a purchaser who was ready, able, and willing to buy the-property placed in his hands for sale, on the terms prescribed by the owner, the court did not err in dismissing the petition, on general demurrer.</p>

<p>Action on insurance policy; from Fulton superior court — Judge Pendleton. December 17, 1918.</p> <p>1, The action was upon a policy insuring against loss by burglary of goods “from within the premises” defined in the policy, which contains provisions limiting the meaning of the term “premises and which in an attached schedule states “the location of the building and that “the assured occupies Rooms 206 and 207.55 The first question certified by the Court of Appeals to the Supreme Court was in substance whether 'the policy covered goods which at the time of the alleged loss were not in the rooms designated in the policy, but were in a basement room occupied by the insured as a storeroom on a different floor of the building. The question was answered in the negative. The material provisions of the policy are set out in 150 Ga. 402.</p> <p>2. Whether an estoppel to deny liability was shown by facts alleged in the second count of the plaintiff’s petition was a question also certified, and also answer.ed in the negative. The facts are set out in 150 Ga., supra.</p>

<p>Indictment for misdemeanor; from Appling superior court — Judge Highsmith. June 6, 1919.</p>

<p>1. A ground of the motion for a new trial in which it is alleged that the court erred in overruling a motion to exclude certain testimony set out, and which states, as the ground of the motion to exclude the testimony, that “ movants contended that it affirmatively appeared from the evidence ” that the witness “ was the agent of . . the plaintiff,” etc., but which does not set out any evidence from which that fact appeared, is incomplete and will not be considered.</p> <p>2. A new trial is not required by any of the exceptions relating to the charge of the court.</p> <p>3. A verdict supported by evidence and approved by the trial judge will not be disturbed by this court because of conflicting evidence.</p>

<p>Complaint; from Fulton superior court—-Judge Ellis. January 15, 1920.</p> <p>Application for certiorari was denied by the Supreme Court. .</p>

<p>Action for damages; from Brooks superior court — Judge Thomas. March 8, 1920.</p> <p>The action was for injury to a cotton-mill employee’s hand, which it was alleged was caught by the teeth of a revolving cylinder of a carding machine when he was attempting to remove waste cotton. In the demurrer it was contended that under the allegations of the petition the negligence of a fellow servant was the proximate cause of the injury, and that the injury was a result of one of the ordinary risks of employment assumed by the plaintiff. From the petition it appears that he was employed for the purpose of grinding carding machines and was directed by the foreman to clean off with his hands the waste cotton hanging or accumulated in front of the cylinder mentioned and of a door opening to that cylinder while the cylinder was revolving. The cylinder was enclosed in a metal case with a door in front-which opened from the top by means of latches; and, just above the door, waste cotton was separated from the cotton carried around by the cylinder, and was “ supposed' to be wound ” upon a scavenger roll-stick located just above and a little in front of this door, in order to keep the waste cotton from falling and hanging down in front of the door, but there was no such stick on the machine, and the waste cotton from the cylinder was allowed to hang, fall, and accumulate in front of the door and completely hide the door from view, thus rendering it impossible for a person in front of the machine to ascertain whether the door was up or down. The plaintiff knew that the machine was not provided with such a stick, but he had no experience „in the operation of this particular kind of machinery and had been only about seven or ten days at work in taking down waste cotton with his hands and grinding and cleaning the cylinder in the manner described, and did not know that such an appliance was necessary to the safe operation of the machine in the manner in which he was required to work upon it, and did not know the danger attendant upon the work. Suction created by the rapid revolving of the cylinder tended to draw into the enclosure and into the teeth of the cylinder one’s hand when in close proximity to it in removing the waste cotton. The door to the enclosure had been opened by a fellow servant, but the plaintiff did not know this, the opening being hidden from view by waste cotton, when he reached forward to remove the waste and the teeth of the cylinder caught his hand. It is alleged that the defendant was negligent in failing to provide the machine with a scavenger roll-stick, and in the direction to him. to remove the waste cotton with his hand while the cylinder was running, and in failing to warn him of the dangers attendant upon the operation of the machine. It is alleged that although the door mentioned was left open by a fellow servant, the plaintiff would not have been injured if the defendant had not been negligent as stated above; and that the defects and dangers mentioned were latent and not discoverable by the plaintiff by the exercise of ordinary care on his part, and his opportunities for knowing of them were not equal to those of the ■ defendant, which knew of them or could have known of them by the exercise of such care.</p>

<p>(Certiorari was granted by the Supreme Court.)</p> <p>Action for damages; from city court of Macon—Judge Guerry. April 9, 1920.</p> <p>The action was for injuries to a switchman from a wooden substance which struck his head when he was standing on the ladder attached to the side of a freight-car, holding the ladder with one hand and signaling with the other to the engineer who was switching the car. In one count of his petition he alleged: that the substance that struck him fell or was blown by the wind from the top of the car, that it was not a part of the car and should not have been there, and he did not know it was there and had no reason to anticipate it’s presence there, and that the agents and employees of the defendant (the director-general of railroads) were negligent in placing it on the top of the car, in allowing it to remain there while operating the car, and in doing this with knowledge that by the movement of the train or the force of the wind it might be thrown or blown from the car and fall upon some employee using the ladder or standing at the side of the track. In another count it was alleged: that the substance that struck the plaintiff was a part of a decayed and frail building of the defendant, and was blown by the wind and carried over the top of the freight-car; that the building was used for the purpose of housing engines not in service, and was more than 30 years old, was weakly constructed, and had become weaker in the course of time, that the roofing was of inferior quality and the roof was blown off by the wind, the weatherboarding was rotten, and a wind blowing 30 or 35 miles an hour — a velocity not unusual or unprecedented — was sufficient to take off parts of the roof and scantlings and carry them over the car and hurl them against the plaintiff; and the defendant knew or in the exercise of ordinary care should have known of the rotten and frail condition of the building; that at the time of the injury the wind was blowing with a velocity of about 31 and not more than 34 miles an hour and was not sufficiently-powerful to blow down or unroof a properly constructed building; and that the defendant was negligent in maintaining such a building, and in allowing it to remain upon the defendant’s yards, adjacent to the railroad-tracks, after it had become so weak that it could be shaken to pieces by a wind blowing with the velocity stated above. The court sustained a general demurrer to each count and dismissed the petition.</p>

<p>Attachment; from city court of Albany — Judge Clayton Jones. May 11, 1920.</p>

<p>Complaint; from city court of Savannah — Judge Kourke. January 27, 1920.</p> <p>Yon Zonneveld Brothers & Philippo, of Sassenheim, Holland, sued Shuptrine Company, of Savannah, Georgia, alleging that the defendant was indebted to them in the sum of $287.26, by reason of the facts that on November 10, 1916, the defendant .•signed an order to them for the shipment of certain goods specified therein, which order was attached to the petition, and that the plaintiffs complied with the order and shipped the articles named therein in accordance with its terms, bnt that the defendant failed and refused to live up to the contract, and the said articles were disposed of by the transportation company — the Ocean Steamship Company—for charges, “with the result set out in attached statement” showing an indebtedness in the sum sued for. These allegations were denied in the defendant’s answer.</p> <p>On the grounds that “the plaintiff had made no case against the defendant, and had not proved the account was correct, or that the goods were received,” the defendant, at the conclusion of the plaintiffs’ evidence at the trial, asked for a nonsuit, which was-granted; and the plaintiffs excepted. The evidence consisted of the order for the goods, the testimony of an employee of the plaintiffs, and a letter of the defendant’s attorney to the plaintiff’s attorney. The account attached to the petition was for goods described in two items, dated respectively August 15 and September 5, 1917, one for “Boman bulbs, $168.74,” and the other for “Holland bulbs, $283.91;” there were certain credits on the account, and the balance shown by it was $287.26. The order was dated November 10, 1916. It was on a printed form in which the plaintiffs were designated as “Bulb growers,” and was for “bulbs and plants,” designated as “Boman hyacinths,” “Narcissus,” etc., in specified quantities; and under the heading “ Price ” several items were followed by amounts ranging from $4 to $25, other items by no amount, and others by amounts without the dollar mark, thus: “2000 Boman Hyacinths 12/15, open 30,” “3000 Darwin Tulips, same color as last year, 10.” The employee who signed the order testified: “ I do not know whether the price on there is so much per thousand or not. . . As to the price, I know nothing of that. There is a price on there, but I only gave the order as per instructions left with me; the price there looks to be so much per thousand, but I don’t know whether it is that or not.” One of the provisions of the order is that “All goods travel 'at purchaser’s risk and expense from our [the plaintiffs’] stores.” The letter mentioned above is referred to in the bill of exceptions as follows: “By agreement the testimony of W. F. Lightbourne, an employee of the Ocean Steamship Company at Savannah, was shown by the attached letter marked Exhibit A.” The letter says: “I will admit that Mr. W. E. Lightbourne will testify that the sale of the bulbs involved in the above-stated case [‘Van Zonneveld v. Sbuptrine’] netted $25.00.”</p>

