Volume 26 — Georgia Appellate Reports

Action for damages; from city court of Hall county — Judge Wheeler. January 3, 1920. The action was for loss of services of the plaintiff’s wife by-reason of injuries from a fall alleged to have been caused by a sudden jerk and starting of the defendant’s train when she was alighting from it at her destination. On the trial the plaintiff introduced in evidence liis wife’s testimony on a former trial of the case..

<p>Action for damages; from city court of Oglethorpe — Judge Greer. March 16, 1920.</p> <p>A former decision in this case appears in 18 Ga. App. 584.</p> <p>The plaintiff’s letter to the defendant’s superintendent, referred to in paragraph 2 of the decision, which was offered in behalf of the plaintiff and was admitted in evidence over the objection that it was a self-serving declaration, states that the writer files “ claim for damage done on account of cruel treatment received from one of your employees to-day while awaiting at your station here as a passenger,” and states the conduct complained of, as to which she testified on the trial.</p> <p>Ground 8 of the motion for a new trial, to which paragraph 3 of the decision refers, gives an extract from the charge to the jury, in which, among other things, the court said: “She alleges that as a result of the injuries she has undergone pain and suffering. You are to take the testimony on that question; take it all and consider what amount, if any, she is entitled to recover for her pain and suffering.” The movant complains that this last sentence “ amounted to and was an expression of opinion that the plaintiff had made out a case of pain and suffering on the evidence.”</p> <p>Grounds 9 and 10 of the motion for a new trial relate to instructions as to negligence, including the definitions of ordinary and extraordinary diligence and ordinary and slight neglect as contained in the Civil Code (1910), §§ 3471, 3472'; the movant contending that these instructions were erroneous and prejudicial because the suit was not based on negligence, but was based upon alleged intentional and wilful assault and battery, cursing, and abuse by movant’s employee. In ground 11 it is complained that the court charged: “ In every tort there may be aggravating circumstances, either in the act or the intention, and in that event the jury may give additional damages, either to deter the wrongdoer from repeating the trespass, or as compensation for the wounded feelings of the plaintiff.” (Civil Code, § 4503.) It is alleged that this instruction was erroneous “for the reason there was no evidence in the case to authorize such charge.”</p>

<p>Indictment for robbery; from Gwinnett superior court — Judge Cobb. March 2, 1920.</p> <p>Application for certiorari was denied by the Supreme Court.</p> <p>The testimony of Webb as to the proposal of the defendant New to the witness to join in robbing the bank at Lawrenceville, and their trip to Lawrenceville for that purpose on the day preceding the alleged robbery at Duluth, was admitted over the objection that it related to a different transaction from the one charged in the indictment, and was irrelevant, immaterial, and prejudicial to the defendant. In the motion for a new trial it is contended that “ any testimony as to the proposed robbery of the bank at Lawrenceville . . was irrelevant and immaterial to the single issue on the trial then pending, . . and was further illegal and prejudicial to the defendant, in that it tended to establish defendant’s guilt in an entirely different transaction, and to establish defendant’s bad character when he had not put his character in issue; and.such testimony was inadmissible for the further reason that even if the defendant had put his character in issue, the State was not permitted to prove his bad character by specific instances of other crimes participated in by him.”</p> <p>The 5th division of the decision relates to the following ground of the motion for a new trial: “ 9. Because, as movant insists, the court erred, in ruling upon the following objection in the hearing of the jury, in expressing or intimating an opinion upon the testimony, in violation of § 4863, and in assuming to be proved as a fact that the witness Bernard actually saw a car-top at Miller’s garage, when the defendant’s plea of guilty put in issue every relevant fact that could be proved by the prosecution in behalf of the State. Defendant’s counsel objected to the evidence of the witness Bernard that the fender of a car had dents through it, upon the ground that such testimony was not in rebuttal and had been held inadmissible by the court because the witness’s identification of the car was dependent upon what Miller had told him, when the court ruled as follows: ‘ I have ruled out everything the witness has said that appears from his own statement is not of his own knowledge. I will allow the description of the car to remain in. I also allow to remain in the fact that he saw a car-top at Miller’s. It is for the jury to say whether this car he is talking about is the car in question.’ Movant insists that the court’s statement that it was a fact that the witness saw a car-top at Miller’s was error and amounted to an expression of opinion that the testimony of the witness Bernard, to the effect that he had seen a car-top at Miller’s, was true, thereby unduly enhancing the credit of the witness Bernard before the jury.”</p>

Indictment for larceny of hogs; from Coffee superior court — Judge Summerall. June 11, 1920.

<p>Indictment for burglary; from Wayne superior court' — Judge Summerall. May 18, 1920.</p>

<p>Conviction of manslaughter; from Oconee superior court- — • Judge Cobb, June 8, 1920.</p>

<p>1. Under the particular facts of the case, the very brief involuntary absence of the defendant during his trial does not require a new trial.</p> <p>2. None of the other special grounds of the motion for a new trial shows cause for a reversal of the judgment below.</p>

<p>Indictment for larceny of hog; from- Liberty superior court — Judge Sheppard. December 20, 1919.</p>

<p>The question as to the jurisdiction of the State court to try and punish, one accused of crime is not raised under the usual general grounds of a motion for a new trial, complaining that the verdict is contrary to evidence, contrary to law, and without evidence to support it. And! such a question will not be considered when made for the first time in this court.</p>

<p>Complaint; from city court of Yaldosta — Judge Cranford. June 11, 1920.</p>

Action for damages; from city court of Atlanta — Judge Reid. June 3, 1920.

<p>Trover; from Chattooga superior court — ■ Judge Wright. May 4, 1920.</p> <p>1. In a bail-trover proceeding by the Overland Eome Company against J. S. Fowler the original petition alleged: Defendant is in possession of certain property to which petitioner claims title, the said property being an automobile, described; defendant refuses to deliver said property to petitioner or pay him the profits thereof; its yearly value is $600, or $50 per month. It was prayed that the petitioner have judgment as provided by law, and that process issue, etc. By amendment it was alleged that the value of the property at the time of the conversion and of the filing of the petition was $965. The defendant demurred to the petition generally and specially, the demurrer was overruled, and to this ruling the defendant excepted. The grounds of demurrer relied upon in the brief of his counsel in this court are, that there is no allegation as to value, upon which a money verdict could be based, and that the petition does not set out the manner and form in which the defendant obtained possession of the automobile, so that the defendant might have the benefit of demurring or pleading more specifically in luis defense; and it is contended that the petition should contain “ a specific and definite averment as to demand being made for the property.”</p> <p>2. From the evidence it appears that in May, 1917, the defendant bought from the plaintiff tire automobile in question, giving another automobile in part payment and giving for the remainder of the purchase-price his promissory notes for $500 and interest, in which title to the automobile in question was retained in the plaintiff until payment of the notes. The defendant was mustered into the army of the United States in September, 1917, and the notes became due in November, 1917, while he was in the military service at Camp Wheeler, Ga.; and he was in the service at that place when this proceeding was begun and the automobile seized thereunder in June, 1918. He contended that under section 301 of the act of Congress approved March 8,1918, fixing the civil rights of persons in the military service, this proceeding was unauthorized, but that if such a proceeding was authorized, the plaintiff would be limited to a recovery of the property, after accounting for the payment made on it, and could not recover the balance of the purchase-price. It was testified that no demand for the automobile was made upon the defendant before this proceeding was begun. In his answer to the suit he “ admits that he refuses to deliver said automobile to petitioner, . . for the reason that petitioner is not entitled to possession of the same.” The court directed a verdict against the defendant for the amount of his notes to the plaintiff; and error is assigned thereon upon the grounds, among others, that there was no demand for the property prior to the filing of the suit, and that there was no proof that the plaintiff tendered hack to the defendant the car traded to the plaintiff as a part of the purchase-price, or offered to account to Mm for its value, less a reasonable rental.</p>

June 30, 1920. On June 24, 1920,. Mrs. Eula B. Ward instituted a bail-trover proceeding against P. H. Ward to recover a diamond ring alleged to be of the value of $800. The defendant- failed to deliver the ring or to give the statutory bond for the forthcoming of the property, and was imprisoned.

Complaint; from city court of Savannah — Judge Freeman. June 16, 1920. This was, according to the theory of the plaintiff in error, a suit on an account stated for $6,084. The defendant demurred to the petition generally and specially. The court sustained the demurrer and dismissed the suit, and the plaintiff excepted.

<p>Certiorari; from Fulton superior court- — Judge Pendleton. May 27, 1920.</p>

<p>Complaint; from city court of Atlanta — Judge Reid. May 26, 1920.</p>

<p>Garnishment.; from city court of Bainbridge — Judge Spooner. June 21, 1920.</p>

<p>Complaint; from Colquitt superior court — Judge Thomas. June 19, 1920.</p> <p>Eeed Oil Company sued Harrison upon an account including sums alleged to have been overdrawn by the defendant on his salary and commissions while working for the plaintiff. The defendant in his answer denied the alleged indebtedness and pleaded that the plaintiff owed him $425.95 as commissions above his salary. The case was referred to an auditor, who found in favor of the defendant and against the plaintiff, in the sum of $425.95, besides interest; and, there being no exceptions to this finding, the court rendered judgment accordingly. Ho motion for a new trial was filed at the term of the trial, but at a subsequent term the plaintiff filed an extraordinary motion for a new trial, based on alleged newly discovered evidence that $425.95, which represented an apparent balance in the defendant’s favor on the plaintiff’s books, was charged back to him at his request, the defendant stating at the time that he had not earned it, because he had failed to turn in sufficient business as a salesman to offset his salary and traveling expenses. Affidavits of a former bookkeeper and a former vice-president of the plaintiff to this effect were submitted in support of the motion, with an affidavit of the president of the plaintiff that the “ subject-matter ” contained in .these affidavits was unknown to him at or prior to the time of the trial, and until, a subsequent date stated, and that through the exercise of all means at his command he had no way of knowing of the existence of this evidence at the time of the trial; also an affidavit of one of the firm of attorneys representing the plaintiff, that neither he nor the other member of the firm had any knowledge of the matters set out in the above-mentioned affidavits, until a given date after the trial. On the hearing of the motion the movant introduced also the record of the case, including the evidence adduced at the hearing before the auditor. The court overruled the motion, and the movant excepted.</p>

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

<p>Action for damages; from 'Floyd superior court — Judge Wrigbt. June 25, 1920.</p>

<p>Action on contract; from Coffee superior court — Judge Summerall. July 15, 1920.</p>

<p>Indictment for burglary; from Jasper superior court — Judge Park. September 1, 1920.</p>

<p>Accusation of simple larceny; from city court of Albany — Judge Clayton Jones. September 3, 1920.</p>

<p>Indictment for larceny of automobile; from Cherokee superior court — Judge Blair. September 24, 1920.</p>

<p>Accusation of possessing liquor; from city court of Monroe ■ — ■ Judge Stone. September 22, 1920.</p> <p>Coley Knight was convicted under an accusation which charged him with having had possession of alcoholic and spirituous liquors, etc. The grounds of his motion for a new trial, besides the usual general grounds, were as follows: “ 4. Because the court committed error in refusing to allow defendant to prove, by the witnesses present and offered, that prior to the time of the alleged crime the main witness, J. J. Ammons, had not only been drinking, but had been drunk. Defendant claims that this evidence was admissible, under the circumstances of this case, as shedding light on the question of the habits of said witness, his animus in the case, and his inclination to drink or try to drink from the jug in question.” “ 5. Because the court refused to rule out of evidence all the discoveries made by the said officer Ammons after the arrest was made, the evidence showing that the arrest was made without any warrant, this act, as defendant claims, without any authority of law. The discovery claimed by the witness to be that the jug contained corn whisky, etc.”</p> <p>J. J. Ammons, a policeman, testified, that in the defendant’s automobile, in which the defendant was sitting, he saw a glass gallon jug in a pasteboard box, the jug sticking up above the box, and, after getting into the car, he pulled the stopper out of the jug and smelled of it, and it smelled like corn whisky; that when he went to the car he saw at once that the jug contained corn whisky; he could tell corn whisky by sight through a glass jar or jug. ' The witness further testified: “ I put the stopper back after smelling of it, and told Mr. Knight that I would have to carry him to town for having whisky. . . He drove towards High Shoals instead of town. . . In a patch of weeds Mr. Knight stopped the car. . . I stepped out of the car, and when Mr. Knight stepped out he grabbed the jug and slammed it against the ear and broke it. . . He said that he would rather be in hell than have me carry him to town with a gallon of liquor. . . I did not have any warrant for his arrest. I did not have any warrant to search his car for liquors. . . I was not drunk and was not drinking. I drink sometimes, take a drink occasionally.” The defendant, in his statement at the trial, said that the glass jug mentioned by Ammons did not contain whisky, but contained denatured alcohol, and that he broke the jug because Ammons was trying to take a drink out of it, insisting that it was corn whisky, although he had told Ammons that it was denatured alcohol and poison; that Ammons had been drinking, and when he was that way nothing could turn him. The defendant contradicted the testimony as to what he had said about “ a gallon of liquor.” The chief of police testified that the defendant “ admitted in the presence of his father that Jim Ammons had caught him, with-a gallon of corn liquor,” and said that he broke the jug because “he would rather be in hell than brought up town with a gallon of liquor.” This was denied in the testimony of the defendant’s father. There was other contradictory testimony.</p>

<p>Certiorari; from Glynn superior court — Judge Highsmith. October 1, 1920.</p>

<p>Under the facts of this case, service of a summons issued by the clerk of the municipal court of Atlanta, directed to the defendant and served on another person, more than eighteen years old, who lived in the house in which the defendant resided, with an entry of service as provided by the statute, was good although the person served did not actually live in the rooms occupied by the defendant, but occupied rooms across the hall from those in which the defendant lived.</p>