<p>Complaint—appeal; from Cobb superior court — Judge Wright presiding. December 18, 1919.</p> <p>Payment of the account sued on to an agent or traveling salesman of the plaintiff — the King Hardware Company —was the defense set up in this case. Refusal to admit in evidence a receipt offered by the defendants and the direction of a verdict for the plaintiff are complained of in the motion for a new trial, the overruling of which is assigned as error.</p> <p>At the trial the plaintiff’s “credit man and head bookkeeper” testified, that the account sued on was correct, due, and unpaid; that he did not know whether it had been paid to any traveling salesman of the plaintiff, but no salesman had “reported having collected it,” and the money had never reached the plaintiff’s office; that the plaintiff had several traveling salesmen, and the traveling salesman for the territory in which was Marietta, Georgia, where the defendants had their place of business, was Mr. Woodward; and Mr. Howell Kitchen was also authorized to take orders in Marietta. J. R: Williams, of the firm of J. E. Williams & Brother, the defendants, testified that he was in charge of the business of the firm at the time of the purchase of the goods included in the account sued on, and bought them from a traveling salesman of the plaintiff, and that he paid the account to a man who represented himself to be a salesman of the plaintiff, but whom he could not see, as he was blind. As to the circumstances under which the payment was made he testified: “Some gentleman called at my store, saying he was the representative of the King Hardware Company and wanted to sell me a bill of goods. I told him. I did not wish to buy any that day. I could detect that his voice was different from the salesman who,had called on me in times past for the King Hardware Company, and remarked to the gentleman that he was not the same man who had been calling on me. He said, ‘No,’ and told me what his name was, but I do not recollect it. . . He reminded me that I owed the King Hardware Company a bill and that the house had asked him to collect the same. I got out my invoices and statements, and he had with him some papers, and he and I checked over the account, and his statements and mine were alike. Being blind and unable to see, I asked him to call out the items on his papers, and they were as follows ” (the .witness here stated the items ■ of the account sued on). “ I recognized the items as he called them out from the papers, as being the same goods that I had previously bought from the King Hardware Company, and the whole thing came to $59.18” (the amount of the account sued on). “I paid him that amount of money. He gave me this receipt, which I have kept ever since ” (referring to the receipt mentioned above, which was for $59.18, and was signed, “King Hardware Company, Atlanta, Ga.”). The witness further testified that the salesman to whom he paid the money was not Woodward or Howell Kitchen. Woodward testified that he did not receive the money, and that although he did not know of any salesman of the plaintiff who came into his territory besides himself and 'Kitchen, it was possible for some other -of the plaintiff’s salesmen to have done so, and that the plaintiff sent office men ont to towns near Atlanta to collect accounts and take orders for goods. The witness first mentioned was recalled and testified that he did not recognize the receipt as being in the handwriting of any salesman of the plaintiff; also: "When we in the office in Atlanta give an account against a customer to a salesman to collect, we do not itemize the account, but give him a plain statement of the same, simply showing the date and amount of the invoice or invoices, and the statement which we give to salesmen for collection is not itemized; the individual items covered in the account are never shown; . . they are always itemized when we place them out in the hands of attorneys or our collecting agency for collection.” "Our salesmen do collect accounts for us frequently, and they are authorized to collect for the company. . . It is true that we frequently send men from the office — some of our office force— out to near-by points around Atlanta, both to collect accounts and solicit orders for goods. I think we have sent such parties to Marietta.”</p>

<p>1. In its statement of the plaintiff’s contentions the charge of the court was not subject to the exception that it was unauthorized by the pleadings and evidence.</p> <p>2. The instructions complained of as casting upon the defendant the burden of disproving negligence if the plaintiff showed simply that he was “ injured while' a passenger on the line of the defendant ” do not require a new trial on the ground that they authorized a recovery for injury not caused in the manner alleged in- the plaintiff’s petition. There was no evidence that he was injured in any other manner than that alleged.</p> <p>3. Extraordinary diligence to protect a passenger from injury is due as well to a passenger on a mixed freight and passenger train as to one on a passenger-train, although a jolt which might manifest a lack of such diligence in the operation of a passenger-train might properly be regarded as reasonably incident to the operation of the other kind of train. In either case it is a question for a jury whether the jolt amounted to a lack of extraordinary care. The instructions to the jury on this point in the present case were not subject toi the exceptions taken.</p> <p>4. Although the plaintiff’s petition does not state with desirable clearness that the damages sued for are intended to include compensation for lost time and expenses of sickness, it is manifest that this was the intent of the pleader, and, in the absence of a demurrer, the allegations of thg petition were sufficient to authorize the introduction of evidence as to these elements of damages and the charge of the court thereon.</p> <p>5. When considered with its context, the instruction complained of as expressing an opinion as to what was established by the evidence is not subject to that exception.</p> <p>6. There being no evidence tending to show that the witness was an expert, further than that he was a flagman of a train on a particular occasion, the exclusion of a certain part of his testimony, as to whether the train, after rolling only five or six feet, could stop so suddenly as to throw a man off his feet, was not cause for a new trial, especially since other testimony by him to the same effect was admitted.</p> <p>7. The amount of the verdict is not so large as to indicate bias or prejudice on tlia part of the jury.</p>

<p>January Trover; from city court of Sylvester — Judge Monk. 20, 1920.</p>

<p>A cause of action against a physician for injury to his patient from negligence and lack of skill of an attendant or servant of the physician is shown by the allegations of the petition in this case, from which it appears that in the absence of the physician the patient went, as directed by him, to the attendant to have a hypodermic injection administered in accordance with the physician’s course of treatment of the patient, and that in its administration by the attendant the needle used for the purpose was broken off in the patient’s arm, where it remained until swelling of the arm and fever resulted and the needle was discovered, and in consequence the patient suffered permanent injuries; it being alleged that the attendant was incompetent, negligent, and unskilful in administering the hypodermic injection, and that the physician knew or ought to have known of this incompetency, and did not use proper care in selecting his assistant or agent.</p>

<p>Whether the plaintiff, a '13-years-old boy, was exercising due care for his own protection, according to his age and capacity, in crossing a public road, when struck and injured by the defendant’s automobile, was, under the facts alleged in the petition, a question to be determined by a jury.</p> <p>A cause of action was set out in the petition, and the court erred in dismissing the action on general demurrer.</p>

<p>Complaint; from city court of Macon — Judge Guerry. January 30, 1920.</p>

<p>Action on contract; from Fulton superior court — Judge Ellis. January 27, 1920.</p> <p>The action was on a contract made in June, for the sale of cottonseed meal to the plaintiff, to be delivered in December. The plaintiff alleged that certain quantities of the cottonseed meal delivered contained less ammonia than the percentage of ammonia guaranteed in the contract. As to the measure of damages the trial judge charged the jury that the damages, if the plaintiff was entitled to recover, would be “the difference between the market value of the meal bargained for in June, 1916, to be delivered in December, 1916, at the time and place of delivery fixed by the contract, and the value of the meal actually delivered at the time and place named in the contract.” The verdict was for the plaintiff, and in the defendant’s motion for a new trial, the overruling of which was excepted to, it was alleged that the court erred in giving the instruction quoted above, because “the facts in this case showed that there was a delivery and acceptance of the meal by the buyer, and therefore the measure of damages would be the difference between the price paid and the value of the goods as they actually were at the time and place of delivery, and not the measure of damages as charged by the court.”' Refusal of a request to charge the jury in accordance with this contention was also complained of. These were the only grounds of the motion for a new trial other than the general grounds as to the verdict.</p>

<p>1. In a suit to recover money upon an alleged contract to convey land or pay a certain sum of money, the petition was too indefinite as to the terms of the alleged contract, the land to be conveyed, and when the conveyance was to be made, and, was insufficient as to the consideration, where the allegations touching these matters were: that in 1899 the plaintiff’s mother-in-law, whose executors were the defendants, “ promised and contracted ” to give him “ one acre ” of “ a large tract of land in Eulton county, State of Georgia, fronting on Peachtree road, near the City of Atlanta,” owned by her, “ or its equivalent in money,—'$5,000” (the sum sued for), “as a special inducement to petitioner to come and live with her; ” that, acting upon this promise, he and his wife moved to Atlanta in 1899, and resided with her until her death in 1917, all the while sharing his portion of the expense of the upkeep of the household; that she repeatedly offered, especially during the last two years of her life, to make a deed to him to one acre of the said land, but through procrastination of both parties the deed was never executed; that he performed all his obligations under the contract, and that she did not •fulfil her part of the agreement.</p> <p>2. Under the statute of limitations, even if there was a valid contract, the action was barred.</p>

<p>Money rule; from Morgan superior court — Judge Park. April 3, 1920.</p> <p>Hunter Scarsbrook and Louis Cohen contested for priority in the distribution of a fund in the hands of the sheriff arising from the sale of cotton of Cohen’s tenant Dave Thomas under a distress warrant in favor of Cohen, Scarsbrook contending that his lien as a laborer in the making of the crop of cotton was entitled to priority. The verdict was in favor of Cohen. Searsbrook’s motion for a new trial was overruled, and he excepted. The special grounds of the motion were as follows:</p> <p>1. The court erred in failing to charge the jury as follows: “I charge you that if there had been sufficient cotton delivered to Louis Cohen by Hunter Scarsbrook to pay off the rent on the lands worked by him, and to pay the amount of supplies furnished by said Cohen to said Hunter Scarsbrook, and that sufficient cotton had been delivered off the place to have paid the entire rent, that as to Hunter Scarsbrook it would be a satisfaction of the rent claim of Cohen as to the crops worked on halves by Scarsbrook.”</p> <p>2. The court erred in failing to charge as follows: “As to Hunter Scarsbrook, Cohen was obliged to make the application of the cotton delivered to him so as to pay off this superior lien for rent, and could not apply it to an inferior lien to the hurt of a cropper who worked on halves on said land, and appropriate the crop of Hunter Scarsbrook to the payment of the debt of Dave Thomas, if you believe that Louis Cohen knew, or had notice to put him on inquiry, as to how the said Hunter Scarsbrook was working with Dave Thomas.”</p> <p>3. The court erred in not charging as follows: “ If Louis Cohen knew that Hunter Scarsbrook was working for Dave Thomas on halves, and the crop produced by said Scarsbrook was delivered to said Cohen in a sufficient amount to pay off the debts of said Scarsbrook to Cohen, and a sufficient amount to pay the rent on the land worked by Scarsbrook, then and in that event I charge you that the half of the crop of Scarsbrook raised on the premises of Cohen would be discharged from any lien in favor of Cohen. And it would be your duty to find in favor of the lien of Hunter Scarsbrook.”</p> <p>4. The court erred in charging the jury as follows: “ I charge you in so far as the superiority of the landlord’s lien for rent upon the crops raised upon the rented premises, the landlord’s lien for rent would be superior to the laborer’s lien. And in the event you find this lien claimed by Mr. Cohen for the rent of said lands for the year 1918 has not been paid off, under the principles of law as will be given you in charge by the court, your verdict should be in favor of awarding the amount of money now in controversy in the hands of the sheriff to Mrs. Cohen, if you reach the conclusion that the amount of money in his hands is not sufficient to pay the balance of the rent due;” without further charging the jury in connection therewith, “that if Louis Cohen had received sufficient rent from the land of his worked on halves by Hunter Scarsbrook with Dave Thomas, and to pay Hunter Scarsbrook’s account, and there was sufficient crop to discharge the rent on the whole place, other than the half of the crop claimed by Hunter Scarsbrook, then and in that event they should find in favor of Hunter Scars-brook the amount of money in the hands of the sheriff, the proceeds of the crops to Scarsbrook, or the half of the said crop worked by Scarsbrook.”</p>

<p>Tlie word “ all,” before' the words “ ordinary and reasonable care and diligence,” in an instruction to the jury that the plaintiff, who sought to recover from the town for injuries caused in falling into an excavation in a street, could not recover if the defendant’s employees exercised “ all ordinary care and diligence,” did not render the charge • subject to exception on the ground that it placed too great a burden upon the defendant.</p> <p>The exception to an excerpt from the charge of the court because of alleged error as to the position of the hole into which the plaintiff fell is without merit.</p> <p>The verdict was supported by evidence.</p>

<p>A surety oil a bond for the appearance of the defendant in a ' criminal ease can not, in answer to a scire facias in a proceeding to forfeit the bond, set up as a defense that when the case was called for trial and postponed until the next day the accused was present in court and the sheriff was in possession of warrants for his arrest but failed to arrest him and allowed him to leave the court; nor that the surety subsequently caused the arrest of the accused in another State and that the solicitor-general failed and refused to apply for requisition papers to bring him back for trial.</p>

<p>Complaint; from Webster superior court — Judge Littlejohn. May 22, 1920.</p>

<p>Action for damages; from Cobb superior court — Judge Blair. June 16, 1920.</p> <p>On general demurrer the trial judge dismissed the action, “being of tire opinion that an allegation of special damage is necessary to the setting forth of a cause of action, and that no cause of action is s.et forth.”</p>

<p>Complaint; from city court of Dawson — Judge Edwards. January 20, 1920.</p>

<p>Action for damages; from city court of Atlanta—Judge Reid. June 1, 1918.</p> <p>In this action the plaintiff sought to recover damages from the City of Atlanta for the destruction of household goods, alleged to have been destroyed by the blowing up of the house in which they were contained, by firemen of the fire department of the city for the purpose of preventing the extension of a conflagration. It was alleged that a fireman prevented the plaintiff from removing the goods from the house, and there were allegations as to the authority of the fireman. The allegations are set out in the answer of the Supreme Court to certified questions from this court, 150 Ga. 443. That court held, in substance, that, as against a general demurrer, the allegations were sufficient to show authority from the city for the acts of the firemen, and liability of the city, under the provisions of section 16-32 of the Civil Code (1910) as to the authority and liability of cities in such cases; and that it was immaterial whether the city, in destroying the property, was exercising a governmental or a ministerial function.</p>

<p>Trover; from city court of Waynesboro — Judge Davis. January 27, 1920.</p>

Action for damages; from Madison superior court — Judge W. L. Hodges. March 3, 1920. • The action was for damages on account of alleged injuries to two mules of a carload of mules shipped by the plaintiffs over .a railroad controlled and operated by the defendant as director-general of railroads.

<p>Action for damages; from Troup superior court—Judge Terrell. March 1, 1920.</p>

<p>Action lor damages; from Burke superior court — Judge Henry 0. Hammond. April 6, 1920.</p>

<p>Action for damages; from Muscogee superior court — Judge Howard. May 26, 1920.</p>

<p>Trover; from city court of Savannah-—Judge Bourke. May 22, 1920.</p> <p>Molho sought to recover from Johnson by trover an automobile bought by the defendant from Conway, who had obtained it from the plaintiff in a trade which the plaintiff contended was not completed. The verdict was for the defendant.</p> <p>1. For the reasons that “ an erroneous idea as to the meaning of preponderance of evidence” was conveyed to the jury by the quoted instruction on that subject, and that, coming in the charge in the order that it did, “ without charging fully the law on preponderance of evidence,” it coulcl be construed as an expression of opinion that the state of facts on which the judge had just charged was not fully proved, the first ground of the amendment to the motion for a new trial alleges that the court erred in charging as follows: “ If the plaintiff in this case agreed with one Conway to purchase a certain business and personal property, and in pursuance of such transaction delivered and conveyed an automobile in part payment of the money, with the intention then and there on the part of Molho to pay the balance upon some subsequent date, I charge you that Conway would be authorized to sell the machine to Mr. J ohnson or any other person. If the machine had not been delivered to Conway, or if it had been in his possession — that is, Conway’s possession'—'but with the understanding upon the part of Molho and Conway that the title would not pass until it had been investigated by counsel, then lie would not be authorized to sell the machine. I charge you, however, that you must base your verdict in the case upon the feature which carries the preponderance of evidence. I charge you that if the car had been delivered to Conway without any restrictions, and had been delivered to him as part payment in the transaction, and the plaintiff had entered into possession of the property and exercised acts of ownership over- it, under these circumstances Conway would be authorized to sell the machine.”</p> <p>2. For the reasons that “ no foundation was laid for impeaching the witness, and it was not proven that he made the statements about which he was asked,” and that in charging as to “alleged incriminating contradictory statements” the use of the word “incriminating” was calculated to prejudice the jury against the plaintiff’s evidence or to make the impression that he had committed perjury or an offense against the law, it is alleged that the court erred in charging as follows: “A witness may be impeached by contradictory statements made by him as to material matters involved in the case. Before this can be done it is incumbent that the witness’s attention be called to the time® place, and circumstances of the alleged incriminating or contradictory, statements. If you believe that the witness has been successfully impeached in in the mode mentioned, you should disregard his testimony. The question of the credibility of the witness is a matter solely and exclusively for the jury to determine, as is the question of whether or not the witness has been impeached.” The ground in which these instructions are complained of states: “Witness was asked the question, ‘ Did you not tell Mr. J ohnson in my office, in my presence, that you paid Conway $150, and had delivered him the car on account of the business F ’ He denied making this statement. Mr. Johnson, the defendant in the case, testified that Mr. Molho told him in Major Richter’s office that he paid Conway $150j in addition to giving him the electric ear for the business.”</p>

<p>Application for mandamus.</p>

<p>Trover; from city court of Greensboro — Judge Brown. May 3, 1920.</p>

<p>Complaint; from, city court of Houston county — Judge Riley. February 9, 1920.</p>

<p>Condemnation; from Barrow superior court—Judge Cobb. February 25, 1920.</p> <p>Parks interposed a claim to a certain automobile, seized because of alleged use in conveying liquors while in the custody and control of Cal Doster. On the trial of the case the jury rendered a verdict finding that the car was subject to condemnation as the property of Doster. The case came to the Court of Appeals on exceptions to the overruling of the claimant’s motion for a new trial.</p> <p>1, 2. In the motion for a new trial it is contended that the trial judge “ erred in giving the State the opening and conclusion of the argument, although the defendant, Cal Doster, introduced no evi- - deuce, and although the burden of proof was upon the claimant.”</p> <p>3. From the evidence it appears that the car in question was seized just after a collision with another car, and that-no liquor was found in it, but it smelt strongly of corn whisky, and kegs and a jug which had contained whisky were found in woods near where this car was discovered. Grounds 4 and 5 of the motion for a new trial relate to testimony of T. S. Banks to the effect that about 20 minutes after the collision he saw a third car come up with men who carried off some kegs in the car in which they came. This testimony was admitted over the objection that it was irrelevant and immaterial. Ground 6 relates to testimony of H.H.Dalton “to the effect that he found, an hour and a half after the alleged wreck of the car seized to be condemned, in a brush pile of pine brush, a 10-gallon keg and a 20-gallon keg and a jug, some of which was totally covered and the other just partly covered up, and that one of the kegs smelled strongly of whisky.” This testimony was objected to on the ground that it related to a transaction occurring an hour and a half after the alleged wreck.</p>

<p>Condemnation under liquor law; from Barrow superior court — Judge Cobb. February 25, 1920.</p>

<p>Trover; from city court of Hall county — Judge Wlieeler. March 23, 1920.</p>

<p>Eviction; from Laurens superior court-—Judge Kent. March 27, 1920.</p>

<p>There was evidence tending to show that the defendants were indebted to the plaintiff for timber cut, in an amount more than the sum admitted in the answer of the defendants. This made a question of fact to be determined by the jury, and it was error in the court to direct a verdict for the amount admitted to be due by the defendants in their answer.</p>

<p>Action for damages; from city court of Bichmond county'— Judge Black. May 11, 1920.</p>

Action for damages; from city court of Atlanta — Judge Reid. May 24, 1920. The action was for the killing of a 15-year-old son of the plaintiff by a train of the Atlanta and West Point Railroad Company when he was sitting on its track in a street of the city of Atlanta. The action was originally against the railroad company, but by amendment “the Director General of Railroads, operating” the railroad was substituted as defendant.

<p>1. Testimony as to what the witness “ found out that cotton was worth ” in a named place on a certain day was admissible over the objection that it was hearsay.</p> <p>2. Exceptions to the refusal of the trial judge to give certain requested instructions to the jury will not be considered where the whole charge given to the jury is not sent up to this court and it does -not appear that the charge failed to cover substantially the requested instructions. And this court will not order that the charge given be sent up under section 6149 (4) of the Civil Code where it does not appear that the charge was in writing or on file in the office of the clerk of the trial court.</p>

Trover; from Cobb superior court — Judge Blair. March 9, 1920.

Complaint; from city court of Cairo — Judge Rigsby. March 11, 1920.