<p>Indictment for larceny of automobile; from Gordon superior court ■ — ■ Judge Tarver. April 21, 1920.</p> <p>Application for certiorari was denied by the Supreme Court.</p> <p>The indictment charged W. II. Bird with larceny of an automobile of G. S. King on September 9, 1919. The defendant stated that the automobile found in his possession and claimed by King was bought by himself from T. L. Perkins in the State of Tennessee. He offered, as evidence relating to his purchase of the car, a certificate of the clerk of a county court of Tennessee, which states “that T. L. Perkins has transferred a Ford car to Wr. H. Bird, of Fort Payne, Ala., No. 37723, Motor No. 2,562,718, this car registered and. transferred 9 and first 1919 this the 5th day of November, 1919.” The number given in the indictment as the “motor number” of the Ford car alleged to have been stolen is 2,256,243. The certificate was accompanied with authenticating certificates. In the motion for a new trial it is contended, that the court erred in ruling out these certificates, “because [movant’s] statement shows that he had purchased the car found in his possession (and claimed by the State to be the car stolen) in the State of Tennessee, from T. L. Perkins, who under the law of Tennessee registered its transfer on the 1st day of September, 1919, in the office of John A. Hall, Clerk, and that said registration showed the motor number to be 2,562,718. Movant contends that it was error to rule out each one of said exhibits, and hurtful to movant, because the motor number of the car alleged to have been stolen was 2,256,243, and the date of the alleged theft was September 9th, 1919.”</p> <p>Denial of the right of argument as to the admissibility of this certificate is complained of in the next ground of the motion for a new trial. It is there stated that when the certificates mentioned above “ were submitted to counsel for the State, the same were objected to and the court asked that the same be handed to him that he might read them. The court refused to admit the three certificates. When counsel for the defendant asked that he be heard from and permitted to read authorities, and made the request that for this purpose the jury be sent out of the court.-room if the court so desired, the court declined to send the jury out in order to argue on the question of the admissibility of either and all of the said three certificates. Movant contends that he was denied his constitutional right, under the constitution of .the State of Georgia, to have the full benefit of counsel as provided under the bill of rights, section 6361, Volume 1, Code of Georgia, 1910. Movant further contends that the fact that said three certificates were offered in evidence inutile presence of the jury, and that the court privately read them and rejected them, without argument from movant's attorney, tended to prejudice movant’s case by impressing the jury that movant was making an effort to introduce illegal and improper evidence.”</p> <p>The alleged newly discovered evidence was contained in an affidavit of W. H. Fox to the effect that G. S. King, the prosecutor, bought from the affiant on October 30, 1917, a Ford car of the motor number stated in the indictment, and that it was of the model of 1917, and not of 1918, as alleged in the indictment.</p> <p>Interruption of the defendant by the court while the defendant was making his statement at the trial is complained of in another ground of the motion for a new trial. From this ground it appears that the defendant in his statement said that when he was seeking evidence in his behalf a certain friend at Chattanooga asked, “Where did you buy the car?”' lie answered, “In the little county of Janies over here,” and the friend said “ We have a law in Tennessee requiring anybody that sells a car . . to go to the County Clerk;” whereupon' the trial judge said, “Just a moment. The defendant can not in his statement, unless he shows by his statement he is qualified so to do, testify or state as to what the laws of Tennessee are. It is true the defendant, in his statement, has wide latitude as to what he will say with reference to the charge against him, but that latitude does not go to the extent of introducing irrelevant matter, or matter which could not be proven by him as a witness if he could testify. Ifor this reason 1 will not allow the defendant to state what the law of Tennessee is.” The defendant’s counsel then said to the court that he did not wish the defendant to state that, and that what the defendant said was just explanatory of how he got a certificate. Counsel then asked the defendant to state how he came by the paper. The defendant (as appears from the brief of the evidence) proceeded with his statement and said, “ I went, or had a party go for me, and obtained these papers, showing how I came in possession of the car.” It is contended that the interruption mentioned above was error because the defendant’s only means of laying a foundation for the introduction of the certificates mentioned in the first special ground of the motion for a new trial was to make a full statement of the manner in which he obtained them, and the interruption deprived him of the right to explain fully and clearly how he obtained them.</p>

<p>Action for damages; from Dooly superior court — Judge Gower. May 4, 1920.</p> <p>The action was for injury to a mule struck by an automobile which it was alleged was being operated negligently and at a reckless rate of speed, running from 40 to 75 miles per hour. The verdict was for the plaintiff. In the motion for a new trial it is alleged that the court erred in charging the jury as follows: “ The issue for you in the case is the determination of whether or not the defendant was negligent in the operation of his automobile, and, second, what the value of the mule was. Of course, if you should determine that there was no negligence shown on the part of the defendant in the operation of his car, your deliberations would stop there and you would find in favor of the defendant; but if you decide the first question affirmatively, that is to say, that there was negligence shown on the part of the defendant, and you further decide that this negligence was the proximate cause of his injury (if you find that any injury has been shown), you would address yourself then to a consideration of what the value of the mule was, and the kind and extent of the injury, if any.” It is alleged that the court erred in this because it “ stated only two issues before the jury, that is, as to the negligent operation of the automobile and as to the value of mule,” and because the plaintiff’s petition alleged that the automobile was being operated at a rate of from 40 to 75 miles per hour, when there was no evidence substantiating the allegation.</p> <p>It is alleged that the court erred in charging as follows: “People who operate automobiles oil the public roads of this State are charged with the duty and responsibility of exercising ordinary care and diligence and observation on particular portions of the road on which they travel; for instance; upon approaching any dangerous place in the road, in approaching a deep cut or a railroad crossing, or any place where there is likelihood or probability of collision, or any danger, the operators of those cars are charged with the responsibility of operating them in such a manner as to keep them under proper control and management for the protection .of the lives of other people and the property of other people.” It is alleged that this part of the charge was not authorized by the evidence, because it does not appear that there was any dangerous place, or deep cut, or railroad crossing, or any place where there was a likelihood, of collision or any danger, and that “said charge was an intimation of opinion by the court in instructing the jury that the defendant ivas charged to observe things and laws- which were not applicable to the case.” It is alleged that the court erred in charging: “If you find that it was an accident, as I have detailed to you, that is to say, that there ivas no evidence of negligence on the part of the defendant in this transaction, you will find in favor of the defendant.” This was complained of as instructing the jury that if there was evidence of negligence of the defendant he would be liable, and that if any evidence had been introduced as to such negligence 'the injury could not have been an accident; also because the court thereby expressed an opinion that evidence had been introduced as to negligence of the defendant in the operation of the automobile, and because the court intimated an opinion that if there was any evidence of negligence on the part of the defendant he would be responsible whether the jury believed the evidence as introduced or not.</p>

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

<p>Action for damages; from Eloyd superior court — Judge Wright. May 15; 1930.</p> <p>J. W. Duke brought suit against the Rome Railway and Light Company, alleging that when he was twenty-nine years old, and while in the discharge of his duties as an employee of said company, his foot and ankle were broken, and that his injury was permanent; that it greatly marred the physical appearance of his foot; that he would have to go through life limping; that on account of this he suffered great “mortification and embarassment;” that “ finally he was compelled to have his ankle rebroken by a specialist and a part of the bone removed, ” that even after this he had to have his right ankle cut open and another operation performed thereon, and that “he has constantly suffered the most intense pain from said injury, and will so suffer so long as he lives.” lie alleged that while he was descending an electric-light “pole by means of sticking said spurs into said pole, and when he had reached a point on said pole about twelve feet from the ground, the surface and that part of said pole into which he had stuck said spur for the purpose of holding his weight and going down said pole, because of the sappy, doty, and decayed condition thereof, gave way and permitted said spurs to cut through said sappy, doty, and decayed part thereof, and caused petitioner to fall violently to the ground on his right foot, a distance of twelve feet,” resulting in the injury described. The petition alleged that before the injury he was capable of earning $60 per month, and but for injury would have attained an earning capacity of $100 a month, that because of the injury his ability to earn money bad been decreased by one half; that he had been “put to a doctor’s bill in the sum of $200,” and had “lost labor in the sum of $500.00 or other large sum.” He prayed that he recover the sum of $15,000. The trial resulted in a verdict for the plaintiff for $7,500. The defendant’s motion for a new trial was overruled, and the movant excepted.</p>

<p>1. A cliarge on the law of voluntary manslaughter was authorized by evidence.</p> <p>2. Newly discovered evidence which was cumulative and impeaching and would not likely produce a different verdict on another trial did not require a new trial.</p>

<p>]. The prosecuting attorney’s reply to counsel for the defendant, in argument to the jury, as to the failure to introduce proof of bad character of the defendant, was not improper.</p> <p>2. A verdict finding the defendant “ guilty of shooting at another ” was not a nullity, where he was indicted for assault with intent to murder by shooting at another.</p> <p>(a) The question whether the verdict was a nullity could not properly be made a ground of a motion for a new trial.</p> <p>3. In view of the note of the trial judge as to the purpose to which the testimony objected to was limited, and upon an examination of the record, it does not appear that he erred in admitting the testimony.</p>

<p>A conviction of simple larceny was authorized by the evidence, from which it appeared that at the instance and direction of the defendant another person stole money from a trunk and gave it to the defendant, who was present aiding and abetting the act, and who on receiving the money secreted it and privately carried it away.</p> <p>A principal in the second degree may be convicted under an indictment charging him as principal in the first degree.</p>

<p>Accusation of abandonment of child; from city court of Bainbridge— Judge Spooner. June 25, 1920.</p>

<p>Accusation of sale of liquor; from city court of Hinesville — Judge W. C. Hodges. June 23, 1920.</p>

<p>A conviction of the offense of possessing intoxicating liquors was authorized by the evidence; and, the verdict having been approved by the trial judge, this court is without jurisdiction to set it aside.</p>

<p>Indictment for manufacture of intoxicating liquor; from ,Macon superior court — Judge Littlejohn. June 24, 1920.</p>

<p>Accusation of misdemeanor; city court of Macon — Judge Guerry. July 2, 1920.</p> <p>Hart was convicted on an accusation which charged him with having operated an automobile upon a public highway while under the influence of intoxicating liquors. The first special ground of his motion for a new trial is that the court charged the jury that “in contemplation of law an operator of a motor-vehicle on the. public highway is under the influence of intoxicating liquor when he is so affected by intoxicating liquor as to make it less safe for him to operate such vehicle than it would be if he was not affected by such intoxicating liquor.” It is alleged that this was error because the charge did not follow the statute, and because it was a question for the jury whether the accused was under the influence of intoxicating liquor, and not a matter for definition by the court, and the charge was misleading and ambiguous. A note of the trial judge to this ground is as follows: “ The court charged as it did in view of the testimony of the witnesses in connection with the question of the alleged condition of defendant, and the contentions of the State and the defendant on that question, the State contending that for the defendant to be ¿aider the influence of whisky was sufficient, and the defendant that the law meant that he must be drunk. ”</p> <p>Evidence that whisky was in the automobile driven by the defendant was admitted over the objection that such testimony was irrelevant and immaterial, because he was not charged with violation of the prohibition law. This is complained of in the motion for a new trial. The court charged the jury: “ This defendant is not on trial and is not accused before you of having possession of intoxicating liquor. That circumstance, if it was proved to be true, went before you, not so that you could find him guilty of having whisky, but as a circumstance that you might consider on the question as to whether he was under the influence of intoxicating liquor or not. ” It is contended that “ all the above charge was error, and the court should not have charged on possession of intoxicating liquor, but should have ruled out the same, as the defendant was not on trial for that offense.”</p>

<p>Accusation of gaming; from city court of Waycross — Judge Crawley. July 17, 1920.</p>

<p>Indictment for burglary; from Rockdale superior court — Judge Hutcheson. June 25, 1920.</p>

<p>Indictment for manufacture of liquor, etc.; from Colquitt superior court — Judge Thomas. July 29, 1920.</p> <p>The indictment charged Boatwright with “the offense of felony, for that the said accused, on the 20th day of June in the year 1920, . . did distill, manufacture, and make, and did unlawfully have, possess, and control, alcoholic, spirituous, vinous, malted, and mixed liquors and other beverages, a part of which was alcoholic, contrary to the laws, ” etc.</p>

<p>1. Where, in a trial for murder, the theory of manslaughter is raised by the defendant’s statement alone, a charge upon the law of manslaughter is proper. Cain v. State, 7 Ga. App. 24 (65 S. E. 1069), and cases cited.</p> <p>(a) Applying the foregoing principle to the facts of the instant case, it cannot be said, as a matter of law, that the charge upon voluntary manslaughter was unauthorized.</p> <p>2. The same facts that authorized the charge upon voluntary manslaughter authorized a conviction of that offense.</p>

<p>Indictment for forgery; from Bibb superior court — Judge Mathews. July 28, 1920.</p> <p>As to the presumption of innocence, the court charged the jury that it “ arises in favor of the defendant at the outset, and that presumption remains with him until his guilt is shown beyond a reasonable doubt. ” In the first special ground of the motion fox a new trial this instruction is complained of “for the reason that it does not state the correct rule of law in regard to the burden of proof; ” that the burden is upon the State to make out its case beyond a reasonable doubt, and that the court did not so charge. The court charged that “guilt must be shown to a reasonable and moral certainty, and, if any reasonable doubt remains in the mind of the jury as to the guilt of the accused, it is the duty of the jury to give the defendant the benefit of the doubt and acquit him.” Other instructions of the same nature were given.</p> <p>On the ground that “there was no confession proven in the case and therefore it was error for the court to charge on confessions at all, ” it is alleged that the court erred in charging that “there is evidence in this case of some confession made by the defendant; that is, evidence which, if you believe it to have been made, you may consider in the light of the law I now give you in charge. ” This was followed by instructions in the language of the Penal Code (1910), § 1031, and additional instructions; to the effect that confessions must be received with great caution, and must be corroborated.</p> <p>On the ground that the evidence did not authorize the giving of such an instruction, it is alleged that the court erred in charging, “ Now, you will look to the evidence in this case and determine whether or not it is proven beyond a reasonable doubt that a forgery was committed, that is, the forgeries set out in the indictment, — first, the forgery of the check, that is, the fraudulent alteration of the cheek, as set out in the indictment, and, in the second place, whether there was a fraudulent alteration and forging of the identification order, which is the second charge. ” In the remaining special grounds of the motion for a new trial the same objection was made to instructions as to the form of the verdict.</p>

<p>Accusation of larceny; from city court of Sylvester — Judge Monk. August 17, 1920.</p>

<p>Motion for a new trial; from city court of Jefferson — July 22, 1920.</p>

Accusation of cheating and swindling; from city court of Tifton — Judge Price. September 6, 1920.

<p>Approval with such qualifications as were made by the trial judge as to the truth of the special ground of the motion for a new trial in this case is not a sufficient approval.</p> <p>Where a remark of counsel in argument to the jury, alleged to be improper, is the basis of a ground of a motion for a new trial, the ground should aver that the remark was not referable to any evidence introduced on the trial.</p> <p>The prosecuting attorney’s statement in his argument to the jury, complained of as being improper and prejudicial to the accused, introduced no fact, but was merely a forcible and possibly an extravagant method of impressing upon the jury the gravity of the offense and their duty in relation to it.</p> <p>There was evidence to support the verdict of guilty, and, the trial judge having approved the verdict, this court can not interfere with it.</p>

<p>Indictment for discharging pistol on Sunday; from city court of Alma — Judge Luke. September 3, 1920.</p> <p>Will Taylor was convicted under an indictment charging that on April 18, 1920, he. wilfully fired off and discharged a pistol on Sunday, not in defense of person or property. The State’s witness testified that on Sundajp April 18, 1920, when he and his wife were riding about 150 yards behind a buggy occupied by Will Taylor and Will’s brother, Sam Taylor, on a public road, Will Taylor reached his hand out from the side of the buggy as far as he could, holding a pistol, and discharged the pistol, and that no other person was near where the pistol was discharged. The defendant, in his statement at the trial, denied that he discharged or had a pistol at the time mentioned by the witness. There was no further evidence. The motion for a new trial was based on alleged insufficiency of evidence and on alleged newly discovered evidence of Sam Taylor that he, and not the defendant, discharged the pistol.</p>

<p>Accusation of cheating and swindling; from city court of Alma — Judge Luke. September 3, 1920.</p> <p>The accusation was based on the “labor-contract” law (Penal Code of 1910, §§ 715, 716), and charged in substance that Eichard Lloyd, with intent not to perform the service contracted for, procured from J. M. Harrington $2 by contracting to begin cutting wood for him on the following Monday or Tuesday for $2 per cord and to continue cutting until repayment of the $2 advanced, and that without sufficient cause he failed to perform the service or return the money. Harrington testified: “ I hired Eichard Lloyd to cut one cord of stove-wood for me on what is known as the Moye place, near Big Hurricane Creek, in Bacon county, Georgia, and he was to begin cutting the stove-wood on Monday or Tuesday following the date of the contract, this being on Saturday and in Bacon county. He was to cut the wood for $2 per cord, and he was to work continuously thereat until the amount of $2 was repaid in the cutting of the wood, and under this promise and representation on the 15th day of May, 1920, I gave him the $2, and he did not appear at all on Monday or Tuesday, as he promised, to cut the wood, and I did not see him until several weeks thereafter, and when I saw him I asked him why he did not appear and cut the wood as he promised, and he then told me his little brother was sick and he carried him to the hospital on Monday or Tuesday, this being the time he was to cut the wood for me; and he has never cut the wood or repaid the money with interest up until this date. Eichard Lloyd had cut wood for me before, and I paid him for the work he did for me. . . He told me that he wanted to borrow $2 from me, and he would cut me a cord of stove-wood on Monday or Tuesday if I would let him have the $2. . . He told me that the reason he did not cut the wood at the time he promised was because his brother was sick and he had to carry him to Waycross to the hospital. I do not know whether his brother was sick or not, and he may have been for all I know.” Another witness for the State testified that the defendant was apparently in good health and able to work when he got the $2 from Harrington and during the next week and several subsequent weeks; and on cross-examination the witness said: “ I know that his little brother was sick, and Kiehard told me that he had to carry him to the hospital at Waycross for treatment the week after the 15th day of May, 1920. ” There was no additional witness, and the defendant made no statement at the trial.</p> <p>cited: Penal Code (1910), §§ 715, 716; Ga. App. Reports, 13/10(2); Id. 586(1); 15/642; 16/216; 17/752; 18/700, 702.</p>