<p>1. “The failure of the court to charge the jury upon the second ‘branch’ of the rule as to alibi, as required by the rulings of the Supreme Court in Ledford v. State, 75 Ga. 856, and in Harrison v. State, 83 Ga. 129 (9 S. E. 542), was such error as requires the grant of a new trial. Callahan v. State, 14 Ga. App. 442 (81 S. E. 380); Raysor v. State, 132 Ga. 237 (63 S. E. 786).” Moody v. State, 17 Ga. App. 121 (86 S. E. 285).</p> <p>2. The charge of the court as to the effect of proof of recent possession of stolen goods was not error for the reason assigned in the 4th ground of the motion for a new trial.</p> <p>3. The court is not required to charge upon a theory of defense arising solely from the statement of the accused, in the absence of a timely written request so to charge. Lott v. State, 18 Ga. App. 747 (2) (90 S. E. 727), and cases cited: Allen V. State, 134 Ga. 380 (67 S. E. 1038).</p>

<p>Appeal from Fulton superior court — Judge Bell. March 17, 1920.</p> <p>R. F. Mauldin, of Fulton county, was adjudged of unsound mind and committed to the State Sanitarium at Milledgeville by the court of ordinary of Fulton county in November, 1917, and his wife was appointed guardian of his person and property. On January 16, 1919, while still in the State Sanitarium, he filed in his own name a petition in the court of ordinary of Fulton county, alleging: (1) that the orders of the court of ordinary in regard to.these matters were void; (2) that various sales made by the guardian under orders of that court were void, because the orders were fraudulently obtained; (3) that the guardian was wasting the estate, and (4) that he had been restored to sanity and capacity, lie prayed that tire various orders mentioned be revoked and set aside, that the issue as to whether he was completely restored to capacity and sanity be tried by a jury, that he be declared sane and capable of handling Ms estate, and that the guardian be ordered to deliver to Mm his property, money, and effects. The ordinary issued an order that the guardian be served with a copy of the petition. She demurred on the grounds: (1) that the petition did not set forth sufficient facts to afford a basis for the relief prayed; (2) that the petition was multifarious and there was a misjoinder of causes of action; and (3) that the court had no jurisdiction of the question whether the petitioner had been restored to sanity, the petition showing that he had been committed to the State Sanitarium at Milledgeville by orders of the court of ordinary and was still confined in the sanitarium; and the courts of Baldwin county, and no other court, had jurisdiction of this matter. The guardian filed an answer denying the material allegations of the petition. There was an appeal to the superior court, and in that court, the first ground of the demurrer was overruled, and the other two grounds were sustained, with leave to amend.</p> <p>By an. amendment, which was allowed by the judge of the ■ superior court over 'objection of the guardian, the petitioner alleged: (1) On or about February 2, 1919, the. authorities in charge of the State Sanitarium at Milledgeville disnjissed petitioner from custody, by letting him leave the sanitarium, and he has not since been and is not now an inmate of the sanitarium. (2) Since that date he has not been in the custody of any authority or person, is operating a store and buying and selling property, and is, and has ’been since his trial in 1917, sane and of sound and disposing mind; (3) that under the laws of the State he can not be returned or recommitted to the State Sanitarium without a jury trial; (4) that he is and has always been a resident of Fulton county, Georgia, and that since about January 17, 1919, he has lived and done business in that county; and (5) that his original incarceration in the State Sanitarium was in violation of the law, for he was committed to the sanitarium as a pauper, when he had sufficient property to pay for any treatment that might have been accorded him.</p> <p>The guardian’s objections to the allowance of the amendment were: (1) It alleges anew and distinct cause of action. (2) It is founded on a new and entirely different set of facts from those stated in the original petition. (3) It contains facts and matters that have developed since the filing of the original petition. (4) The superior court, in cases of appeal from the ordinary’s court, is restricted in its jurisdiction to the limitations of the ordinary’s court, and the ordinary’s court could not have allowed the amendment, since it set up facts which developed after the institution of the original proceeding in the ordinary’s court. (5) The matters set forth in the statement were immaterial, irrelevant, and not germane to the original petition.</p> <p>On the trial in the superior court the petitioner testified and introduced other witnesses as to his sanity at and before that time. J. W. Stallings, deputy clerk of the court of ordinary of Fulton county, testified: “I took an order from Judge Jeffries to the superintendent of 'the State Sanitarium at Milledgeville, requesting him to deliver Mr. Mauldin to me to be brought back to Atlanta as a witness in his case. He has not been recommitted since the trial of that case as far as I know. . . In December, 1918, I went to' Milledgeville and brought Mr. Mauldin back to Atlanta. . . I went down there after him with the expectation of bringing him back and putting him in jail.” The witness testified that on their return to Atlanta he left Mauldin and did not lock him up, and considered him “perfectly sane and capable of handling his business.” The jury found “in favor of the applicant and that the letters of guardianship be revoked and his property restored to him.” The case came to the Court of Appeals on exceptions to the allowance of the petitioner’s amendment, and to the overruling of the guardian’s motion for a new trial.</p>

<p>Indictment for possession of intoxicating liquor; from Muscogee superior court — Judge Howard. June 19, 1920.</p>

<p>Indictment lor murder — conviction of shooting’ at another: from Oconee superiof court — Judge Cobb. June 3, 1920.</p>

<p>In view of the defendant’s statement at the trial and of his counsel’s request to the court to charge the law of voluntary manslaughter, it is not cause for a new trial that the court charged the jury on that subject.</p>

<p>Conviction of shooting at another; from Douglas superior court — Judge Irwin. June 4, 1920.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

Conviction of manslaughter; from Tattnall superior court — Judge Sheppard. June 3, 1920. The plaintiff in error was indicted and tried for murder and was found guilty of voluntary manslaughter. His motion for a new trial was overruled, and the judgment was affirmed by this court. See 24 Ga. App. 276 (101 S. E. 722). Thereafter, at the January adjourned term, 1920, of the trial court he filed an extraordinary motion for a new trial on the ground of newly discovered evidence.

<p>Indictment for manufacture of intoxicating liquor; from Randolph superior court—-Judge Worrill. May 29, 1920.'</p>

<p>Conviction of larceny of automobile; from Randolph superior court — Judge Worrill. May 29, 1920.</p> <p>Failure to charge on circumstantial evidence, and the charge given as to admissions and confessions (in the language of the Penal Code, § 1031), were complained of in the motion for a new trial.. It was contended that no confession was proved, though statements in the nature of admissions were shown, and that this charge tended to impress on the jury that the defendant had confessed guilt. There was no request to charge on circumstantial evidence.</p>

<p>Conviction of shooting at another; from Monroe superior court — Judge Searcy. June 4, 1920.</p>

<p>Conviction of manslaughter; from Washington superior court — Judge Hardeman. June 8, 1920.</p>

<p>Conviction of manslaughter; from Butts superior court — Judge Searcy. July 17, 1920.</p>

<p>Indictment for manufacture of intoxicating liquor; from Macon superior court—Judge Littlejohn. June 24, 1920.</p> <p>The sheriff testified: that he went to the defendant’s house when' the defendant was there, unlocked the defendant’s smokehouse with a key furnished him by the defendant, and found in the smokehouse three tubs of mobby, boiling hot, and two barrels of beer. Mobby is beer after the whisky has been run out of it. He smelled the mobby, and would say that beer from which mobby could be made was alcoholic. The barrels of beer were buried in the ground and covered with a sack, some planks, and a meat box. The beer “looked like it had just been put up; sack of meal, 25-pound flour sack; looked to be probably a peck or so of corn that looked like it was just boiled and poured in there, and the barrels filled with sweetened water. It had not reached a state of fermentation. Such a mixture as that is used for making whisky.” The meal and boiled corn with the sweetened water, in the quantities mentioned, would make an acceptable beer for the manufacture of intoxicating liquor. The witness further testified: “ Around his premises we found a trough. There was a road that went from his house down to the creek, and there was a gully washed out from the road, and those gullies were filled with cane pummaee. In one of those gullies was a trough with a hole in each end of the head. Troughs with holes in either end may not be used for watering hogs or horses or anything like that. All I ever saw were made to put a still worm through and make whisky.” Such a trough is capable of being used for the accommodation of a worm for the purpose of pouring water over it in the trough, for the distillation of intoxicating, liquor. The witness did not know of any other practical purpose for which it could be used. In the smokehouse were two tubs “about the size of the one that was used for making the whisky in,” a half barrel that was torn down and the hoops and things were under the edge of the house. There was another half barrel that looked as if it was off the same barrel, but it had not been used in some time. The witness was then asked, if he found any cap, and answered, “That was what I was speaking about; it was used for a cap.” “ In the room in the house the floor was wet and smelled sour with beer, and there were some six or eight brick piled up by the side of the fireplace that were hot, and a bucket of mud and clay sitting up in the corner of the house, sort of covered up.” On the broken pieces of the barrel found under the house the tub was muddy and stained, and the mud on the barrel staves and on the tub compared with the mud found in the bucket in the house — was the same thing. Mud is used for the purpose of combining the cap with the heater in making liquor. A barrel of syrup was found in the barn. On the fence were old 'sacks and old quilts, muddy and wet, and smelling of sour beer. In the house a quart of home-made whisky was found by reaching up the chimney, and the defendant, when talking about it, said, “I may serve twenty years for this, but I’ll tell the truth; there ain’t a speck of potash in'that; it’s pure whisky; that’s straight whisky. You saw the corn and stuff it’s made out of. That’s all the kind you get down there; it is pure stuff.” This was said freely and voluntarily. The whisky was intoxicating and looked as if it was made out of syrup and corn; the defendant said it was made out of the same kind of stuff that was in those barrels. The witness found a pot boiler, a zinc tub, and a fire at one end of the house; no worm was found, and he asked the defendant to show the worm to him, and the defendant said, “You will have to find that. I done everything you told me, but that’s one thing I ain’t going to do.” He found water there, a well and a creek. At the trial the defendant stated that the beer was there for his hogs, that he had no still or worm and had made no whisky, and did not know that the bottle of whisky was up the chimney; that about two weeks before that time a doctor had directed him to get some for his boy, who had pneumonia, and he got about five pints and gave it to his wife, and that “after they came in she put it up the chimney to keep them from finding it.”</p> <p>In subdivisions of ground 1 of the amendment to the motion for a new trial, beginning, “that the verdict is contrary to evidence and without evidence to support it,” for reasons stated, there is a summary of testimony of the sheriff, with objections to parts of it as being nonexpert opinion and mere conclusions. It was further contended that the verdict, and the sentence, which fixed a term of from one to three years in the penitentiary, were excessive and “out of proportion to the crime charged,” and “contrary to every principle of Democratic government and to the principles of justice and equity.” In the brief of counsel for the plaintiff in error it is stated that “the amended motion is an attempted elaboration of the original motion for new trial, . . . together with several minor assignments on rulings of the court, . . . now insisted upon for the reason that the admission of the’ testimony objected to was highly prejudicial to the rights of the defendant;” but there is no further reference to these rulings.</p>

<p>Indictment for larceny from house — conviction of simple larceny; from Chatham superior court—-Judge Meldrim. June 24, 1920.</p> <p>Application for certiorari was denied by the Supreme Court. According to the evidence the accused, Charles Wallace, a shipping clerk in the place of business of the Shuptrine Company, asked Charles Gadsden, a wagon driver employed at the same place, to carry off and sell for him, wherever it could be sold, a certain package containing 4040 small packages of chewing gum, belonging to the Shuptrine Company, which was then upstairs in the company’s store, and to bring the money back to him. Gadsden went to Mr. Shuptrine, the president of the company, and told him about it, and Mr. Shuptrine told Gadsden to “go ahead and take it out” as "Wallace had told him to do. Gadsden “went back upstairs and told Wallace it was all right, and he (Wallace) prat it on the elevator and brought it downstairs and put it on the wagon;” “he did not make any attempt to take it privately; he did it publicly, where any one could see it;” he placed it "on the elevator with other packages which were to be taken out, and took it from the elevator to the wagon, and the witness drove the wagon to Nevill’s place of business and told Nevill about it, Nevill informed Shuptrine that the package was there, and Shuptrine went there and got it and took it back to Shuptrine Company’s store. Shuptrine testified: “I knew this stuff was going out of the store, I would say, about midday. . . It actually left the store about half past five or six o’clock. . . It was upstairs in the store when I knew it was going out. I told Gadsden, when he informed me what Charley Wallace wanted him to do, to take out anything that Charley gave him to take out. Gadsden told me he took it out. I did not see it on the wagon before it was taken away from the store. . . I told him to take the stuff that Charley gave him and carry it away from the store. That is all I told him. I did not tell him to go upstairs and bring the goods down himself.” The wholesale value of the package was about $140. A detective testified that the defendant freely and voluntarily told him and Mr. Shuptrine that this package was “ the first and only thing that he ever stole from Mr. Shuptrine,” and that when he stole the package he gave it to Gadsden to take out and sell for him. At the trial the defendant stated that Gadsden said to him, “If you will put 50 boxes of Adams gum up for me to take out on the wagon, I will take it out and sell it. . . I will get $40 for it and we will divide the $40 between the two of us. . . You aré the shipping clerk here, and there is no chance of getting anything from here without you knowing it;” so Gadsden got it and put it on the elevator and took it down with, the other freight.</p> <p>The jury found the accused guilty of simple larceny, his motion for a new trial was overruled, and he excepted. The main contention in the motion for a new trial was that the consent of the owner prevented the taking and carrying away of the package from being larceny. In one of the grounds of the amendment to the motion it is alleged that the court erred in refusing to charge that “if the defendant conceived a plan of stealing the property described, and set out to put his plan in execution, but did not remove the property from the premises, and thereafter an agent of the owner, with the consent of the owner and at the instigation of the owner, assisted the defendant in removing the property from the premises, the defendant would not be guilty of larceny from the house, since the property was being removed with the consent of the owner and the active assistance of his agent.” In this ground it is alleged that “the fact that the defendant may have been convicted of simple larceny will not alter the case, since it was shown that the defendant had charge of the goods as shipping clerk, and the fact that he may have changed the position of the goods in the store would not complete the crime. He had to do an unauthorized act with regard to the removal of the goods. He had to get the goods from the store without the consent of the owner or the assistance of his agent.” For this reason it is alleged in another ground of the motion, that the court erred in charging that if the goods were “moved at all by the defendant, that is in law a sufficient asportation or taking of the goods.”</p> <p>The court, on request of the defendant, charged as follows: “ If the agent of the owner of the property described in the indictment, after obtaining the permission of the owner to move the goods from the premises, then went to the prisoner and induced the prisoner to steal the property, and the prisoner did take the property and delivered it to the agent of the owner of the property, the defendant would not be guilty; and it does not make any difference, as far as his guilt or innocence is concerned, that he did not know the owner had consented to the taking of the property.” Later the court, in response to an inquiry from the jury as to whether they could find the accused guilty “if he did not steal privately and was not' the originator of the crime,” charged them as follows: “Now, as to what you mean, by originator of the crime. I' am not clear. I charge you upon this subject, if he had the intent to steal, whether that intent originated with him or with some one else, you would be authorized to find him guilty, if all the essential elements were proven to your satisfaction and beyond a reasonable doubt. But if Mr. Shuptrine consented to his taking and carrying away the goods of the Shuptrine Company, then he could not be found guilty.” It is alleged that the court erred in thus charging in response to the inquiry of the jury, because the effect of this part of the charge was to remove from the consideration of the jury one of the defenses, “to wit, the fact that the defendant was induced to remove the property by the agent of the owner of the goods, and that therefore the goods were not taken against the will of the owner.”</p>

<p>Accusation of carrying pistol; from city court of Macon — Judge Guerry. July 2, 1920.</p> <p>The definition of a “reasonable doubt,” as given in the charge of the court, was complained of in the motion for a new trial, the movant contending that it “was error and that it would, have been better -fox the court not to have defined a reasonable doubt at all, and that the use of the word ‘conjecture’ was error.” The instruction complained of was as follows: “A reasonable doubt, as contemplated by law in the trial of a criminal case, is not a doubt which is a mere conjecture that the defendant may possibly be innocent, but is a doubt as to his guilt which exists after a conscientious effort to ascertain the truth on that question from the evidence, and which is of so serious a nature as to prevent an impartial mind from being convinced by the evidence to a moral and reasonable certainty that the defendant is guilty.”</p>

<p>Indictment for possession of liquor; from Jefferson superior court-—Judge Hardeman. June 28, 1920.</p>

<p>Indictment for larceny of hog; from Wilkinson superior court — Judge Park. July 19, 1920.</p> <p>The court charged in substance that the jury would be authorized to convict the accused if the evidence satisfied their minds that the hogs were stolen from the prosecutor and were found in the recent possession of the defendant, and if the defendant or the evidence in the case failed to give a reasonable explanation of this possession. This part of the charge was complained of as expressing an opinion that these facts would prove guilt beyond a reasonable doubt. It was further contended that the court erred in using the words “ recent possession ” and not explaining that it is the possession of the recently stolen hog that .would require an explanation.</p>

<p>Indictment for larceny of bog; from Wilkinson superior court — Judge Park. July 19, 1920.</p>

<p>Accusation of misdemeanor; from city court of Houston county — Judge Eiley. July 12, 1920.</p> <p>The accusation • charged Leon Starke with having stolen from E. S. Braswell’s storehousé a bolt of homespun cloth. Braswell testified, that at a certain time he had three bolts of yellow homespun in front of his store, that one of them was stolen, and he had never seen it since, and that its value was $20 to $22. Ed Dawson testified: “ One night, about the time this homespun was stolen, the defendant, Leon Starke, came to Eogers Brown’s store where I was, and called me out and asked me if I wanted to buy a bolt of yellow homespun. I asked him what he wanted for it, and he said $8. I told him I did not have the money. He did not have homespun or any kind, of cloth with him. I never did see him with any cloth.” The police officer who arrested the defendant testified that Ed Dawson said that the defendant had a bolt of homespun with him when he offered to sell the homespun; but tbe officer, when recalled, testified that he did not remember whether Dawson said that the defendant had any cloth with him or not. The defendant, in his statement at the trial, denied that he had stolen the homespun. He said that he knew nothing about it and had. never spoken to Lawson about selling him homespun. There was no additional testimony. It was contended on-the part of the defendant that the conviction was unauthorized because the evidence failed to show that he ever had the homespun in his possession or was in- any way connected with the theft.</p>

<p>Indictment for possession of liquor; from Madison superior court —■ Judge W. L. Hodges. July 30, 1920.</p>

Accusation of possession of liquor; from city court of Brunswick—■ Judge Butts. July 14, 1920. Application for certiorari was denied by the Supreme Court. Writ of error from the Supreme Court of the United States was granted.