<p>A verdict supported by any evidence and approved by the trial judge can not be set aside by this court because of alleged insufficiency of evidence.</p> <p>A conviction of larceny was authorized by the evidence.</p>

<p>Indictment for larceny from house; from Whitfield superior court — Judge Tarver. October 7, 1920.</p>

<p>1. Under all tlie facts of the case this court cannot as matter of law say that the judge erred in refusing to give more time to the respondent to make answer and demurrer to the rule.</p> <p>2. Where a court is in session and a witness has been sworn and is leaving the court-house, he is entitled to the same protection as when going into the court-house to be sworn, and should not be abused, harassed, browbeaten, or insulted because of his testimony. This protection surrounds the witness in every part of the place set apart for the holding of the court, including the court-house yard.</p>

<p>1. Tlie exceptions pendente lite referred to in the main bill of exceptions cannot be considered by this court, because in each case error was assigned upon the judgment complained of in the exceptions pendente lite and not upon tlie exceptions pendente lite themselves. Ponder v. State, 25 Ga. App. 768 (105 S. E. 318), and cases cited.</p> <p>2. Where an execution has been levied and a forthcoming bond given under § 6041 of the Civil Code of 1910, and the bond has been breached by failure to deliver at the time and place of sale .the property levied upon, it is no defense to a suit on the bond that at the time and place of sale the sheriff had in his hands executions which were “ superior liens ” to that execution and were sufficient in amount to have taken the entire fund arising from the sale if the property had been sold.</p> <p>3. Granting that the charge of which complaint is made in the 3d ground of the amendment to the motion for a new trial is erroneous, it was not harmful to plaintiffs, as, by agreement of counsel, the jury were instructed to specify in their verdict upon which plea they based their verdict, and they found in favor of the plaintiffs on the plea about which the court was instructing them when the excerpt from the charge embodied in this ground of the motion was given. Moreover, in Rowland v. Page, 4 Ga. App. 269(1) (61 S. E. 148), this court held that “Section 5436 of the Civil Code [Civil Code of 1910, § 6041] prescribes the condition of a forthcoming bond authorized to be taken by the levying officer, and the officer has no right to vary the condition by any agreement with the defendant in execution. Any such agreement is void and without effect as to the right of the plaintiff in execution, and can not be set up as a defense to a suit on the bond, brought by the officer, for the use of the plaintiff in execution. King v. Oastlen, 91 Ga. 488 (18 S. E. 313).”</p> <p>4. It was not error for the court to charge that “ in order for the plaintiff to recover in this case, he must show that there has been a breach of the bond, and that the plaintiff has been damaged by such breach.” See Redwine v. Street, 18 Ga. App. 77 (3) (89 S. E. 163); Grace v. Finleyson, 10 Ga. App. 480(1) (73 S. E. 869).</p> <p>5. There was no error harmful to the defendants in any of the rulings on the pleadings, complained of in their exceptions pendente lite and brought to this court by cross-bill of exceptions.</p>

<p>Action for damages; from Fulton superior court — Judge Pendleton. May 7, 1920.</p> <p>While employed in a railroad yard as a watchman or special officer, and while walking across tracks at night in the darkness of the unlighted yard, for the purpose of inspecting cars, the plaintiff, according to the allegations of his petition, was struck and injured by a car which had been “kicked” by a switch-engine. The case came to this court on exceptions to the sustaining of a demurrer and the dismissal of the petition, and to the refusal of the court to allow further time for amendment of the petition.</p> <p>The action was against the Western & Atlantic Railroad Company and the Federal director-general of railroads. In the first count it was alleged that the plaintiff and the defendant were engaged in interstate commerce, and that the suit was brought under the employer’s liability act of Congress approved April 22, 1908, and the amendments thereto (U. S. Comp. St. §§ 8657-8865); that the injury occurred near the City of Atlanta in the State of Georgia, that the car that struck the plaintiff was loaded with freight for a point in the State of Tennessee, and that the train which was being made up on the track where he was struck was a train that carried freight from Atlanta to Nashville, Tennessee. The second count was substantially the same as the first except that there was no reference to interstate commerce or the act of Congress. It was alleged, that the plaintiff, when injured, was about 50 yards east of an overhead bridge; that where the bridge crossed the railroad there was a long track known as the “ lead track, ” from which other tracks branched, the purpose of the lead track being “ to shove cuts of cars in on the other tracks in making up trains thereon, and, as each car or cut of cars was shoved by the engine from the lead track onto one of the tracks which ran out from it, a switchman was supposed to ride said cut of cars which were detached from the engine as the same was kicked or shoved upon said branch track, as aforesaid; ” that when struck by the engine the plaintiff was inspecting the cars and was passing through the yards “ as was his duty; ” that between him and the switch-engine a number of cars were standing on the tracks, and he could not see the engine and could not see “ onto which of said tracks ” it was kicking and shoving cars. In paragraph 9 of each count it was alleged that no light was placed on the car that struck him, and no brakeman or other person was upon the car to control its speed and give warning of its approach; he was not warned of its approach, and at this point the yard was unlighted and very dark, and it was extremely difficult to see.</p> <p>Negligence was alleged in each count as follows: (Paragraph 14) Defendant was negligent in running said car over plaintiff. (15) Said car had been negligently pushed and kicked by the switch-engine and turned in upon the track; it was going through the yards without any person on it; it was negligently allowed to go through the yard without any light upon it; it was negligence on the part of the defendant’s crew, in switching the car, to kick and shove it as aforesaid, especially through a dark, unlighted yard and without any lights or person on it. (16) The defendant failed to furnish the plaintiff a safe place at which to work, and negligently failed to adopt any proper rules for the regulation and switching of cars in its yard; the defendant was negligent in failing to light the yard and in allowing the car to run through the yard with no light and no person thereon. By amendment of paragraph 9 it was alleged that the presence of a brakeman and light upon the car was required in the exercise of ordinary care by the defendant, and also by the customs and practices of the defendant, prevailing in the defendant’s yard at that time and place, said customs and practices being known to and relied on by plaintiff.</p> <p>Except as to “paragraph 3 of the demurrer, and paragraph 11 of the demurrer, not insisted upon, ” “ all the grounds of demurrer ” as amended were sustained. Paragraph 3 of the demurrer objected to allegations of paragraph 9 of the petition, as to absence of light on the car, or of any person to control it and give warning of its approach, the demurrant contending that there was no legal obligation to the plaintiff to place a light or a person on the car to give such warning. Paragraph 11 of the demurrer (not insisted upon) related to allegations as to spinal injury. The allegation that “ a switchman was supposed to ride said cut of cars, ” etc., was demurred to, on the ground that it was “immaterial and irrelevant, and defendants are not to be bound by a hypothesis. ” The words “ as was his duty ” were demurred to, as stating a conclusion. The general allegation of negligence, in paragraph 14, was demurred to as being a conclusion, and as being too general. The allegation in paragraph 15, as to negligence in pushing and kicking the car, was demurred to on the ground that "the particular acts of negligence should be averred, and not a conclusion made by the pleader. ” The additional allegations in paragraph 15, as to negligence in not having a light or a person on the car, etc., were demurred to, on the ground that it did not appear that the defendant was under any legal obligation to the plaintiff to have a person or light on the car. The allegation in paragraph 16, as to failure to furnish a safe place at which to work, was demurred to on the grounds that "the particular facts should be averred, showing how and wherein a safe place was not furnished, ” and that a mere conclusion was stated. The allegation in paragraph 16 as to failure to adopt proper rules was demurred to on the grounds that it was a mere conclusion, and that "the proper rules to be adopted should be averred, and how and wherein defendants failed to make proper rules. ” The allegation in paragraph 16 as to absence of a light or person on the car was demurred to, on the grounds that it was a mere conclusion and that, in the work in which the petition showed the plaintiff was engaged, the defendants were under no obligation to him " to do the things complained of. ”' The allegation in the first count, that the plaintiff and the defendant were engaged in interstate commerce, was demurred to, on the ground that "the particular facts should be averred showing the character and description of the work done by plaintiff, as well as the particular work being engaged in by defendants at the time plaintiff received his injuries. ” The allegation in the amendment, as to custom and practice, was demurred to, on the ground that the allegation “is too vague, general, and indefinite, and is unsupported by any special allegation of fact as to what said custom and practices were, how long they had existed, or how long they had been known to plaintiff; ” and that “said customs and practices could not excuse plaintiff from exercising ordinary care for his own safety in an unlighted railroad yard in which he was an employee as a special officer or watchman, ”</p>

<p>Action on contract; from DeKalb superior court- — Judge Hutcheson. December 3, 1919.</p> <p>Breach of two contracts by refusal to deliver cotton to the purchaser, the Taylor Cotton Company, was alleged in the petition, and the company sought to recover from the seller, J. M. Floyd, the alleged difference between the market price of the cotton at the time specified for delivery and the contract price. The defendant pleaded that the alleged contracts were void and unenforceable, that no actual delivery of cotton was contemplated and that they were gaming contracts. He pleaded also that they were obtained by fraud of the plaintiff’s agent in representing that the price of cotton would go down and he (the defendant) would make money by selling; that he was uninformed and inexperienced in such matters, and that this was known to the plaintiff’s agent, who was experienced in the business of buying and selling cotton. As to the second contract these defenses were abandoned on the trial. The verdict, as directed by the court, was against the defendant, as to both contracts. The exceptions are to the directing of the verdict and to certain rulings as to admissibility of evidence.</p> <p>The first contract was in writing and was dated August 7, 1916. It stated that it was between “Taylor Cotton Company, cotton buyers, of Macon, Ga., and J. M. Floyd, of Sedan, Ga., ” and was signed in duplicate by J. M. Floyd and also as follows: “ Taylor Cotton Company, per pro J. W. Marshall. ” The contract was as follows: “That the Tajdor Cotton Company has bought from said J. M. Floyd and said J. M. Floyd has sold to Taylor Cotton Company 50,000 pounds of lint cotton upon a basis of Atlanta 4’s, to be packed in 100 merchantable bales, and to be delivered between the 1st and 20th days of October, 1916, at Eedan, Ga., f. o. b. cars, at and for the price of 13-3/8 cents per pound of Atlanta 4’s. Other grades not below middling may be delivered at the market differences in value on the day of delivery. Said cotton to be paid for when delivered, one dollar ($1.00) upon the purchase price of said cotton having been paid to said J. M. Floyd by said Taylor Cotton Company upon the execution and receipt of this contract, the receipt hereof being hereby acknowledged. ”</p> <p>From the evidence it appeared that during the year 1916 the Taylor Cotton Company had, in Atlanta, Ga., a branch office under the management of J. W. Marshall, and its business was the buying and selling of cotton for both immediate and future delivery. It had contracts for the sale of cotton, to be delivered at various places in the United States and in Europe.' It sold to mills in Georgia and South Carolina, and to eastern mills. The contract of the defendant, dated August 7, 1916, was made with Marshall, and the cash consideration of one dollar was paid to the defendant, and in September the second contract for the sale and future delivery of cotton by the defendant to the plaintiff was made with Marshall. The price was higher in the second contract, and 78 of the 100 bales contracted for in that contract were delivered by the defendant. An extension of time under the first contract was requested by the defendant before the time for delivery, but was refused, and in a letter dated October 17, 1916, he was informed of this refusal and was requested to deliver .the cotton, the letter stating that the cotton was needed, and the writer hoped that the defendant would be able to ship it when due, or to make a cash settlement. An agent of the plaintiff went, on October 20, 1916, to Eedan, where the defendant lived and the cotton was to be delivered, the agent’s purpose being to receive the cotton and pay for it, but the defendant was in Atlanta, and the cotton was never delivered.</p> <p>The defendant testified, that he was engaged in general merchandising and bought cotton, and had been in the cotton business for nine or ten years; that J. W. Marshall had worked with a certain firm engaged in the cotton business with which he (the defendant) liad been trading and with which a Mr. Baker, referred to as “old man Baker,” was connected; that when he (the defendant) sold cotton to Baker, Baker would always' “ take care of” him if the market went against him; this was their arrangement, and Marshall knew of this arrangement. As to the sale in question in this case he testified: “ Mr. Marshall worked for the Taylor Cotton Company and he came up there and wanted me to sell him 100 bales of cotton; he said he would treat me as the old man did, and take care of me like old man Baker did, and for me to go ahead and sell him the cotton and he would see that I did not lose anything. . He said he would see that I made money out of it; he said, ‘ Go ahead and sell us cotton, and I will guarantee that you make money out of it.’ He said he would treat me like old man Baker did, and I relied on him. He said he- had the basis on which to make the statements and he knew that cotton had to go down and I was obliged to make money out of it. I relied on his representations and acted on them . . in selling him this first hundred bales . . Mr. Marshall said he would treat me like old man Baker did, and I didn’t have to deliver unless I wanted to. We sold by margins and settled for the margins — for the difference. . . He knew that the old man would let me out whenever I wanted to get out, and I would not have to fill out what I sold unless I wanted to. I always made money out of my trades with Mr. Baker. . . Mr. Marshall said, c I will take care of you and I wont let you lose anything. ’ He said he would take care of me on the margins and we would settle on the differences. The margins were the difference in the selling and market price. ” “ I had the same understanding with reference to whether there would be an actual delivery of cotton as I had with Mr. Baker. ”</p> <p>The defendant’s testimony as to the understanding between himself and Marshall was contradicted by Marshall’s testimony. Marshall testified that he never knew of Mr. Baker letting the defendant' out of any contract, and never promised to let the defendant out of any contract that he made. It was testified that the plaintiff “ did not deal in futures.”</p> <p>■ Over the objection that a conclusion was stated by the witness, Marshall was allowed to testify that he was “the agent of the Taylor Cotton Company in Atlanta in 1916. ” Error was assigned on the admission of his testimony. Another witness testified, without objection, that Marshall was “the manager of the Taylor Cotton Company in Atlanta ” at the time of the signing of the contract in question.</p> <p>Objection was interposed to the introduction of what purported to be a .copy of a letter of the plaintiff “ per J. W. Marshall, ” to the defendant, dated September 29, 1916, under which was written, “ Accepted, ” followed by the defendant’s name, confirming the second purchase mentioned above. This copy was introduced with depositions of J. W. Marshall, in which he stated that he had written and sent the letter and in due course of mail received back the copy, and that the signature of the defendant on it was not a copy, but “the original.” It was objected to upon the ground that it was “ a copy and could not be identified by J. W. Marshall in his depositions, and the defendant had not been served with notice to produce any such letter.” It was further contended that this letter should not be considered, because the second transaction was eliminated from the base, the defendant conceding that “he made the last trade on his own judgment and was ready and willing to pay the balance. ” It was admitted that the defendant had been served with a notice to produce at a preceding term of the court and from term to term thereafter “ all letters, memoranda, and correspondence with reference to the matter sued upon; ” and he failed to produce the original of the letter, because he did not have it. Error was assigned on the overruling of the objections stated.</p> <p>Objection to the introduction of the contract of August 7, 1916, and to Marshall’s testimony in regard to it, was made on the ground that the plaintiff was a corporation and had not signed it by any officer, agent, or manager, it being signed merely: “ Taylor Cotton Company, per pro J. W. Marshall. ” The overruling of this objection was alleged to be error.</p>

<p>Inspection and acceptance of a concrete mixer by an employee of a company which had ordered a “ one-yard” concrete mixer did not bind the company where the mixer so inspected was not a one-yard mixer but was merely a half-yard or three-quarters-yard mixer, and where the employee had no authority to accept the machine but his authority was limited to inspection and he had been sent to inspect as to its mechanical condition only, and did not attempt or know how to determine its capacity.</p> <p>The court did not err in directing a verdict in favor of the defendant.</p>

<p>Levy and claim; from city court of Swainsboro — Judge Kirkland. June 28, 1920.</p>

<p>Action for damages; from Chatham superior court — Judge Meldrim. May 7, 1920.</p> <p>Application for certiorari was denied by the Supreme Court.</p> <p>The base of a derrick kicked up and fell upon the plaintiff while it was being hoisted from the ground by himself and workmen of whom he was foreman, and he sued the corporation by which they were employed, alleging that he was thus injured by reason of the act of his superior officer in requiring two employees to leave the base of the derrick where the plaintiff had directed them to stand for the purpose of holding it down so that it might not kick up and injure him or other employees. The petition contained allegations in substance as follows: The derrick was a frame made of timbers, was 10 or 12 feet wide at the base and about 32 feet high, and at the top was about 2-1/2 feet wide. It had been lying prone upon the ground, and it was the purpose of the plaintiff and the gang of which he was foreman, consisting of 12 or 15 men, under the supervision of his and their foreman and superior officer, Monk, to raise the derrick to an upright position. After two of the men in his gang had taken their places at the corners of the base of the derrick as ordered by him, to prevent it from kicking up, as stated above>; the plaintiff and the other employees began to raise it to an upright position and had it -raised to an angle of about 45 degrees from the ground, and when it was at that angle the base kicked up and fell upon him. His superior officer, Monk, without informing him and without his knowledge, had ordered away from the base of the derrick to another point about the derrick the two men mentioned above, whose duty it was to obey the instructions of Monk, and they had obeyed that order without the knowledge of the plaintiff. It was alleged that this act of Monk was negligent, improper, and dangerous, and that the plaintiff’s injuries were due entirely to the fault of the defendant because of this negligent act, and because the defendant, through its foreman, was not performing its work in a skilful, workmanlike, and proper manner, and because the defendant did not furnish to the plaintiff a safe and suitable place in which to perform his labor, the place having been rendered unsafe .because of the conduct of the said foreman. It was alleged that the plaintiff was exercising all ordinary and reasonable care and diligence, and was free from fault. By amendment it was alleged: At the time the derrick fell the plaintiff was within about 15 feet of the base, facing the base. He could not see that the men had been removed from the base, because of the cross-pieces of the derrick, composed of timbers, 2 inches thick and 10 inches wide, and because of the X-braces between each of the said cross-pieces. These cross-pieces were in the derrick every 5 feet, and the X-braces were between each pair of cross-pieces; all of which obstructed his vision. He was also prevented from seeing that the men had been removed because of the number of other men working about the derrick. Upon being removed by Monk, one of the men walked away from the base northwardly, about 40 feet to a guy line (the purpose thereof being unknown to the plaintiff), and the other man walked southward and got under the side of the derrick behind the plaintiff. The plaintiff’s duties required that he should assist manually in instructing and demonstrating how the men should “'walk up ” the derrick. Specific allegations were made as to damages.</p> <p>The defendant demurred to the original petition and to the petition as amended, on the ground that no cause of action was set forth. The allegation that the plaintiff’s duties required that he should assist manually, etc., was demurred to as stating a mere conclusion; other allegations were demurred to upon this ground, and there were various other special grounds of demurrer.</p> <p>A motion for a mistrial and for a continuance was made by the defendant on the ground of surprise by an amendment of the petition, relating to the identity of the two men alleged to have been stationed at the base of the derrick. A prior amendment,' in response to special demurrer, was made on November 25, 1918, in which the plaintiff alleged that the two men were colored, but he did not know and had no means of ascertaining their names, and that the names were in the possession of the defendant. At the trial, on July 22, 1919, it was testified by a witness for the plaintiff that the two men were white and one of them was named Stanley. The defendant objected to this testimony, because of variance between allegation and proof. The plaintiff amended the petition by alleging that the two men were white. The defendant then made the motion stated above, “ stating in his place the substance of code-section 5714, ” and stating that the defendant’s employees, who, at the time of the injury in question, were engaged in the construction of a large shipbuilding plant for the United States government, were numerous and had been rapidly brought together from widely separated parts of the county to meet a temporary emergency, and afterwards separated, going to places unknown to the defendant, but it was probable that these men could be found before the next term of court; that until this last amendment was made, the presence of these men was unnecessary for the defense, as the defendant could have made out its defense by refuting the allegation that two colored men were stationed at the base of the derrick and were removed. The court postponed the case for a day, and offered to postpone it five days; the motion was insisted upon, and the court overruled it, stating that the defendant had “ nine months to ascertain a fact that they could have learned from the foreman Monk or their records in a few minutes, ” and that if a continuance until the next term were granted, a delay of six months would result; and that it was not averred that the defendant did not know of the whereabouts of the two men, and it did not appear that any diligence had been exercised to discover them.</p> <p>The amount of the verdict for the plaintiff — $25,410 — was alleged to be excessive. From the evidence it appeared that he was a carpenter, 43 years of age, earning $5.50 a day as wages, at the time of receiving the injuries complained of, about two years before the time of the trial. His back and spine were injured, the fourth lumbar vertebra was fractured, and the lumbar curve practically destroyed; he could not bend the small of his back, it was what is known as a “ poker back, ” and was as stiff as a poker; his sexual capacity was destroyed; he suffered a misplacement of the vertebra which produced pressure upon the termination of the spinal cord, and it was testified that this pressure would tend to cause paralysis. Physicians testified that his disability as a laboring man was total at the time of the trial, and that he was permanently injured, but might in the course of time regain from 25 to 35 per cent, of his former capacity. He was in a hospital for about a month and had to use crutches about six months, and afterwards had to use a cane in walking. He testified that he was unable to labor; that the only thing he could do was “something sitting down,” and he did not “know of such a job; ” he could not do carpenter work at all; he had little strength and had not earned anything since he was injured; he had suffered great pain from his injuries. There was proof as to physician’s bills.</p>

<p>Indictment for larceny of cotton; from Hancock superior court — Judge Park. June 1, 1920.</p>

<p>1. Approval with material qualifications by the trial judge is not a sufficient approval of special grounds of a motion for a new trial.</p> <p>2. It was not error to charge the jury that if the plaintiff showed that her injuries were caused by the running of the locomotive and cars of the defendant railroad company, the burden would be upon the company to establish, “ by a preponderance of the evidence, ” that its employees in charge of the train were exercising all ordinary care and diligence.</p> <p>3. A charge to the effect that on proof of injury to the plaintiff by the running of the' defendant railroad company’s locomotive or cars a presumption arises that the defendant was at fault “in each and every one of the ways alleged in the plaintiff’s petition ” was not error for any reason assigned, although the petition may have contained inconsistent allegations.</p> <p>4. The instructions to the jury as to the statutory duties of railroad companies at crossings were not erroneous for any reason assigned.</p> <p>5. Negligence of the driver of the automobile was not imputable to the plaintiff, who was riding in it as a guest.</p> <p>6. A verdict for $25,000 was not excessive for personal injuries to a woman who when injured was 21 years old, with a life-expectancy of more than 40 years and earning $50 a month as a school-teacher, where the injuries were serious and permanent, caused her great and long-continued pain and suffering, and necessitated numerous serious surgical operations.</p> <p>(a) Judicial notice will be taken that the normal value of the dollar had greatly decreased at the time of the rendition of the verdict (October, 1919) and when the motion for a new trial was overruled (May, 1920).</p>

Conviction of embezzlement; from Campbell superior court — Judge Hutcheson. July 24, 1920. The instructions as to positive and negative testimony, to which the ruling in paragraph 2 of the decision refers, consisted of the provisions of section 5751 of the Civil Code (1910), with an added instruction as to credibility.

<p>In any criminal ease where a bill of exceptions has been certified and filed, and the judge in the exercise of his discretion determines that the case is not a bailable one, he should grant a supersedeas of the judgment as a matter of right.</p>

<p>Action for damages; from Fulton superior court —Judge George L. Bell. February 4, 1919.</p>

<p>Action ' for damages; from Bartow superior court — Judge Tarver.. July 8, 1918.</p>

<p>Motion for new trial; from city court of Atlanta — Judge Eeid. March 18, 1919.</p>

<p>Action on contract; from Eulton superior court — Judge Pendleton. February 11, 1919.</p>

<p>Affidavit of illegality; from Effingham superior court — Judge Lovett. November 20, 1919.</p>

<p>Complaint; from Eulton superior court- — Judge Ellis. October 25, 1919.</p> <p>Aslan Bearo sued Dora Deitch for $1,140 and interest, alleging that he lent to her $1,200, and received back $60. In her answer she admitted that she borrowed $200 from him and that he.was entitled to recover $140, but denied any further indebtedness. On the trial the plaintiff testified that he lent to the defendant $1,200, of which he delivered $200 to her and $1,000 to her husband in accordance with her direction, she promising that. she would mortgage certain property to him as security, that afterwards she refused to give the mortgage and refused to repay more than the $60 credited to her; that before he lent the $1,000 she came to him and told him that her husband had some beer in the depot and he had to take the beer out, and she wanted $1,000; he knew this $1,000 was going to the husband to help the husband out in business, and she told him to let her husband have the money, and the next day the husband went with him to the bank where the money was on deposit and got it. The defendant testified that she borrowed from the defendant $200,. but denied that she borrowed $1,000 or asked the plaintiff to let her have $1,000. The defendant’s husband, in his testimony, denied that he got any money from the plaintiff. The plaintiff’s wife testified that she heard the defendant apply to the plaintiff for a loan of $1,000 and offer to give a mortgage to secure it. On the trial it was contended on the part of the defendant that if she did borrow the $1,000, the plaintiff’s evidence showed that it was for payment of a debt of her husband, and she could not be held liable for it. The verdict was for the plaintiff, and the defendant made a motion for a new trial, on the grounds that the verdict was contrary to law, evidence, etc.</p>

<p>Action on contract, from city court .of Brunswick — Judge Krauss. .December 24, 1919....</p> <p>J. A. Hinson sued the Glynn Ice Company for breach of contract, alleging.: that the plaintiff, while engaged in the meat business in the City of Brunswick, Georgia, entered into a contract with the defendant company to furnish on demand all the ice required for the purpose of preserving his fresh meats, and, on a certain day during the life of. the contract, received a shipment .of fresh meat and called upon the defendant for ice, and the defendant failed to deliver the ice according to contract; to his damage in. a stated sum,, for which he.sued. A verdict was rendered for the defendant. The trial judge granted a new trial to the plaintiff, and the defendant excepted, contending that the evidence demanded the verdict rendered. On the trial the plaintiff testified . to the material facts alleged in his petition. It was testified that on the day referred to above he had on hand. 4,400 pounds of meat, 3,000 pounds in the refrigerator, and the rest in the house; that the capacity of the refrigerator was 3,000 pounds of meat, and that about 900 pounds of meat was condemned by the inspector; that if the temperature in the refrigerator is allowed to get too high, meat will spoil quicker in it than out of it; that the meat not in the refrigerator was fresh meat, bought locally, and that such meat is not put into the refrigerator until it is fully cooled and dried out; and that if the ice had been furnished in accordance with the contract, no meat would have been lost.</p>

<p>Levy and claim; from city court of Hall county — Judge Wheeler. January 14, 1920.</p>

<p>Complaint; from city court of Newnan — Judge Post. December 18, 1919.</p>

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

<p>Action on contract; from city court of Floyd county — Judge Nunnally. December 17, 1920.</p> <p>Ausburn sued the Alabama Cooperage Company upon an alleged oral contract for the delivery of 100 cords of cooperage timber at $7.50 per cord, delivery to be made during "the months of January, February, and March, 1919. The plaintiff testified that after he had delivered part of the timber the defendant’s agent told him to “hold up shipping for a few days; my people wrote me not to take any more wood at present, ” and later told him “ he was not taking any more wood at all. ” According to the plaintiff’s testimony, the last conversation was more than two months before the expiration of the contract. On being recalled by the defendant the plaintiff testified: “ The last timo I saw him [the agent for the defendant], which was the last of December or first of January, he said that his people wrote him not to take any more wood at present, he did not know what they were going to do. ” The suit was filed January 15, 1919.</p>

<p>Complaint; from'Crisp superior court- — Judge Gower. January 31, 1920.</p>

<p>Complaint; from Calhoun superior court- — Judge Harrell. December 2, 1919.</p>

<p>Action on contract; from city court of Carrollton — Judge Beall. February 12, 1920.</p> <p>' The demurrer was on the ground that no cause of action was set out; tlie' judgment on the demurrer was as follows: “ It appearing to the court that this is a suit on a unilateral contract, and, according to’ the decisions of -our court, is not enforceable, therefore the general demurrer is hereby sustained and the suit dismissed. ” In the brief of counsel for the defendant it is contended that -if the court erred in treating the contract as unilateral, the judgment dismissing the petition was nevertheless right because the suit is based on the breach of a written contract, and the plaintiff does not sue for damages growing out of the breach, which in this instance “ would be $10 an acre on one of the places and $15 an acre on the other place,” but attempts to recover in assumpsit a sum alleged to be the reasonable value of his services. On the part of the plaintiff it was contended that while he would be entitled to recover the difference between the price named in his contract with the defendant and the price obtained, this would not prevent a recovery of the lower amount sued for.</p> <p>The petition alleges the execution of the contract set out, and that the plaintiff, W. S. Cobb, subsequently undertook to sell the property described in the contract, and submitted the property to various prospective purchasers, with a view to selling it according to the terms of the contract; that among those to whom he undertook to sell the property was G. D. Browning, who, after careful inspection, agreed to buy for $75 per acre the tract of land described in the said written instrument as the Flowers place; that Browning was able, ready, and willing to purchase the property for $75 per acre cash, and these facts were communicated by plaintiff to defendant; that the defendant refused to comply with the terms of the said written instrument and refused to sell the said property to Browning; that a reasonable commission for the sale of said property would have been and is 5% on the entire purchase-price, and amounts, on the above-described land, to $663.75. Similar allegations are made as to the tract of land described as the Golden place, which it is alleged the plaintiff undertook to sell to E. D. Smith and I. C. Touchstone and they agreed to buy for $70 per acre. A reasonable commission for the sale of this latter tract, it is,'alleged, amounts to $920.50. The petition concludes with a prayer "for judgment for the two amounts above named, to wit: $663.75 and $920.50.” The suit was filed within the time specified in the contract as the limit of the option.</p> <p>"cited: Civil Code (1910) § 4230, 4241; 117 Ga. 1001(2); 115 Ga. 866, 868; 66 Ga. 179; 104 Ga. 157; 130 Ga. 265, 269.</p> <p>cited: 130 Ga. 265(1); 17 Ga..App. 677; 8 Ga. 71; 39 Ga. 81.</p>