<p>Exceptions not argued in the brief for the excepting party in this court will not be considered.</p> <p>The charge of the court as to recent possession of stolen property was not cause for a new trial.</p> <p>Whether the defendant’s explanation as to his possession of the articles alleged to have been stolen was consistent with his innocence was a question of fact, to be determined by the jury, and this court can not interfere with their determination of the question, under the evidence in this case.</p>

<p>Conviction of involuntary manslaughter; from Thomas superior court—■ Judge Thomas. August 17, 1920.</p> <p>The only grounds of the motion for a new trial other than the general grounds relate to the charge of the court that “it is a rule of law, if a witness swears wilfully and knowingly falsely in a matter material to his testimony in the case, then the evidence of such witness is to be disregarded entirely, unless corroborated by the circumstances of the case or other credible evidence." It is contended that although this is correct as an abstract principle of law; it was not authorized by the evidence, “the only attempt to impeach any witnesses being by the method of proving contradictory statements made as to matters relevant to the witness’s testimony and to the case;" and that after the court had.thus undertaken to charge upon the subject of impeachment, the failure to charge anything further on that subject was error; that the court should have charged on “the weight, if any, that should be given to the testimony of any witness' whom the jury might find to have been successfully impeached," and should have charged the rule of law. providing for the impeachment of contradictory’statements previously made by him as to matters relevant to his testimony and to the case. Counsel cited: 125 Ga. 269 (2); 17 Ga. App. 561 (2).</p>

<p>Accusation of cheating and swindling; from city court of Cairo — Judge Eigsby. August 23, 1920.</p>

<p>Accusation of violation of liquor law; from city court of Macom—Judge G-uerry. August 13, 1920.</p>

<p>Accusation of possession of liquor; from city court of Black-shear— Judge Mitchell. August 3, 1920.</p> <p>The accusation charged that the accused had, controlled, and possessed “certain alcoholic, spirituous, vinous, malted, and fermented liquors and alcoholic compound and malt liquors, which can be diluted and when so diluted may be used as a beverage and will produce intoxication; the same not being pure alcohol to be used for medicinal, mechanical, and scientific purposes, and not being wine to be used for sacramental purposes.” In the instruction referred to in paragraph 1 of the decision, the court, after the words “these named liquors or beverages, "consisting of any spirituous, vinous, malt, or fermented liquors,” added: “or other intoxicating liquors or beverages;” and it is alleged that this was error, because the jury were thereby authorized to convict if they found that the accused had “other intoxicating liquors or beverages” than the liquors described in the accusation; also “because under the charge of the court the jury would have been authorized to convict even though the defendant might have been in possession or control of liquors or beverages which were not intoxicating, while the accusation alleged that all the liquors he was charged with having, controlling, or possessing were such as might be used as a beverage and would produce intoxication; and it was a vital issue whether the testimony of the only witness offered by the State established the fact that the only liquor testified about by him was such as might be used as a beverage and was intoxicating.”</p> <p>On the trial the sole witness for the State was the sheriff, who testified that at a “moonshine still” in a branch he “saw the defendant walking around the still from place to place, and he appeared to be in charge of it; there was a fire under the still and a charge was on;” the witness heard voices of others,, who got away, but he saw nobody but the defendant; the defendant also started out, and the witness arrested him. He further testified: “There were about 400 gallons of mash or buck there at the still. This mash or buck had reached different stages, some more advanced for stilling than others, some of it more of a mash and some the liquid had come to the top and was clear, and the substance had gone to the bottom. It was intoxicating .and could be used as a beverage. They had been digging a well near the still, and when the defendant started out of the branch he • had some of the mash or beer on his clothes and also some of the mud from the well. I never saw the defendant doing anything at the still except walking around there from place to place. I did not see him put anything in the still or put any fire under the still. . . We did not find anything there in the way of liquors but this mash or buck, and none of it had been stilled. I know this mash or buck was intoxicating because I had seen some that looked like the same kind tried on some hogs. I did not drink any of it. I do not know what was in it. I know that there was some meal in it. I have had experience with stills before.” Witnesses for the defendant testified that the mash or buck found at the still could not be used as a beverage.</p>

<p>Action for damages; from Monroe superior court — Judge Searcy. March 8, 1920.</p> <p>As to the use of annuity and mortality tables as a means of arriving at the present cash value of prospective earnings, in estimating damages, the court gave to the jury certain instructions set out below, which the motion for a new trial alleges were “error and calculated to confuse and mislead the jury/’ for the following reasons: (a) Movant contends that the jury might have understood therefrom that they could use both the mortality table and the annuity table in the same calculation, and the judge nowhere instructed the jury that these tables could not be used conjunctively in the same calculation and did not instruct the jury as to the real purpose the tables were intended to subserve, (b) The court, as movant contends, instructed the jury that the mortality table could be used to reduce the gross • amount of the plaintiff’s alleged loss to its present cash value. Movant contends that the object and the only use of the mortality table is to show the plaintiff’s expectancy in years, and that the court should have instructed the jury that having found the plaintiff’s expectancy from the mortality table, they could, by multiplying his annual loss by his expectancy in years as thus found, determine his gross loss as shown by that table, and that having found his gross loss in this manner, they must reduce the gross loss to its present value, (c) Movant contends that neither the mortality table nor the annuity table can be correctly used without first ascertaining from the evidence the amount in which the plaintiff’s earning capacity has been reduced per annum, — in other words, his annual loss, — and movant contends that the court nowhere instructed the jury to find the plaintiff’s annual loss., (d) The court, as movant contends, instructed the jury to find the plaintiff’s expectancy in years from the mortality table, but nowhere instructed them how to caleulate his damage from his expectancy and nowhere instructed them to multiply his annual loss by his expectancy in years, in order to ascertain his gross loss, and nowhere explained the object of finding the plaintiffs expectancy, (e) It is contended that the court erred in not giving certain instructions set out in this ground, which mainly are in the language of forms of instructions recommended in the opinion of Lumpkin, J., in the case of Florida Central &c. R. Co. v. Burney, 98 Ga. 6 et seq.</p> <p>The instructions complained of were as follows: “If you find any damages in favor of the plaintiff, you could not give the gross amount that he would earn during his life, but you must reduce such an amount to the present cash value thereof, figured on a basis of seven per cent, per annum. The present value of a given sum may be arrived at by dividing said given sum by one dollar plus the legal rate of interest at seven per cent, for the given time. This is just one rule by which this calculation may be made. The jury, however, is not bound to adopt this method, or any method, but are at liberty to employ any method or rule known to them and to proceed by that, provided it is a correct rule. It is your duty to determine this issue, and you should do it correctly; and, to aid you in this determination, certain tables have been put in evidence, which you can use on this branch of the case if you desire. You are not obliged to use them. One of these tables is called a mortality table, and is designed to show the expectancy of life of persons of given age, of average health and constitution. The method of using this table would be to look under the column marked ‘Age’ until you find the figures representing the age of the plaintiff as shown by the evidence, if the age appears; then you would look under the column marked ‘Expectation, years,’ to the right of the age column, and you will find figures there representing the expectancy of years of the average health and constitution of a person of the age of the plaintiff, and, according to this table, these figures would represent -the number of years of expectancy of such person, — that is, the number of years he might be expected to continue in life; but whether these figures would or would not represent the plaintiff’s expectancy you determine from the evidence, either increasing, decreasing, or adopting the figures thus ascertained, as you determine is right.</p> <p>“The other table is called a table of annuity, and is designed to show the present cash value of an annuity of a dollar in favor of persons of 'a given age. This table has three columns, — one marked ‘Age/ one marked ‘Six per cent./ and one ‘Seven per cent/ The method of using this table is to look under the age column until you find the figures representing the plaintiffs age at the time of his alleged injury; then look under the seven per cent, column opposite this age and you will find certain figures representing dollars or fractions of dollars. The meaning of this is that the annuity of a dollar, of the age of the person therein shown, would be the amount expressed in the seven per cent, column opposite the figures representing his age; that is, that these figures would represent the cash value of an annuity of a dollar. Then, by taking the figures representing the amount of the plaintiffs loss by reason of his diminished power and capacity to labor, if you find such, and multiplying this amount by the figures representing the present cash value of one dollar, as ascertained in the manner above described, you will get the amount representing the cash value of the sum found and allowed, if any, according to the table. Whether this sum would represent the correct amount you allow on this item you must determine for yourselves, either increasing, diminishing, or adopting the figures ascertained, as you may think right.”</p> <p>As to the exceptions to these instructions the trial judge, in his order overruling the motion for a new trial, said: “Exception is taken to the charge of'the court as to the use of the mortality and annuity tables. If the exception is conceded to be meritorious, yet if the extent and character of plaintiffs ■ injuries are considered, the pain and suffering endured by him, it could not be said that the verdict on this element of damages alone is at all excessive, or even compensates him therefor; so it must follow that this charge, which related to another and different element of damages, was harmless, even if erroneous.”</p>

<p>Complaint; from McDuffie superior court—■ Judge Henry C. Hammond. March 12, 1919.</p> <p>In her petition against Thomas E. Watson, filed August 13, 1918, Mattie Belle Burnley alleges, in brief, that in February, 1904, he and J. D. Watson, who was then her husband but from whom she was separated, entered into a contract with her for the purpose of making a settlement of a proceeding for alimony, then pending, which she had instituted against J. D. Watson, and the proceeding was settled by the contract. It is alleged that by the terms of this contract she “was to receive $25 per month so long as she should live and remain single, and without any other contingency whatsoever, and by the terms of said contract said Thomas E. Watson became surety thereon and bound himself for the true payment of said amount on the first day of each month as above stated;” that he jiaid the $25 monthly to her from the time of the making of the contract up to and including April, 1918, when J.. D. Watson died, but not for any subsequent month, and is due her this agreed sum for each of the four ensuing months (including the month of the filing of the petition), and refuses to pay the same; and she sues for the aggregate sum of $100. It is alleged that she was divorced from' J. D. Watson after the contract was made, and her former name, in which she sues, was restored to her. A copy of the contract was attached to the petition.</p> <p>The defendant demurred on the grounds: (1) that no cause of action is set forth; (2) that the alleged contract is contrary to public policy, in that it provides for a divorce and dissolution of the marriage contract, as one of the contingencies on which the alleged contract shall be carried out; and (3) that the alleged contract is in restraint of marriage, after divorce, and is therefore contrary to public policy and void. The demurrer was overruled and the case came to the Court of Appeals on exception to that ruling. The controlling questions in the case were certified by this court to the Supreme Court; and those questions, with the contract, and the opinion of that court, appear in 150 Ga. 460.</p>

<p>Action for damages; from Floyd superior court-—-Judge Wright. January 12, 1920.</p> <p>The plaintiff offered to buy from the defendant certain cottonseed, stating that he wanted a variety known as Cooke’s seed, and no other, and was willing to pay a higher price if he could get that variety of seed. The defendant offered to sell to him Cooke’s cottonseed, and did sell to him certain seed which the defendant represented to be Cooke’s seed. He planted it, and when the crop matured he found that it was not Cooke’s, but another variety of seed. He sued for breach of contract, and by demurrer the defendant contended that no cause of action was set forth in the petition, and that the damages asked were too remote and speculative. The plaintiff then amended the petition and alleged that the "defendant well knew at the time said seed were purchased the purpose for which they were bought, and also knew that said seed were not of the variety called for under the contract, and the defendant, wilfully and with the knowledge that said seed were not Cooke’s seed, fraudulently, for the purpose of selling them to plaintiff at the high price named, represented that seed to be Cooke’s seed.” To the petition as amended the defendant demurred generally and specially, contending that there was no cause of actign, and that the plaintiff was attempting to .set up therein a cause of action ex contractu coupled with a cause of action ex delicto. The court overruled the demurrer, and the defendant excepted.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. December 18, 1919.</p>

Complaint; from Hart superior court-—- Judge Cobb presiding. December 15, 1919. The executors of T. W. Teasley, deceased, sued Thomas Jones and Judy Jones, as joint principals, on a promissory note signed by them as such and made payable to T. W. Teasley & Company. Paragraph 4 of the petition alleges, that T. W. Teasley was the sole member of the firm operating under the name of T. W. Teasley & Company, and that the note belonged to him at the date of his death.