<p>Trover; from DeKalb superior court — Judge Hutcheson. January 21, 1920.</p>

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

<p>1. In a summary proceeding by a landlord- to dispossess a tenant as one holding over beyond the expiration of his term, it is no defense that the landlord’s title to the premises expired before the institution of the dispossessory proceeding, and that the tenant is. now holding under the landlord’s successor in title, where it does not appear that after the creation of the tenancy the landlord parted with his title, or that the alleged successor to his title is in privity with it. See, in this connection, 1 Taylor, Landlord and Tenant (9th ed.), § 180; Raines v. Hindman, 136 Ga. 450, 453 (71 S. E. 738, 28 L. R. A. (N. S.) 863, Ann. Cas. 1912 C, 347) ; Civil Code (1910), § 3698.</p> <p>2 In such a proceeding it was error to inquire into the nature of the landlord’s title; and a verdict for the defendant was contrary to law.</p>

<p>Action on contract; from city court of LaGrange —- Judge Duke Davis. April 14, 1920.</p>

<p>Complaint; from Gwinnett superior court — Judge Cobb. April 16, 1930.</p>

<p>Appeal; from Berrieu superior court — Judge Dickerson. April 13, .1930.</p>

<p>1. “ Where both parties to a cause consent that the court direct a verdict, though each moves that it be directed in his own favor, neither party can complain that the court erred in directing a verdict, though the losing party may except upon the ground that the verdict directed is erroneous.” Mims v. Johnson, 8 Ga. App. 850(1) (70 S. E. 139).</p> <p>2. “ Any verbal or written representations of facts by the assured to induce the acceptance of the risk, if material, must be true or the policy is void.” Civil Code (1910), § 2480. The questions presented for determination in such a case are: (1) Was the representation false? (2) Was it made in reference to a matter material to the risk? Mutual Life Ins. Go. v. Bolton, 22 Ga. App. 566, 569 (96 S. E. 442). The trial judge, by consent of parties, having passed on these questions, and the effect of his judgment being that any misrepresentation of fact made by the insured related only to immaterial matters and did not constitute misstatements affecting the risk, and there being sufficient evidence to support such finding, the verdict will not be disturbed.</p> <p>3. The act of 1914 “for the regulation and control of benefit societies,” etc. (Ga. L. 1914, p. 100, sec. 4, Park’s Code, § 2564(t)), does not change the law so as to render a certificate of insurance issued by a fraternal benefit society null and void on account of untrue but immaterial statements contained in the application; and this is the rule although the statements contained in the application are warranted to be true, with the further proviso that if any of them be untrue the policy shall become null and void.</p>

<p>Certiorari; from Fulton superior court — Judge George L. Bell. April 2, 1920.</p>

<p>Certiorari; from Fulton superior court — Judge George L. Bell. April 2, 1920.</p>

<p>Levy and claim; from city court of Yaldosta — Judge Cranford. May 10, 1920.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Trover; from Dooly superior court — Judge Gower. April 19, 1920.</p>

<p>Validation of school bonds; from Worth superior court — Judge Eve. April 15, 1920.</p>

<p>Action for damages; from Wilkinson superior court — Judge Park. April 10, 1920.</p>

<p>Complaint; from Crisp superior court — Judge Gower. April 17, 1920.</p>

<p>Trover; from city court of Albany — Judge Clayton Jones. May 17, 1920.</p>

<p>Action for damages; from city court of Sandersville■ — ■ Judge Jordan. July 28, 1920.</p> <p>The demurrer was on the grounds, that no cause of action was stated in the petition'; that no specific acts of negligence, but mere conclusions of the pleader, were stated in paragraphs 3 and 7; that the allegations in paragraph 4 as to damage and repairs were too general, and that paragraph 6 failed to allege how the defendant was reckless or careless in running his car or in what respects the plaintiff’s car was damaged. Paragraph 3 of the petition follows an allegation of indebtedness in the sum of $250, and alleges that “ said indebtedness arises by reason of said defendant having recklessly run his Dodge Roadster in such negligent and careless manner as to collide with plaintiff’s Ford five-passenger car on ” a described public crossing. Paragraph 4 alleges: “As a result of said collision, plaintiffs car was badly damaged, which necessitated repairs at the garage, of an expenditure of $250. ” The particulars of the damage, and an itemized statement of the repairs and of the expense of making them, are given in paragraphs added by amendment. The collision of the defendant’s car and the plaintiff’s car at a public crossing is described in paragraph 5, which alleges that at the time of the collision the plaintiff’s car was moving at a speed of not more than 10 or 12 miles, while the defendant’s car was traveling “ at a recklessly high rate of speed of not' less than 40 miles an hour,” and that the defendant continued across the public crossing at this high rate of speed, and did not blow any horn or give any other signal of his approach, and did not check his car as he approached the crossing. Paragraph 6 alleges, that, “ due entirely to the reckless and careless running of defendant’s car by the defendant, the defendant’s car collided with plaintiff’s car, wrecking and damaging plaintiff’s car to the extent of $250.00 as aforesaid.” Paragraph 7 alleges, that “the running of defendant’s car by the defendant at such a high rate of speed at said public crossing, and without checking his car as he approached said crossing, and without giving any signal or alarm of his approach of said crossing, was the grossest kind of negligence, and that said negligence of the defendant was entirely responsible for said accident, as plaintiff’s car was driven carefully and with due diligence as required by law on said public crossing, and said accident was unavoidable so far as the plaintiff is concerned, and was due entirely to wanton and negligent conduct of the defendant. ” It is prayed that the plaintiff recover “ for the damages which she has suffered by reason of the negligent acts of the defendant as aforesaid. ”</p>

Complaint; from city court of Macon — Judge Guerry. July 24, 1920.

Certiorari; from Bibb superior court — Judge Mathews. July-13, 1920.

<p>Certiorari; from Macon superior court — -Judge Littlejohn. July 6, 1920.</p>

<p>Appeal; from Camclen superior court — Judge Graham presiding. July 21, 1920.</p> <p>On the grounds (1) that the suit “was commenced by petition to the justice’s court and not by a summons with a copy of plaintiff’s demand attached thereto as required by law, ” and (2) that the pleadings showed that the suit was an action ex delicto and not within the jurisdiction of the justice’s court, and therefore not within the jurisdiction of the superior court on appeal, a demurrer was filed in the superior court, to which the case had been appealed. The demurrer was overruled, and error was assigned on this ruling. From the record it appears that the suit was commenced by a summons directing the defendant Walker D. Hines, as Director-General of Railroads, to appear at the justice’s court “ to answer the complaint of S. G. Mizell, in a plea of debt by action for damages to personal property for eighty-five and 44/100 dollars, a copy of which is hereto attached. ” Attached to the summons was a petition to the justice’s court, as follows:</p> <p>“The petition of S. G. Mizell shows as follows: That Walker D. Hines is Director-General of Railroads of the United States, and that as such Director-General he operates and controls the Seaboard 'Air-Line Railway Company, a railroad corporation which has a line of track and an agent and office for the transaction of business, and operates trains in and through said State, county, and militia district.</p> <p>“ Said Walker D. Hines, as Director-General aforesaid, has injured and damaged your petitioner in the sum of $85.44, arising and issuing out of the following state of facts:</p> <p>“ On July 31st, 1918, your petitioner delivered to said Seaboard Air-Line Railway Company at Colesburg, Ga., in said State and county, seven hundred and twelve pounds of deer tongue, which 'was consigned to S. B. Penick & Co., Asheville, N. C., and which said Seaboard Air-Line Railway Company thereby undertook to safely deliver. Said deer tongue was of the value of 12(* per pound, and at the time of the delivery of same to said Seaboard Air-Line Railway Company, your petitioner was and has continued to be and still is the true and lawful owner thereof.</p> <p>“ Your petitioner further shows that notwithstanding the delivery of said deer tongue to said Seaboard Air-Line Railway Company, and its consequent agreement to safely deliver same to the consignee, the said Seaboard Air-Line Railway Company has failed to deliver the said 713 pounds of deer' tongue, to the loss and damage -of your petitioner in the sum first above named.</p> <p>“ Your petitioner is a resident of the district in which this suit is brought, and same is thus brought in compliance with General Order No. 18 of the Director-General of Railroads.</p> <p>“ This action is brought against the initial carrier under the provisions of the Carmack amendment to the Hepburn act, regulating interstate commerce.</p> <p>“Your petitioner shows that he is unable to attach a copy of the bill of lading for the above-stated shipment, for the reason that when said shipment was delivered to said Seaboard Air-Line Railway Company at Colesburg, its agent failed and has never issued a bill of lading therefor, and, although called on by your petitioner to do so, yet has refused to do so, in violation of the aforementioned Carmack and Cummins amendments to the act regulating interstate commerce.</p> <p>“ Wherefore he prays the judgment of the court accordingly. ”</p>

<p>Action for false imprisonment; from city court of Savannah— Judge Freeman. July 27, 1920.</p>

Complaint; from city court of Atlanta — Judge Eeid. October 25, 1919.

<p>Action for damages; from city court of Wajcross — Judge Crawley. July 23, 1919.</p>

<p>1. The description, of the automobile was sufficient in an indictment alleging that the accused “ did knowingly buy, steal, receive, conceal, and have in his possession a Ford touring model automobile of the value of $580.00 and the property of ” a named person, “ from which the motor number — the same being a mark of identification' — had been removed and altered for the purpose of concealment and misrepresenting the identity of said automobile.”</p> <p>(a) In an indictment for the offense here charged (G-a. L. 19.18, p. 264) the description of the property need not be as particular as in cases of simple larceny. ■</p> <p>2. The evidence against the accused is not altogether satisfactory, but this court can not hold that the verdict was unauthorized. There was no error that requires a new trial.</p>

<p>Complaint; from Effingham superior court — Judge Sheppard. December 9, 1919.</p>

<p>Action for damages; from city court of Bainbridge- — ■ Judge Spooner. March 22, 1920.</p>

<p>Certiorari; from Floyd superior court- — ■ Judge Wright. January 31, 1920.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Action for damages; from city court of Floyd county — ¿Tudge Wright presiding. March 2, 1920.</p> <p>Application for certiorari was denied by the Supreme Court.</p> <p>An automobile of O. C. Lam was destroyed by fire while stored and awaiting repairs in the garage of Hight Accessory Place, a corporation engaged in the business of repairing automobiles and employed by the owner to repair this automobile. He sued the corporation for damages in a sum alleged to be the value of the automobile, alleging that the defendant was negligent in that the fire caught from a vulcanizer operated by electricity and situated too close to an elevator shaft which carried and drew the fire from the first floor to the second floor, on which the automobile was situated, and in that employees of the defendant went off, leaving in the vulcanizer, when the current was on it, an automobile tube which they had placed there to be repaired and which was highly inflammable, and which, while they were away, caught on fire and communicated the fire to inflammable material in the garage, causing the destruction of the plaintiff’s automobile. The verdict was for the plaintiff, the defendant’s motion for a new trial was overruled, and the movant excepted.</p> <p>1. As to the burden of proof the court gave to the jury the following instructions, which are complained of in the first special ground of the motion for a new trial: " The burden, primarily, is upon the plaintiff to establish everything he charges, by a preponderance of the testimony, but in this case, if the plaintiff shows that he had an automobile there, of a certain value, and that this automobile, while in charge of the defendant, was injured, and that he suffered injury thereby, then that would cast the burden upon the defendants of showing that the automobile was injured not by their negligence, and that they used the ordinary care and diligence such as the law required of them to protect this property from injury.” It is contended that this placed upon the defendant a greater burden than the law placed upon it, especially in view of the pleadings and the evidence; that it placed upon the defendant the burden of proving an indefinite negative, i. e. that it was not negligent in any way whatever.</p> <p>2. As to impeachment of witnesses the court charged: “A witness may be impeached by proof,, of contradictory statements previously made. When a witness has been so successfully impeached, if any one has in this ease, you would be authorized to disregard his testimony altogether; but whether one has been so successfully impeached, or, if impeached, whether he has been corroborated or not, or what credit you would give to the testimony of that witness, is all a matter for the jury to determine, under the instructions from the court.” In the motion for a new trial it is contended that this was an incorrect statement as to the law; that under the law the jury would not be authorized to disregard the testimony of a witness whom it was sought to impeach by contradictory statements, unless they should find that he wilfully and knowingly swore falsely, nor unless the contradictory statement was material or relevant to his testimony and the ease; that the court omitted to charge that the witness might be corroborated by circumstances or other unimpeached evidence, or what the effect of such corroboration would be; that the instruction, “ you would be authorized to disregard his testimony altogether,” took from the jury a question of fact that under the law was to be determined by them, and was confusing and calculated to lead t^em to believe that it was their duty to disregard altogether the testimony of any witness who made statements contradictory to his testimony on the stand; and that the charge was especially harmful because the only witness so attacked was Golden Stephens, one of the main witnesses for the defendant.</p> <p>3. Rulings as to testimony, indicated below, were complained of in various grounds of the motion for a new trial.</p> <p>(a) Over the objection that it was a mere conclusion of the witness, the plaintiff was allowed to testify, “ It was a complete car; it was all right in every way.”</p> <p>(5) On objection that the ordinance was the best evidence, the court refused to allow the plaintiff, on cross-examination, to answer the question, “ Don’t you know the garage men are prohibited by city ordinance, and were at that time, from doing any work on' a car out in the street.” The purpose of the question was to show that when the plaintiff took his automobile to the garage he knew that it would have to be taken inside in order to make the repairs, and would therefore be subject to an ordinary risk of fire. It does not appear what the witness would have answered.</p> <p>(c) The question, “How is it [the vulcanizer in question] generally regarded in the automobile business?” was propounded by the defendant’s counsel to Gordon Hight, a witness for the defendant, who in answer to other questions had just testified that he had been studying “ electricity and things of that kind” about fifteen years, and he did not know of any kind of vulcanizer superior to this, as far as safety from fire is concerned or otherwise, and that it “is the best made.” The court, on objection, refused to allow the question, the court saying that the preceding answer “ answers everything about that.”</p> <p>(d) For the purpose of showing a custom to leave the vulcanizer unattended during the process of vulcanizing, Golden Stephens, a witness for the defendant, was asked by counsel for the defendant, “Is it customary to leave those things when you have them in shape?” The court, on objection, directed the witness to “leave out the custom.”</p> <p>(e) The question, “ Is it not true that in a large number of in1 stances it is impossible to find the cause or the origin of those fires ?” was propounded by counsel for the defendant to an insurance -agent who was a witness for the defendant, and the court refused to allow the witness to answer the question.</p> <p>(/) Over the objection of the defendant that the question was incompetent and sought a conclusion of the witness, the court allowed a witness to answer, upon cross-examination, the following question: “ Placing the vulcanizing department of the garage right against the elevator shaft is placing it at the most dangerous point for communication of fire?” The answer does not appear in the ground of the motion for a new trial in which it is alleged the court erred in allowing the answer.</p>

<p>Certiorari; from Cherokee superior court — Judge Blair. April 8, 1920.</p>

<p>1. A mutually binding contract of sale is shown by a writing as follows: “Temple, Ga., August 4, 1919. R. H. Howel, Villa Rica, Ga. I herewith confirm sale to you of 100 bales cotton, basis -fours, nothing below fives, for 'last of November or December delivery, 1919, cotton 35 cents per lb., f. o. b. This contract covers 50,000 lbs. with a five per cent, variance either way. [Signed] C. C. Kinney, R. H. Howel.”</p> <p>2. No tender of the agreed price was, necessary, under the allegations of the plaintiff’s petition, it appearing that before the time fixed for delivery the seller had given notice of his refusal to comply with the contract.</p> <p>3. If the writing in question is ambiguous and uncertain as to acceptance of the offer to sell, parol evidence would be admissible to show such acceptance. It is alleged by the plaintiff that he did accept the offer and so notified the defendant.</p> <p>4. The petition set out a cause of action, and the court erred in dismissing it on demurrer.</p>

<p>Complaint; from city court of Americus — Judge Harper. April 27, 1920.</p>

<p>Action for damages; from city court of Macon — Judge Guerry. May 20, 1920.</p> <p>-Application for certiorari was denied by the Supreme Court.</p>

Certiorari; from Bartow superior court — Judge Tarver. June 19, 1920. The engineer’s testimony as set out in the petition for certiorari is approved ” in the answer of the justice of the peace who tried the ease, “ as being substantially quoted,” except as indicated below.