. Action on bond; from city court of Nashville — Judge Smith. December 19, 1919.

<p>Complaint; from city court of Savannah-—Judge Freeman. January 5, 1920.</p> <p>The suit was filed October 20, 1919. The Atlantic Coast Line Railroad Company was originally one of the defendants, but was stricken by amendment. The petition alleges: “Under and by virtue of a proclamation of the President of the United States and the laws of Congress relative thereto, Walker D. Iiines, director-general of railroads of the United States, and his predecessors in office, is now and was on April 12, 1918, controlling and operating” the Atlantic Coast Line Bailroad Company. That company “and Walker D. Hines, director-general as aforesaid, maintain and operate a Belief Department, which is a department of the company’s service, of the nature of a mutual benefit association, the object of which is the establishment and management of a fund to be known as the ‘Belief Fund,’ for the payment of definite amounts to employees contributing thereto, who are known as members of the Belief Fund, when, under the regulations of the said Belief Department, they are entitled to such payment, by reason of accident or sickness. The Belief Fund consists of contributions from members thereof, and benefits due to members by reason of sickness or disability are guaranteed by the said Atlantic Coast Line Bailroad Company.” On April 12, 1918, plaintiff was in the service of the said company and in good standing as a member of the relief department, holding a certificate of membership, a copy of which is attached to the petition; and while actually on duty on one of the trains of the company on that date he suffered a stroke of paralysis, which totally incapacitated him from further work, and by the terms of his certificate in the relief fund and the regulations governing the same he is entitled ,to the benefits provided by the relief fund, to wit, the sum of $1 per day for 52 weeks, except $42 which was1 paid to him, and the defendant refuses to pay his claim. He sues the said director-general for $317 and interest.</p> <p>A general demurrer to the petition was sustained in an order in which the judge' said: “ Whatever the plaintiff’s rights may be as against the Atlantic Coast Line Bailroad Company, it seems to me that the petition is insufficient to make a case against demurrer, because it does not appear either that the defendant took over the relief department of the company, or that under the law governing the railroad administration, or the orders pursuant thereto, so far "as I am advised thereof, he was authorized to do so.”</p>

<p>Action for damages; from city court of Valdosta'—Judge Cranford. February 7, 1920.</p> <p>Tbe action was against a dentist, for alleged negligence of an agent or employee in his office, in extracting two teeth. The trial resulted in a verdict against the defendant, for $500. On the trial a witness for the plaintiff testified that he had been practicing dentistry since 1905. In one of the grounds of the motion for a new trial it is stated that this witness “was permitted to testify before the jury, in response to a question by plaintiff’s counsel in regard to the value of a tooth alleged to have been wrongfully extracted by defendant’s agent, if he (the witness) thought a thousand dollar’s would be excessive, as follows: ‘No, sir, I don’t think it would.’” It is alleged that this evidence was illegally admitted, over the objections of the movant that “such question and the answer thereto called for an opinion of the witness not based upon his experience as a dentist,” that “the witness could not legally express an opinion as to the value of a tooth, ” that “ any answer he might give to the question propounded would be purely a question of abstract opinion on his part,” and that “if the witness undertook to speak as a dental surgeon, his opinion as to the value of a tooth to am individual would be obliged to be tinged with his opinion as a man.”</p>

Action for damages; from city court of Albany — Judge Clayton Jones. February 14, 1920.

Trover; from city court of Athens — Judge Greene. March 20, 1920. By suit in trover Carter sought to recover certain cotton from Booth. According to the evidence the plaintiff rented certain land from Booth under a written instrument, dated March 10, 1917, reciting that it was “for this year.” Owing to bad weather and illness in his family he was unable to gather all his cotton crop before the expiration of the rental term.

<p>Action for damages; from city court of Atlanta — Judge Keid. April 14, 1920.</p>

<p>Complaint; from Fulton superior court — Judge Bell. April 28, 1920.</p> <p>The action was based upon parol promises, alleged to have been made to the mother by the father of an illegitimate child, to pay for the child’s support and education. The original petition was filed in 1919. As amended the petition alleges substantially: that in 1901 the plaintiff gave birth to a daughter as a result of cohabitation with the defendant while engaged to be married to him; that when she discovered that she was pregnant she immediately informed him of the fact, and he then told her that if she would carry the child to maturity and say nothing about his wronging her, he would furnish to her and the child a home and support; that he gave to her $50 just prior to the birth of the child, and aided her sparingly at intervals until July, 1918, paying very small sums and each time stating that he was .ternporarily out of cash, and giving other excuses for not properly caring for her and his daughter according to his promises, and stating each time that he would furnish the necessary cash to them within a few days, and ho continually renewed these promises until he married another woman; that he “repeatedly, every few months, from December, 1903, until he got married in 1919, renewed his promises to petitioner to pay all expenses incurred in rearing, maintaining, and educating said child,” and he now refuses to comply with the terms of his contract; that “ petitioner has complied strictly with all of the terms of the parol contract entered into between her and defendant, to wit, petitioner has reared, supported, maintained, and educated their daughter, . . and defendant has done very little towards complying with the terms of his contract;” that because of his said promises she expended $12,594 in rearing, maintaining, educating, and supporting the said child, this being $30 per month from the birth of the child in March, 1901, to June 30, 1919, the time of filing the suit; and that the various sums contributed by him for these purposes (an itemized statement of which is set out, with dates of payment, beginning in 1903 and continuing through each year until July, 1918) amounted only to $194, leaving the sum of $12,400 which the defendant is indebted to the plaintiff, and for which sum she prays judgment. It is alleged that on September 7, 1915, the defendant wrote to the plaintiff a letter enclosing a ' check, “ in which letter he fully recognized his liability on his oral agreement entered into with, [her] in 1901 and renewed each time he paid [her] the sums of money set forth in this petition.” A copy of the letter is set out. It is signed with the defendant’s name, states that a check for $8 is enclosed, mentions the child’s name, given in the petition, asks that her books be exchanged for new books, and says: "it will save that much and get those other things she wants; ” and tell her ■“ if she clonit get what she wants now I will try and get them sometime soon.”</p> <p>The defendant demurred to the petition as amended, on the grounds: (1) No cause of action is set forth. (2) The cause of action is barred by the statute of limitations. (3) The letter alleged to have been written on September 7, 1915, is not such a writing as constitutes a new promise which renews a right of action already barred by the statute of limitations; it does not identify the debt or.any debt, and does not show that it is connected with a debt growing out of a promise made by the defendant to the plaintiff. The court overruled the demurrer.</p>

Action for damages; from Dooly superior court — Judge Gower. May 3, 1920.

Action on contract; from city court of Atlanta-—-Judge Reid. March 20, 1920. The action was by Mrs. Louise de Give Iiorine against Mrs. M. P. Hicks, for damages on account of the alleged breach of a contract of the defendant to purchase from the plaintiff certain land known as the “Lee Worsham place” and further described in the language quoted in the foregoing decision.

<p>Certiorari; from Fulton superior court — Judge Bell. March 20, 1920.</p>

<p>Complaint; from Bartow superior court—'Judge Tarver. December 20, 1919.</p> <p>Norris & Hall sued Republic Iron & Steel Company, alleging that the defendant leased from the plaintiffs certain land for the purpose of mining manganese oie, agreeing to “mine and remove from the leased premises all of the commercial manganese and manganiferous ore that is in, on, or under said leased premises,” and “to pay lessors a royalty of $1.00 per ton of 2,240 pounds for all manganese and manganiferous ore mined and removed from said premises.” The lease contained a clause stating that if there should be a disagreement as to when all the said ore had been removed, the question should be submitted to arbitration. It is alleged that the said company, after having fraudulently covered up and concealed certain remaining portions of the ore, represented to the plaintiffs that all the ore had been exhausted; that the plaintiffs did not agree with this statement, and an arbitration of the question was entered into as provided by the terms of the lease, and the arbitrators made an award in favor of the plaintiffs, the finding in effect being that all the ore had not been removed. The plaintiffs seek to recover the amount of certain expenditures incident to the arbitration and alleged to have been necessary, including fees of the arbitrators, stenographer’s fees, attorney’s fees, and a sum expended in removing certain dirt for the purpose of uncovering, for inspection by the arbitrators, ore which it was alleged had been fraudulently concealed by the defendant. On the trial the plaintiffs, apparently without objection, amended the petition by amplifying the allegations to the effect that defendant wilfully ’and fraudulently blew up the mines and covered up the ore, preparatory to bringing on the arbitration. The defendant demurred on the grounds, among others, that (1) no cause of action is set out; (2) none of the arbitration expenses are recoverable, because the petition shows that the defendant was merely insisting on its legal rights in demanding arbitration; (3) the arbitrators having made no award in regard to arbitration expenses, their failure to do so amounted to an adjudication against the right to recover any such expense; and (4) it appears from the petition that before the arbitration the plaintiffs had notice of the defendant’s alleged fraud in covering up the ore, and were not deceived or misled by it. The demurrer was overruled as to the sum expended in removing the dirt in order to permit the inspection of the ore by the arbitrators, but was sustained as to the other items. In the main bill of exceptions the defendant excepts to the overruling of the demurrer as to the expense of removing the dirt; and by cross-bill the plaintiffs except to the sustaining of the demurrer as to the other items.</p>

<p>Action for 'damages; from Lincoln superior court—Judge Walker. March 25, 1920.</p>

<p>Conviction of shooting at another; from Crawford superior court — Judge Mathews. June 16. 1920.</p>

<p>Appeal; from Johnson, superior court—Judge Kent, March 16, 1920.</p>

Complaint; from city court of Savannah—Judge Freeman. March 30, 1920. Cambridge sued Bache for an alleged, breach of the following contract: “Order for Oldsmobile.