<p>Certiorari; from Bibb superior court — Judge Mathews. April 28, 1920.</p>

<p>Indictment for forgery; from Irwin superior court — Judge Eve. August 24, 1920.</p>

<p>Accusation of trespass; from city court of Alma — Judge Luke. September 3, 1920.</p> <p>The accusation charged that on May 3, 1920, J. O. Euis unlawfully took and carried away two wagon-loads of shingle block wood from uninclosed lands of J. E. Taylor, to wit, 400 acres, described, without the consent of the owner, the said Taylor. On the trial the only witness was Taylor, who testified, that he owned the wood on the 400 acres described, and that on July 27, 1920, he met the defendant with a load of shingle block wood coming from this land, and that the defendant, when asked where he got the wood, said, “ back up on the shingle pile, ” and that Oscar Boatright had given him. the wood. The witness further testified: “ I saw him before this hauling off another load of this wood. . . I sold the timber on this 400 acres of land to Oscar Boatright to manufacture into shingles, and he hauled the timber to his mill that he put upon this land, and manufactured the timber into shingles. While he was running this sawmill he hauled some timbers off the lands in the possession of defendant, J. O. Euis, and his mother, which lands are claimed by them, and he manufactured some shingles out of these logs that he hauled off this land, and also some shingle block wood. While Boatright was running this sawmill I hauled off some of the shingle block wood. I saw J. O. Euis over there hauling off some of the shingle block wood; that was while the sawmill was in operation by Oscar Boatright. I do not know who owned the mill, but Oscar Boatright was there operating it and in charge of it. After the mill was' moved away was when I saw the defendant with this load of wood. This was three -months or more after Oscar Boatright ceased to run the mill, and after he moved it I saw the defendant moving two loads of the shingle block wood from this land. I heard Oscar Boat-right testify on the preliminary trial of this case that after or about the time he moved his mill the defendant, J. O. Ruis, asked him what he was going to do with the shingle block wood, and he told J. O. Ruis, so he testified, that so far as he, Oscar Boat-right, was concerned, he, J. O. Ruis, could have the shingle block wood. ” A deed dated January 28, 1905, conveying this land to J. R. Taylor, was introduced in evidence. The defendant, in his statement at the trial, said: “When Mr. Boatright was running this sawmill, cutting shingles, my mother and I sold him some timber with the understanding that 'we were to have the shingle blocks from this timber. He hauled our timber over there and cut our timber, and I hauled some of the shingle blocks off while he was cutting the timber, in his presence and in the presence of Mr. Taylor, and about the time that Oscar Boatright left this location and moved off his mill I saw him one day and asked him what he was going to do with his shingle blocks, and he said that I could have them. I hauled off the two loads of shingle blocks, and I continued hauling off the shingle blocks after he left the mill. They were my shingle blocks. I claimed to own them and claim them now. ”</p>

<p>Certiorari; from Habersham superior court- — -Judge J. B. Jones. August 19, 1920.</p> <p>A motion to dismiss the writ of error was made, on the following grounds: (1) No service of a brief has been perfected by the plaintiff in error on the defendant in error. (2) No sufficient assignment of error is made in the bill of exceptions. (3) The judgment complained of as being rendered by the superior court is not specified in the bill of exceptions or called for as a part of the record material to a clear understanding of the errors complained of.</p> <p>The bill of exceptions states that on August 19, 1920, during the August term of the superior court of Habersham county, there came on to be heard before the judge of that court the case of J. K. Hines v. D. C. Porter, “the same being a certiorari to review the judgment of the justice court of -the 977th district G-. M. of said county, in the ease of D. C. Porter against J. K. Hines, the same being the foreclosure of a special lien before M. A. Ivéster, N. P., and J. P. (ex officio) of said district. On the . said hearing on August 19, 1920, counsel for said D. C. Porter moved to dismiss the said certiorari on the ground that it did not affirmatively appear that the certiorari was applied for within 30 days from the rendition of the judgment complained of. On said day the court sustained said motion and dismissed said certiorari, to which ruling J. K. Hines, plaintiff in said certiorari, then and there excepted and now excepts and assigns the same as error, on .the ground that it does affirmatively appear from the application for said certiorari and the papers in said case the same was applied for within 30 days from the rendition of the judgment complained of, it being alleged in the petition for certiorari that it was applied for within 30 days from the rendition of said judgment, and it further appearing that the execution issued upon the foreclosure of the lien sought to be enforced was made returnable to the April term, 1919, of the justice court of the 977th district G. M. of said county, to be held on the 28th day of April, 1919, being the fourth Monday in April, 1919, thus showing that the terms of said justice court were held on the fourth Monday in each month, and it further appearing from the record in said ease that the judgment complained of was rendered at the May term, 1919, of said justice court, being one of the regular monthly terms of said justice court, and which was necessarily held on the fourth Monday in May, 1919, or on May 26, 1919.”</p>

<p>Distraint; from Banks superior court:— Judge Cobb. September 21, 1920.</p>

<p>Action on contract; from city court of Cairo — Judge Eigsby. September 11, 1920.</p>

<p>Accusation of ¿beating and swindling; from city court of Wrigbtsville — Judge Blount. September 27, 1920.</p> <p>W. M. Pullen was convicted upon an accusation charging him with “ the offense of a misdemeanor, cheating and swindling, ” for that on the first day of- January, 1919, he unlawfully failed and refused to deliver to William Wilson, his cropper, the part of the crop belonging to the said cropper, or its value, coming to the said cropper after payment for all advances made to him to make the said crop during the year 1918, to the loss and damage of the said Wilson in the sum of $90.46. The accusation was dated May 6, 1920. On the trial William Wilson testified: “ I worked a crop on halves with W. M. Pullen during the year 1918. . . Mr. Pullen furnished everything except one half of the guano. I furnished the labor and worked and gathered the crop and [furnished ?] one half of the guano, and was to receive one half of the crops. I completed my part of the contract, made and gathered the crops. The first two bales of cotton I picked out I carried off to market and sold them, but I brought back what they brought and turned it over to Mr. Pullen. I do not know how much they brought or how much his half of the money for the' cotton was. All I know is I brought back half of what it brought and turned it over to Mr. Pullen. We have never had any settlement. I never could get him to any settlement. I turned over to' Mr. Pullen six bales of cotton to be shipped to Savannah. We were not offered enough for the cotton, and Mr. Pullen thought we could get more for it, and we shipped it to Savannah. This was about the first week in November, I think. We divided everything else made on the farm all right. I called on him for a settlement before I moved off his place just before Christmas, but he said he could not give me a settlement until the cotton shipped to Savannah was sold and he got returns for it. . . After Christmas, some time "in January, he told me that the cotton in Savannah had been sold. I called on him for a settlement and he told me to come over to Mr. Grant’s where he was boarding, where he claimed his books were, and he would settle. I went there, but he was away. He finally told me to come over to his sawmill and he would bring the books and we would have a settlement. I went over to the sawmill three or four times and he never would have a settlement. I went there one time and he claimed that he did not have time, as his engine was broke and his mill stopped and he had to work on it at the-dinner hour. The other times he had one reason and another why he could not stop and have a settlement with me. At another time he told me to come over to Mr. Grant’s, but I had got tired of running around so much trying to get a settlement. I think he owes me' about $150. I think he owes me that amount for I ought to have had about that much more out of the crop. I can’t read nor write. Mr. Pullen gave me a statement of my account when we shipped the cotton. This is the statement he gave me. I don’t know what is on this statement. I can’t read nor write, but if he says $90.46, then he owes me that amount. . . I didn’t keep any account, nor did any one for me. I don’t know how much my account is, but I know he owes me. . . He ought not to have much charged to me. I got $50 from him at Kite about the time we shipped the cotton. ” The witness testified as to other amounts received by himself, and concluded as follows: “ I don’t know how much the cotton in Savannah brought. I think he said it brought 28-3/4 cents. I don’t know how much my half was, whether it was $413.88 or not. All I know is that he owes me and I could not get a settlement. I worked for him in 1909, but he got all the crop that year, and I know I didn’t owe him anything then. ” Other witnesses testified as to the repeated efforts of Wilson to get a settlement from the defendant. The written statement mentioned by the witness was introduced in evidence, over objection of the defendant. The defendant, in his statement at the trial, denied that be owed anything to Wilson, and said that Wilson owed him a balance of $44.07. The ease came to this court on exceptions to the overruling of the defendant’s motion for a new trial, based on the usual general grounds and on two special grounds.</p> <p>The first special ground of the motion for a new trial was that “ the following material evidence was illegally admitted to the jury by the court over the objection of movant, to wit: f I tlrmlr he owes me about $150. J think he owes me that amount for I ought to have had that much more out of the crop. ” This testimony was objected to upon the ground -that it was merely a conclusion of the witness, without facts upon which to base it.</p> <p>The second special ground contains a copy of the written statement which Wilson testified was a statement of his account, given to him by Pullen when the cotton was shipped. In this ground this statement was followed by the words: “ I can t read and write. I don’t know what’s on this statement. If it says $90.46, then he owes me that. ” It 'is alleged that “ material evidence was illegally admitted, ” as here set out, over the movant’s objections that the statement offered was irrelevant and immaterial; that it was not dated or signed, and that there was nothing in it from which the jury could determine whether the cropper had received his half of the crop or not, or whether he had been damaged or not; and that the statements made by the witness were mere conclusions of the witness, and it was for the jury to determine what the facts showed. The written statement referred to was headed: “ In acct with W. M. P. Cotton weights. ” It contained a column of figures, the first five items of which were amounts running from 451 to 581, under which was the total, 3,211, to which was added the item “ One 100 in Wm. Wilson and Lester 100, ” followed by the total 3311. Under this, and following the words “ cotton 28!*,” were the figures 924. Other items were added, one of which was “cotton seed, ” and at the bottom were two items: “ total in all cotton and seed 45904, ” “ Due Wm. Wilson 9046. ”</p>

<p>Accusation of misdemeanor; from city court oí Zebulon — Judge Dupree. October 2, 1920.</p> <p>The accusation charged that on June 19, 1920, the defendants, George Walker and Herman Walker, had in their possession and on their premises a still and apparatus for the distilling and manufacturing of “ liquors and beverages. ” The case came to this court on exceptions of the overruling of a demurrer to the accusation, and of a motion for a new trial. From the evidence it appears that in June, 1920, a deputy sheriff, with Allen Arnold and W. S. Reviere, went to where the defendants lived, but found no one there. The deputy sheriff testified: “We found out by side of an old smoke-house an old automobile tank, covered up with some old sacks. It looked as if it had been on the fire. It was smoked up, appeared to have been used to boil something in. It was originally an automobile gas-tank. We also found some pieces of pipe there. The pipes were in the house and the old tank was on the outside. By using the things we found there — the old automobile gas-tank and the pipes — whisky could be manufactured. ” It was testified that the defendants came there shortly after the witnesses arrived, and that Georgie Walker first said that he did not know anything about the things found there, but afterwards, according to the recollection of the witness, he said they belonged to Herman, the other defendant. The witnesses destroyed the tank and the pipes. Allen Arnold’s testimony was substantially the same as that of the deputy sheriff, except that Arnold did not say that whisky could be made by the use of the tank and the pipes. There was no further testimony.</p>

Conviction of assault with intent to murder; from Baldwin superior court — Judge Park. September 29, 1920.

<p>Complaint; from city court of Sandersville — Judge Jordan. September 27, 1920.</p> <p>The action was upon promissory notes of The defendant, Mrs. E. A. Joiner, payable to L. D. Paradice, the plaintiff. The defendant pleaded that the notes were executed in settlement of a debt of her husband, for which she was not liable. On the trial she testified to this effect. The plaintiff testified that he sold to the defendant, and not to her husband, the stock of goods for which the notes were given; that the husband offered to sign the notes as principal, with the wife as security, but he declined the offer and refused to sell the goods to the husband, and did not sell them until she had agreed to purchase them ‘and give her individual notes; that in conversations with the husband in regard to the purchase of the goods he dealt with the husband as the wife’s agent. Tax returns of the husband “ as agent ” were introduced in evidence. Tlie verdict was for tbe plaintiff. The defendant’s motion for a new trial was overruled, and she excepted. The special grounds of the motion were as follows:</p> <p>(1) “Because the following material evidence offered by movant was illegally held from the jury against the demand of the movant, to wit: Evidence of Mrs. E. A. Joiner, movant, as follows; ‘When Mr. Lem Sheppard brought me the notes to sign, I told Mr. Sheppard that I was opposed to my husband buying the stock of goods from Mr. Paradice, and that, while I had agreed to sign the notes as security for the purchase price of said stock, I was doing so against my judgment and under protest. ’ ”</p> <p>(2) “ Because the following material evidence offered by the movant was illegally withheld from the jury against the demand of the movant, she offered A. C. Hartley, whose testimony was as follows: ‘When Mr. L. D. Sheppard brought the notes to the store on the morning they were to be executed by Mrs. E. A. Joiner, and Mr. Lem Sheppard started to the house of Mrs. E. A. J oiner, her husband, Mr. Boatman Joiner, told Mr. Lem Sheppard, in the presence of myself and Mr. Paradice, to be sure and not let Mrs. Joiner know but what he, the husband, was going to sign the notes also, as she would refuse to sign the notes if she knew that he, her husband, was not going to sign them.5 The court refused to permit this evidence, as well as the testimony of movant before set forth, on the ground that it was hearsay, and was therefore not admissible, and movant declares that said ruling was erroneous as against the movant. ”</p>

<p>Conviction of manslaughter; from Hall superior court — Judge J. B. Jones. September 24, 1920.</p>

Complaint; from city court of Dublin — Judge Flynt. October 18, 1920. Jim Williams sued H. N. Bussell upon a promissory note for $50 principal, besides interest..

Complaint; from city court of Atlanta — Judge Reid. May 29, 1920. The notes sued on were given to the mother of the defendant’s husband for money borrowed for the purpose of purchasing a boarding-house business, and were signed jointly by him and herself.

<p>Certiorari; from Fulton superior court — r Judge George L. Bell. October 8,, 1920.</p> <p>Wilmot & Cosbji, real-estate agents, with whom E. M. Silverman had listed for sale a house and lot in the city of Atlanta, procured from A. M. Arnold an agreement in writing to purchase the property for $7,500, to be paid as follows: $2,000 cash and $85 per ■month. The terms upon which the property had been listed for sale included also the purchaser’s assumption of a loan of $2,000. and retention of possession of the property by Silverman until September 1; and when the agreement signed by Arnold was presented to Silverman by a salesman employed by the agents, Silver-man refused to sign it. This was stated to Arnold by the salesman, and Arnold agreed orally to purchase the property upon the terms insisted upon by Silverman. The salesman returned to Silverman and informed him of this second agreement. According to the sale-man’s testimony, Silverman told him to “bring the customer to his (Silverman’s) place, and he would have a contract there, and it would all be signed in his office. ” The salesman did not “ get the man up there, ” and Arnold “ never saw Mr. Silverman ■ at all, ” but the salesman attempted to obtain title papers from Silverman for examination, and Silverman would not give them to him. Silverman said He wanted his lawyer to draw up a contract. lie had some disagreement with the salesman as to the amount of the commission on the sale, and finally “ claimed he had the property sold to somebody else. ” Arnold, according to his testimony, was ready, willing, and able to buy and pay for the property on the terms proposed by Silverman and orally agreed to by Arnold.</p> <p>Wilmot & Oosby sued Silverman in the municipal court of Atlanta for a commission on the price of the property, alleging that they had found a customer readjr, able, and willing to buy and who had offered to buy on the terms stipulated by the defendant. The court, at the conclusion of the evidence introduced by the plaintiffs on the trial, granted a nonsuit, on the motion of the defendant, the judge stating that it was his opinion that in order to recover the commission, “there must be a valid and binding contract procured by the real-estate agent. ” A motion for a new trial was overruled, and the plaintiffs sued out certiorari. The facts stated above appear from the answer to the certiorari. The judge of the superior court overruled the certiorari, and the plaintiffs excepted.</p> <p>cited: Civil Code (1910), § 3587; 5 Ga. App. 340; 92 Ga. 508; 129 Ga. 479(1); 12 Ga. App. 512; 11 Ga. App. 156.</p> <p>cited: Civil Code, § 3587; 129 Ga. 479(4); 139 Ga. 294; 11 Ga. App. 156, and cit.; 5 Ga. App.'MO; 15 Ga. App. 735; 12 Ga. App. 329; 73 Ga. 295;</p>

<p>1. Wliere the words “ at 10 o’clock ” on a certain day appear in an order setting a motion for a new trial, a reasonable constructon of these words is that they mean 10 o’clock a. m.; and when the judge who signed the order so construes them, this court will not interfere.</p> <p>2. Where a motion for a new trial by the defendant in a criminal case was set to be heard at a certain time, and the order of the judge provided that the solicitor of the city court should be served with a copy of the rule nisi, and it was also provided by order that the movant have until the hearing to prepare and present for approval a brief of the evidence, and it appeared that at the time fixed for the hearing there had been no service of the rule nisi upon any one representing the State, and no acknowledgment of service thereon, and no brief of ■evidence had been prepared and presented to the judge for approval, it was proper for the court to dismiss the motion for a new trial.</p> <p>3. Where a motion for a new trial was dismissed under the circumstances stated above, and some thirty minutes thereafter an oral motion was made to reinstate the motion, on account of the absence of leading counsel for the movant, who stated that he had been constantly engaged in preparing cases in another court, and that he did not understand that the motion was to be called promptly at 10 o’clock a. m., the judge did not abuse his discretion in overruling the motion to reinstate.</p>

<p>Conviction of assault and battery; from Bacon superior court — Judge Summerall. September 11, 1920.</p>

<p>1. The charge of the court as to the defendant’s statement at the trial was not subject to the exceptions taken.</p> <p>2. The charge on the law of self-defense placed no undue burden on the defendant, where the court charged substantially in the language of the Penal Code (1910), § 70, that if a person kill in self-defense, it must appear to the reasonable satisfaction of the jury that he was acting in self-defense, etc., and charged also that the burden was upon the State to satisfy the minds of the jury to a reasonable and moral certainty, and beyond a reasonable doubt, of all the material allegations in the indictment.</p> <p>3. The charge as to the various forms of verdicts that the jury could render was authorized by the evidence, as to the offense of voluntary manslaughter, of which the accused was convicted, and was not handful to him so far as it related to the grade of homicide of which he was acquitted. It was not cause for a new trial for any reason assigned.</p>

<p>Accusation of larceny; from city court of Floyd county — Judge Nunnally. October 29, 1920. ,</p>

<p>Accusation of larceny; from city court of Metter — Judge Lanier. October 28, 1920.</p>

<p>Certiorari; from Pulaski superior court — Judge Gower presiding. September 24, 1920.</p>

<p>Indictment for robbery; from Fulton superior court — Judge Humphries. October 23, 1920.</p>

<p>Accusation of larceny from house; from city court of Statesboro — Judge Proctor. October 21, 1920.</p>

<p>Accusation of possession of intoxicating liquor; from city court of Waycross — Judge Crawley. October 22, 1920.</p>

<p>That the court charged the jury without charging them on the defense of alibi, until after they had been allowed to go to their room for the purpose of finding a verdict, was not cause for a new trial, where they were recalled and charged on that defense within three minutes after they had left the court-room.</p>

<p>Action for damages; from Madison superior court — Judge W. L. Hodges. November 29; 1919.</p> <p>The court charged the jury: “ I charge you that if the trunk in question was lost or destroyed while in the possession of the Atlanta Terminal Company, and that said Atlanta Terminal Company was acting at the time of such loss or destruction of such trunk as agent for the defendant Seaboard Air-Line Eailroad Company in handling of passengers and baggage, then I charge you that the plaintiff should recover in this case the value of such property lost or destroyed, and that you should so find by your verdict.” It was alleged that this instruction was error because the terminal company was the agent of the Southern Eailway Company as well as of the Seaboard Air-Line Eailway Company in the handling of passengers and baggage, and the defendant contended that the trunk never came into the terminal company’s possession as agent for thé latter company, but was lost by the terminal company as the agent of the former company, and this in struction deprived the defendant of this defense.</p> <p>The court charged: “ On the other hand, if the defendant company has satisfied your mind that the trunk was never delivered to it, then the plaintiff in this case would not be entitled to recover any sum whatever.” It was alleged that this instruction placed upon the defendant a higher burden of proof than is imposed by law; that “it required the defendant to satisfy the minds of the jury that the defendant never received the trunk, without charging that the defendant should show by the preponderance of evidence that it never received the trunk.”</p> <p>A similar assignment of error was made as to the following extract from the charge: “ As stated above, when the plaintiff presents a baggage check given to her by the defendant company, then that makes out a prima facie case,, and she would be entitled to recover of the defendant company if there is no other evidence introduced. The burden is then shifted to the defendant to show that the baggage was never delivered to it, or that it never lost or destroyed it. ”</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. October 30, 1919.</p> <p>Without presentation of the bill of lading or payment of the draft attached to it, Miller & Lipschitz, by depositing with the railway company’s agent at Atlanta the amount of the draft and the additional sum of $30, and signing an agreement to indemnify the company against loss, obtained from the agent two carloads of scrap iron which had been shipped to Atlanta from Savannah over the line of the Central of Georgia Kailway Company, upon a bill of lading issued by it, to the consignor’s order, with direction to notify Miller & Lipschitz, a draft upon them being attached to the bill of lading and sent through a bank for collection. Miller & Lipschitz had previously refused to pay the draft (for a reason not disclosed by the record) and it had been returned to the consignor, but, according to testimony of the carrier’s agent who delivered the iron to them, he did not know this, and they represented to him that the bill of lading and the draft were delayed in the mail, and exhibited to him a .letter from the shipper, stating the amount of the draft and that “ the balance of the amount would be paid when the shipper was in Atlanta, and he was assured that the amount of the deposit would be enough to cover the value of the shipment.” This delivery of the iron was made on the 20th of June; the 15th was the date of the refusal to pay the draft and its protest for non-payment. The consignor presented it to the railway company in Savannah on the 20th, and requested that a new bill of lading be issued to K. Koplin, Atlanta, Ga., and this was done, the original bill of lading being then surrendered and cancelled. This occurred before the Atlanta agent of the carrier “ could get his report to Savannah showing that he had- made delivery on an indemnity agreement. ” The consignor, after finding that the cars could not be delivered to Koplin, to whom the consignor had sold them, made a demand upon the railway company for payment for tbe iron, and tbe company made a settlement with the consignor by payment of a snm which was $54.32 more than the sum deposited by Miller & Lipschitz with the company. Payment of this sum of $54.32 was demanded of Miller & Lipschitz by the railroad company, and was refused, and the company sued them in the municipal court of Atlanta for this amount, alleging that it had been compelled to pay the same to the consignor and that under the agreement of indemnity the defendants were liable for the sum so paid, the agreement being that they should hold the company “harmless from loss or damages of any nature whatsoever, by reason of the delivery of the above-described property upon a deposit in lieu of the only endorsed bill of lading. ” The defendants in their answer denied liability and set up a counterclaim of $30, the amount by which their deposit with the railway company exceeded the amount of the draft.</p> <p>On the trial of the case the foregoing facts appeared from the evidence introduced by the plaintiff; and at the conclusion of the plaintiff’s evidence the court, on oral motion of the defendants, “ dismissed the plaintiff’s claim ” and rendered judgment against the plaintiff for the amount of the defendants’ counterclaim of $30. The plaintiff sued out certiorari, the certiorari was overruled, and the plaintiff excepted. The grounds of the petition for certiorari are:</p> <p>1. The court “ erred in dismissing the plaintiff’s claim and also in entering up judgment for the defendant as aforesaid. ”</p> <p>2. The court erred in refusing to strike the defendants’ answer because it was not verified. The judge’s answer to the certiorari states that when the motion to strike the defendants’ answer was made, counsel for the plaintiff produced a copy of the suit served, and stated that the copy was not verified; after which the motion was not insisted upon, and the court, being of the opinion that the point was not further insisted upon, made no definite ruling on the motion.</p> <p>3. The court erred in ruling out testimony of Eussell regarding the market value of the iron at the time of delivery to Miller & Lipschitz. Eussell was the plaintiff’s agent at Atlanta and. he testified that the plaintiff settled with the consignor “ on the basis of $18 a ton. ” He further testified: “ T do not know of my own knowledge what the value was. I inquired around among different iron dealers of this town as to the market value on this date, and I was informed that it was $18 a ton. ” The court, on motion of the defendants, ruled out the testimony as to the market value of the iron, on the ground that the market value could not be proved in this manner. (Other testimony for the plaintiff, which was uncontradicted, as to market value, was admitted, the consignor testifying that the sum paid him by the plaintiff in settlement for the iron was “ much less than the value of the iron; ” that the market price was more than that.)</p> <p>4. The court erred in entering up judgment for the defendants when no evidence was introduced to show that the defendants were entitled to recover on their counterclaim. The judge’s answer to the certiorari states that before the judgment was rendered the plaintiff’s counsel stated in open court that if the plaintiff was not entitled to recover, the defendants should recover $30 and costs; that there was no controversy as to the correctness of this amount if the plaintiff’s contention was not correct.</p>

<p>(Certiorari was granted by the Supreme Court.)</p> <p>Complaint; from city court of Louisville — -Judge Barwick. December 10, 1919.</p>

<p>Action for damages; from Habersham superior court — Judge J. B. Jones. December 24, 1919.</p>

<p>Action on contract; from Baldwin superior court — Judge Park. April 5, 1920.</p> <p>The action was for an alleged purchaser’s breach of contract by refusal to accept and pay for 420 barrels of flour, alleged to have been sold through a merchandise broker. The plaintiff alleged that the broker represented both parties, and that they were bound by the broker’s memorandum of the terms of sale. The defendant company denied that it was represented by the broker, and it contended that there was no binding contract between the parties. The court directed a verdict for the defendant. The case came to this court on exceptions to the direction of the verdict and to the overruling of a motion for a new trial.</p> <p>On the trial the broker, W. E. Epps, of Athens, Ga., who did business under the name of O’Farrell Brokerage Company, testified, that about July 2'7, 1917, he called up by telephone Mr. Whitfield, of the Whitfield Grocery Company, of Milledgeville, Ga., the defendant, and sold to the defendant two carloads of flour, 420 barrels, on terms subsequently stated in a “ memorandum ” or letter by himself. This letter, a copy of which was received by the defendant, was headed with the business designation of the broker, and was as follows: “ Athens, Ga., July 27th, 1917. The J. C. Lysle Milling Co., Leavenworth, Kansas. Gentlemen: We are pleased 'to confirm sale for your account to Whitfield Grocery Company, Milledgeville, Ga.,' 420 barrels flour, Monarch basis, at $11.40 delivered, 60 days shipment, open terms. Yours truly, O’Farrell Brokerage Company, by W. E. Epps, Manager. ” The witness testified: “ The O’Farrell Brokerage Company was acting as broker, representing both parties, buyer and seller, in that transaction. . . The paper [set out above] was signed by me. It was delivered to the J. C. Lysle Milling Company on July 27, 1917. In executing this instrument I was acting in the capacity of broker, representing both parties concerned. . . As to whether tMs instrument or memorandum contains all of the terms of the contract of sale, yes. As to whether or not this sale was made subject to baking samples being satisfactory, no; . .he asked me about baking samples, and I told him the mill would not sell that way. I told him they would ship the flour, and then, if it didn’t give satisfaction, he could ship it back. . . As to what reason they gave me for canceling the contract, well, they stated that it was too good for one of the brands and not good enough for the other. . . They further stated that they had not signed the contract and would not pay the difference. ” The witness testified that about August 23d or 24th he received a letter as follows: “ Milledgeville, Ga., August 22, 1917. W. E. Epps, Athens, Ga. Dear Sir: Deferring to the Lysle samples, beg to advise they show up very well, but we are unable to match the grade we are now using under our private brands, your brands either being poorer or better. Eor that reason we will not be able to use the flour, which we regret. Yours truly, Whitfield Grocery Co. ” The witness testified that he notified the plaintiff that the defendant had canceled the order and refused to accept the flour. The market price of this flour, he testified, had declined about $1 per barrel by August 23d or 24th, being then $10.40, and this was the price on September 27, 1917. The suit was for the difference between this price and the alleged contract price.</p> <p>Whitfield testified, that Epps did not represent him in any way whatever in the transaction in question, and that he did not authorize Epps to sign anything for him; that he had a conversa-, tion over the telephone with Epps,- in which Epps was trying to sell flour, and that he told Epps that if the flour matched a private brand used in his (Whitfield’s) business, he would take 420 barrels; that Epps agreed to this and said the samples would come down the next day; that the agreement was that he would take 420 barrels provided the samples would come up to his requirements; that he (Whitfield) had to write for the samples, and on August 3 he got them, and they did not come up to the requirements, as they did not match the brand in the defendant’s store, and he wrote the letter to Epps, declining to take the flour and stating the reasons for not taking it; that he heard nothing more about it and- was not notified that the plaintiff intended to hold him liable until in December following. A telegram dated July 28, 1917, from Athens, Ga., signed “ J. O. Lysle Milling Co., ” addressed to Whitfield Grocery Company, and saying “ Confirm booking two cars Monarch basis eleven forty cotton delivered, was introduced in evidence; also a letter dated July 31, 1917, from Epps to Whitfield Grocery Company, saying, “We are en-' closing herewith contract covering sale 420 barrels flour sold you on the 27th, from the J. C. Lysle Milling Co., which we will thank you to sign and return to us at your earliest convenience. ” The form of contract referred to in this letter was introduced in evidence by the defendant, over objection of the plaintiff. It was dated “ 7/27, 1917, ” and began as follows: “ Order No.-Whitfield Grocery Co., of Milledgeville, Ga., orders from The J. C. Lysle Milling Co., Leavenworth, Nans., F. O. B., at mill, freight allowed to Milledgeville, shipment within 60 days unless otherwise specified. It. It. delivery. Terms 30 days open. Draw draft through......................bank. ” Then followed the description and the price of the flour ordered, and the words, “ Cotton quality guaranteed absolutely satisfactory. This order will become a binding contract only when accepted by mail or telegraph by the home office of The J. O. Lysle Milling Co, Leavenworth, Kans. When so accepted it becomes a binding contract, subject to all the conditions contained above and on the back hereof, all of which terms and conditions are hereby agreed to. ” Under this was a space for a signature, followed by the word “ Buyer, ” and a statement that the order was taken by Silas W. Davis, salesman. On the back of this order were printed conditions, that “ all terms of sale are included in this contract; no salesman has authority to modify it; . . no .verbal agreement will be recognized,” provisions as to the mode of settlement if the buyer should fail to furnish shipping directions in contract time, etc. This form of contract, Whitfield testified, was mailed to him after he had the talk about the flour with Epps, and was not signed; his reason for declining to sign was that the sale was to be subject to baking samples, and when the samples came they did not match his grade of flour; it was not because of inferiority that he rejected the flour, and decline in price' had nothing to do with its rejection. He knew that Epps had booked him an order, and that Epps was a broker, trading in the name of O'Farrell Brokerage Company. He received the telegram from Epps as to booking the two cars; it was not in accordance with their conversation, and he called up Epps “ the next day or two and asked him for samples. ”</p> <p>One of the grounds of the motion for a new trial was that the court erred in admitting in evidence the unsigned form of contract introduced by the defendant, over the objection that it was irrelevant. Another ground was that the court erred in admitting the testimony of Whitfield that Epps did not represent him in the transaction, the plaintiff objecting co it as being a mere “ conclusion of the witness on the law of the case.” Another ground was that the court excluded a part of the answer- of the witness Epps to the question, “ What reason did they give you for canceling the contract ? ” the excluded part being: “ Well, they virtually agreed that the reason why they didn’t take the flour was on account of declined price; the market price was off a dollar a barrel. ” This “ was being read to the jury from depositions of said witness after proper notice had been given to defendant for their execution and-at which defendant failed to appear, ” and “ related to a part of a conversation, ” the remainder of which the court admitted in evidence.</p> <p>cited, as to agency of broker and effect of broker’s memorandum: Black’s Law Diet. 154; 19 Cyc. 186; 90 U. S. 330; 87 Mo. 146; Civil Code (1910), § 4107. As to direction of verdict: Civil’Code (1910), § 5926; 8 Ga. App. 255(2); 4 Ga. App. 553(4).</p>