<p>Certiorari; from Fulton superior court — Judge Bell. March 16, 1920.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Levy and claim; from Treutlen superior court—Judge Graham. February 18, 1920.</p> <p>In the year 1918 and for some time prior thereto, the Durden Lumber & Timber Company operated a saw and shingle mill near the town of Soperton. MeCrimmon, a supply merchant, in that year furnished supplies which were used in the operation of these mills to the amount of $338.94. The debt was not paid, and MeCrimmon foreclosed his lien, provided for by section 3358 of the Civil Code (1910), and the execution was levied upon 19,600 shingles, the product of the mills. No defense was filed by Durden Lumber & Timber Company, but the National Bank of Savannah filed a claim to the shingles levied on, and the issue in the court below was whether the property levied on was subject to McCrimmon’s lien, as again the claimant. On the trial the plaintiff made out his case against the Durden Lumber & Timber Company, and the claimant introduced in evidence a paper dated and recorded more than a year previous to the date of the plaintiffs lien, the claimant contending that this instrument was a deed passing title to the timber from which the shingles levied on were made, and that consequently the shingles levied on were not, as against it, subject to McCrimmon’s lien. The plaintiff insisted that the claimant’s paper was not an absolute conveyance, nor such a conveyance as would defeat his lien; and the plaintiff offered as evidence a certain instrument from one Gillis, under which Durden Lumber & Timber Company held title, for the purpose of showing that when that company’s paper to the bank was made, the company did not have title, but had only what amounted to an option on the timber from which the shingles were made, and that actual title was acquired after the date of the instrument made by it to the bank. The trial judge held that the conveyance by the Durden Lumber & Timber Company to the National Bank of Savannah operated to put title in the bank,-and, being antecedent to, was superior to McCrimmon’s lien; and he refused to allow the plaintiff to introduce the Gillis instrument, and directed a verdict for the bank. MeCrimmon excepted.</p> <p>The instrument from the Durden Lumber & Timber Company to the bank and under which the bank claimed title began as follows: “This indenture made this 28th day of February, 1917, between the Durden Lumber & Timber Company, a corporation under the laws of the said State, having its principal office in said county, hereinafter called the borrower, and the National Bank of Savannah, a corporation under the laws of the United States, having its principal place of business in said county, hereinafter called the lender. Whereas this deed is given to secure the payment of an indebtedness from the borrower to the lender, and conveys to the lender an absolute title to the property hereinafter described, and is a deed to secure debt under section 6037 of the Code of Georgia of 1910, which indebtedness is now $85,325.07, and this deed is also given to secure all charges and interest thereon and any renewal thereof in whole or in part, and shall secure the payment of any other indebtedness due or not due from borrower to lender which may at any time exist, it being specifically agreed that any indebtedness from borrower to the lender, whether as maker, endorser, surety, guarantor, and in any other way whatever, due or not due, shall be secured hereby, so that this deed shall secure the payment of said indebtedness, however created or evidenced or in whatever way existing.” It then conveyed the pine trees and pine timber on 879% acres (known as Gillis, or M. B. and N. Gillis timber), and continued: “Together with all the rights, easements, hereditaments, and appurtenances of every sort, kind, and description, and all the covenants, ways, warranties, and rights, conveyed unto the said Frank R. Durden by the said deed from M. B. and N. Gillis, subject to a conveyance thereof to secure debt to the National Bank of Savannah, dated ■October, 1915. . . To have and to hold the said above described property in fee simple. The title of the said land and premises the borrower does hereby warrant to the lender.” The deed provided for maturity of the debt in case of default in payment of taxes, and further provided as follows: “When any indebtedness hereby secured becomes due, then the said lender shall have the right, by a writing, to appoint a trustee for the collection of the indebtedness hereby secured, with the powers herein specified, and to remove such trustee at will and appoint a successor or successors, with all the powers herein given to said trustee. After the appointment of said trustee, should he collect the debt hereby secured, he shall be entitled to a commission of five per cent on the amount hereby secured, but if he sell the property he shall be entitled to a commission of ten per cent on the amount hereby secured, but -trustee shall not be entitled -to collect any attorney’s fee.” The manner, method and cost of the sale which might be conducted by such trustee is then provided for.</p> <p>The paper from Gillis to the Durden Company, offered in evidence by the plaintiff and rejected .by the court, purported on its face to be an absolute and unconditional sale of all the timber involved, and the contention that it amounted to nothing more than an option was based on' the fact that it contained certain provisions for a survey and subdivision of the premises, and restricting the right of the Durden Company to remove the timber except from the several subdivisions seriatim, after payment of a stated sum in each case.</p>

<p>Action for damages; from-city court of Valdosta — Judge Cranford. April 12, 1920.</p> <p>Mrs. Leone Evans, by W. A. Evans as next friend, brought suit against Walker D. Hines, director-general of railroads (described by amendment as agent of the director-general), in control of and operating the Atlantic Coast Line Eailroad, to recover damages for personal injuries. She alleged substantially as follows: On April 1, 1919, Mrs. Evans with her husband was, with the permission and consent of the defendant, and under and by virtue of his authority, living near Ousley station, Lowndes county, in a house just west of the east end of the passing track at the station and approximately 40 feet north of the center of the main line. Shortly before that date she gave birth to a child, and she was still weak and nervous, although she had sufficiently recovered to be up and attending to the usual duties of her household. The defendant had allowed one of its freight-cars to become defective and unsafe for operation, in that one of the arch-bars thereon had become loose and dropped down much below its normal or proper position, and, as a freight-train carrying this car on the said date approached the said station, the said defective arch-bar caught the passing track, and as a result a serious wreck ensued. The freight-train at that time was being operated at a rate of speed of from 35 to 40 miles per hour, and a number of the cars of the train were derailed and were thrown about and piled upon each other with great force and violence, and one of them was thrbwn or fell over against the house in which the plaintiff was living, with such force and violence as to knock the house off its pillars and demolish the chimney, and to cause other injury and damage thereto. Paragraph 9 alleged: “ Petitioner was in said house at the time of said wreck, and at the time said ear struck and demolished it as aforesaid, and as a result thereof was thrown about and severely shocked, and she alleges that the shock then received by her when said car struck and demolished said house as aforesaid caused the serious mental and physical condition hereinafter described.” Paragraph 10 alleged that “ as a result of said shock and injury the mind of petitioner almost instantly became unbalanced, and shortly thereafter, although she had the best of care and attention and medical skill, lier mental condition gradually grew worse until slie reached a state of total insanity, and it became necessary, by a judgment of the court, to commit her to the State insane asylum." The acts of negligence charged are as follows: (a) the said train was being operated at said point and over' said passing track at a reckless and dangerous rate of speed; (b) the said arcli-bar had been permitted to work loose and drop down to such an extent that it caught the said passing track and derailed said car; (c) the said car was being carried and operated at said time in said train, notwithstanding the said arch-bar was in an unsafe condition. It was alleged that the negligence of the defendant, as set out, was the sole and proximate cause of her injury.</p> <p>The defendant demurred as follows: “ (1) The petition does not set forth a cause of action against the defendant; (2) the petition is brought to recover damages for the impairment of the mind of the plaintiff, resulting from mental shock or fright, and the petition shows by the facts alleged that no physical injury attended the cause for fright, and the fright was not of such a nature as to produce physical or mental impairment, directly and naturally resulting from the negligent acts alleged in the petition; (3) the petition shows by the facts alleged that there was no actual immediate personal injury to the plaintiff, and the petition fails to show that the impairment of the mind of the plaintiff was the natural and proximate result of the fright or shock, or that the defendant could or should have known that the negligent acts alleged in the petition would with reasonable certainty cause the results complained of.” Upon the hearing of the demurrer the plaintiff offered an amendment to paragraph 9 of the petition, amplifying the allegations as to the character and extent of her injury, the paragraph as finally amended being made to read as follows: “ That your petitioner was in said house at the time of said wreck, and at the time said car struck and demolished, it as aforesaid, and as a result thereof was thrown about and upon and against the floor and severely shocked, and she alleges that the shock then received by her, when said car struck and demolished said house as aforesaid, caused and produced great bodily and mental pain and suffering, and caused the serious mental and physical condition hereinafter described.” The amendment was allowed over the defendant’s objection that it sought to set forth a new cause of action. The demurrer was then overruled. Error is assigned on the allowance of this amendment and the overruling of the demurrer.</p>

<p>Action for damages; from city court of Savannah-—■ Judge Freeman. March 20, 1920.</p>

<p>Action for damages; from city court of Americus — Judge Harper. May 5, 1920.</p>

<p>Complaint; from Clarke superior court — Judge Cobb. February 24, 1920.</p>