<p>Trover; from Lincoln superior court — Judge Walker. March 25, 1920.</p>

<p>Complaint; from Fulton superior court- — -Judge Ellis. March 19, 1920.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Action for damages; from Eulton superior court — Judge Pendleton. April 14, 1920.</p>

<p>Action for damages; from Fulton superior court — Judge Pendleton. April 21, 1920.</p>

<p>Action on insurance policy; from city court of Oglethorpe — Judge Grier. July 29, 1920.</p> <p>W. L. McKenzie, as administrator of the estate of William M. Koonce, deceased, brought suit against the Northwestern Mutual Life Insurance Company upon four policies of life-insurance, each for $2,500, alleged to have been issued by the defendant on the life of Koonce and prior to his death. The .petition alleged that the policies sued upon were outstanding and in force at the time of the death of the deceased, and that a demand for payment had been made, but the company refused to pay. Attached to the petition was a copy of one of the policies, and of a,notice, directed to the defendant, to produce the four original policies, together with applications therefor and the medical examinations attached to the policies. This notice to produce was complied with by the defendant. The defendant filed an answer admitting a demand and a refusal to pay, but denied all liability, and alleged that the policies sued upon had never been issued and delivered, nor had the premiums thereon been paid.</p> <p>Upon the trial there developed the following salient facts: The plaintiff McKenzie was the duly qualified administrator of the estate of William M. Koonce, the applicant, and proofs of the latter’s death were properly submitted to the defendant. The application for the insurance was signed on March 28, 1918, at Montezuma, Georgia, where the applicant and the local agent of the company who solicited the application resided. The first year’s premiums on the policies were not paid at the time of the application. The medical examination of the applicant, showing him to be in a state of good health, was made on March 29, 1918, and was approved on April 12, 1918. The four policies of insurance sued upon were each dated April 11, 1918, and were mailed at the home office of the insurance company at Milwaukee, Wisconsin, on April 13, 1918. The applicant was taken ill on April 13, 1918, and died on April 15, 1918, at about 1:30 o’clock p. m. A tender of the first year’s premiums on the policies was made at Montezuma, Georgia, by a friend of the applicant on April 15,1918, at about 8 o’clock a. m., to a local agent of the company, who had authority to collect the first year’s premiums on the policies, and the tender, was refused; at the time of the tender the policies were somewhere en route between Milwaukee and Montezuma, but-had not reached the latter place, as under the usual custom of the defendant, the policies, after being issued at the home office in Milwaukee, would be mailed to the State agent of the company in Atlanta, and forwarded by the latter to the company’s agent in Macon, and from there, forwarded to the local agent in Montezuma. The copy of the policy attached to the petition disclosed that the application for the insurance was signed by the applicant and was made a part of the policy. The application contained the following stipulation: "It is understood and agreed (1) that if the premium for the insurance hereby applied for is not paid to the agent at the time of making this application, no liability shall exist until a policy as applied for shall have been issued and delivered to me and the first premium thereon actually paid during my lifetime; and (2) that if such premium is paid to the agent at the time of making this application, the insurance shall be effective, in accordance with the provisions of the policy applied for, from the date of my medical examination therefor and such policy shall be issued and delivered to me or my legal representatives, provided the company shall be satisfied as to my insurability on the date of such medical examination under the plan and amount of insurance hereby applied for; and (3) that if the company shall not be so satisfied the amount paid as premium shall be returned. ”</p> <p>The court, on motion of the defendant and after argument, awarded a nonsuit, and the plaintiff excepted.</p>

<p>Indictment for assault with intent to murder — conviction of stabbing; from Marion superior court — Judge Howard. September 11, 1900.</p> <p>According to the evidence, the defendant cut Sid Caldwell with a knife, in the home of Ada Breedlove. It was testified for the State that Caldwell was not doing anything to the defendant when this occurred, but that they had a difficulty and " some words ” about some whisky. It was testified in behalf of the defendant that Caldwell went into Ada Breedlove’s home and was drunk and had an open razor in his hand and threatened to kill her and others,, that she told him to get out, that the defendant was requested to stop him and attempted to do so, and that he attacked the defendant and cut at him with the razor, and the defendant then cut him with a knife.</p> <p>Paragraph 0 of the decision relates to the following ground of the motion for a new trial: “ Because the court erred in refusing to give in charge to the jury the following written request, the same having been submitted before the jury retired to consider their verdict, to wit: ‘ If you believe from the evidence that Sid Caldwell went into the home of-Ada Breedlove and acted in a dangerous manner, and, over her protest, continued to remain therein, refused to leave the house, and attempted violence to any one therein, she had a right to protect her home and the inmates thereof, and to that end she might use such force as was necessary to expel the intruder, and could call to her assistance any one therein; and if you believe that the defendant in good faith tried to stop the difficulty and was assaulted by Sid Caldwell with a razor, he had a right to defend himself with a knife or use such force to repel the assault.’ ”</p>

<p>Indictment for murder — conviction of manslaughter; from Dooly superior court — Judge Gower. October 11, 1920.</p>

<p>The stock-voting agreement between the plaintiff and other holders of a majority of the stock in a private corporation, under which she was authorized, in the event of the death of her husband, to vote all the stock for herself in the election of a vice-president of the corporation, was not contrary to public policy and was based upon a sufficient consideration; her rights under the contract were not lost by her divorce or remarriage or the death of her former husband; and where, in violation of the agreement, the other parties voted their stock for a resolution authorizing the board of directors to elect the officers, and ignored her attempts to vote all the stock for her own election to the office of vice-president — a salaried office — and the board of directors elected another to that office, she had a right of action for damages' for the breach of the contract.</p> <p>The court did not err in any of its rulings on the pleadings.</p>

<p>Indictment for misdemeanor; from Tattnall superior court — Judge Sheppard. September 11, 1919.</p>

<p>Action on insurance policy — city court of Sylvester. December 10, 1919.</p> <p>The Equitable Eire Insurance Company issued to Mrs. M. E. Thornton a policy for $4,000, covering a certain building belonging to her, and attached to the policy a “ New York standard mortgagee clause ” making the loss, if any, payable to the Jefferson Standard Life Insurance Company. The property insured was totally destroyed by fire. The Jefferson Standard Life Insurance Company, the mortgagee, alleging that it was “ suing in behalf of itself and of Mrs. Mary E. Thornton,” brought suit on the policy. It was alleged that “ petitioner’s claim against Mrs. Mary E. Thornton, evidenced by its holding a deed of trust or mortgage, is for less than $4,000.00.” (The bill of exceptions and the briefs of both sides fix the amount of indebtedness at $2,500.) It was also alleged that “the value of the property destroyed was more than $6,000, and, by reason of the total destruction of the same, Mrs. Mary E. Thornton is entitled to recover of the defendant, under the policy herein sued upon, the full face value of the same, with interest thereon, ” that proofs of loss and all other preliminary conditions imposed by the policy had been complied with, that more than sixty days had elapsed since the proof of loss was furnished, and that the refusal to pay the amount due on the policy was without good excuse and in bad faith, and the plaintiff was entitled to recover $1,000 for damages and $1,000 for attorney’s fees. The prayer of the petition was that plaintiff “have judgment against the defendant for the principal, damages, interest, attorney’s fees, and cost of court” By amendment the words quoted above, “ suing in behalf of, ” were stricken, and the words “ suing for the use of and in the right of ” substituted therefor. The following paragraph was added by amendment: “The Jefferson Standard Life Insurance Company herein brings this suit in behalf of the said Mrs. Mary E. Thornton and for her use, for the full face value of said policy with interest thereon, damages and attorney’s fees, with the consent of the said Mrs. Mary E. Thornton, the Jefferson Standard Life Insurance Company herein being the appointee of the said Mrs. Mary E. Thornton, to collect the policy herein sued upon. ” A further amendment alleged that “ the failure of defendant to pay is wilful and malicious, and done with a view and intent to injure and damage yo.ur petitioner, and to force petitioner into useless and unnecessary litigation. ” A general demurrer to the petition was overruled, and the defendant excepted.</p>

<p>Indictment for larceny after trust; from Lowndes superior court — Judge Humphries presiding. February 14, 1920.</p> <p>The defendant demurred to the indictment on the ground that there was a misjoinder of counts, the second and fourth counts charging simple larceny, a misdemeanor, and the other counts charging a felony.</p>

<p>Action for damages; from Wilkinson superior court — Judge Park. April 9, 1920.</p>

<p>Trover; from city court of Savannah — Judge Rourke. May 22, 1920.</p>

<p>Set-off in the nature of damages can not he pleaded by the defendant, nor adjudicated, in an action of trover, unless some special equity, such as non-residence or insolvency of the plaintiff, is shown.</p> <p>A city court can not entertain a plea which prays for affirmative equitable relief.</p>

Indictment for sale of liquor; from Douglas superior court — Judge Irwin. June 15, 1920.

<p>Rule for contempt; from city court of Waycross — Judge Crawley. July 14, 1920.</p> <p>Application for certiorari was denied by tbe Supreme Court.</p>

<p>Indictment for assault with intent to murder; from Bleckley superior court — Judge Graham. May 15, 1920.</p> <p>1. Under an indictment for assault with intent, to murder, alleged to have been committed by shooting Tobe Ilarrell with a pistol, Loyd was convicted of the offense of shooting at another. From the evidence it appeared that one Newsome, who had previously worked on Loyd’s place and owed him money, was hired by Harrell and worked on Harrell’s place; that Loyd caused the arrest of Newsome, and, when Harrell was about to sign a bond for Newsome’s release, drew a pistol and shot'him. In his statement at the trial Loyd said that after he had sworn out a warrant against Newsome for cheating and swindling, Harrell promised to pay Newsome’s debt and promised that he (Harrell) would not sign a bond for Newsome’s release, but he did not keep these promises. As to the shooting the defendant said: “ When he (Harrell) sat down at the end of the table to sign the bond, after promising me he would not do it and agreeing to pay me, I had a little old two-inch-barrel pistol in my pocket. I got that little old pistol out and shot the negro and made a flesh wound. I had no intention of murdering him. I just wanted to keep him from signing that bond and beating me out of my money. ” In the motion for a new trial it was contended that a conviction of shooting at another was unauthorized either by the evidence or by the statement of the defendant; that the defendant was either guilty of assault with intent to murder or not guilty of any offense, and that the instructions to the jury on the offense of shooting at another were unauthorized.</p> <p>3. The exceptions to the charge of the court as to the fixing of a maximum and minimum sentence are sufficiently indicated in the decision.</p> <p>3. The exclusion of testimony that the warrant referred to in the evidence was for cheating and swindling was alleged to be error because this fact shed light upon the transaction and the cause of the trouble.</p> <p>4. It was alleged that the statement of the defendant was excluded from consideration by the charge to' the jury that they had been sworn to try the case “ according to the evidence. ”</p> <p>5. It was alleged that the court expressed an opinion as to what had been proved, and was argumentative, and gave the contentions of the State very strongly, while ignoring the defendant’s side of the case, in instructions to the jury, set out in special grounds 4, 5 and 6 of the motion for a new trial, as follows:</p> <p>“No one has the right to shoot a human being with a pistol unless the act is justified or excused by some rule of law. The intentional shooting and wounding of a human being, whether a white man or a negro, with a pistol, is unlawful unless it i"s done under circumstances of justification or excuse, according to the principles of the Penal Code of this State.” (5) “ Refusing to pay an account or debt, or the signing of a bond, or attempt to sign a bond, as security for a person under arrest, is no provocation in law, and will not under any circumstances justify or excuse the shooting and wounding of a human being with a pistol. ” (6) “If you find beyond a reasonable doubt that in this county, within four years prior to the-finding of the indictment, the defendant, Tom Loyd, unlawfully and intentionally shot and wounded Tobe Harrell, a human being, with a pistol, the following rules should control you in arriving at a verdict: If the pistol as used by the defendant was a weapon likely to produce death, and the defendant intentionally shot and wounded said Tobe Harrell with said pistol with deliberate intent to kill him, solely for the reason that said Tobe Harrell failed or refused to pay a debt or an account, or solely because the said Harrell was signing or attempting to sign a bond as surety, the defendant would be guilty of the offense of assault with intent to murder. ”</p> <p>6. It was alleged that the defendant’s statement was ignored and his contentions not fairly stated in the following part of the charge of the court: “If you should not find beyond a reasonable doubt that in this county, within four years prior to the finding of the indictment, the defendant intentionally and unlawfully shot and wounded Tobe Harrell, a human being, with a pistol, as alleged, or if you have a reasonable doubt of his guilt, you should return a verdict of not guilty. ”</p> <p>7. The court charged: “ The State, however, is not required to prove the guilt of a defendant beyond all doubt. Moral and not mathematical certainty is all that can be expected in legal investigation. The doubt of a jury, to justify an acquittal, should be reasonable, and not mere vague conjecture or possibility of the innocence of the accused. ” The defendant excepted to this charge on the ground that the court failed to charge the jury in this connection that if they had any reasonable doubt about the defendant’s guilt they should acquit. The instructions here complained of were immediately preceded by an instruction that if the jury had a reasonable doubt of the guilt of the defendant, they should return a verdict of not guilty.</p> <p>8. The court charged: “ I have written out some . forms of verdict corresponding with the charge that I have given you, and they will be handed to you, and you can select from these forms that form of verdict which coincides with your finding. ” The defendant excepted to this on the ground that the court had no right to write the forms of the verdict for the jury on paper, and send them out with the jury in order to let the jury select from these forms the verdict which they could find; that the jury should be left alone to make their verdict from their memory of what occurred on the trial of said case, and they should not be aided by any writing of the presiding judge purporting to be the form of the verdict.</p>

<p>Indictment for burglary; from Jasper superior court — Judge Park. September 1, 1930.</p>

<p>1. In a trial under an indictment for murder, where the testimony tends to show the offense of murder as alleged in the bill of indictment, and the defendant’s statement at the trial tends as a whole to show that the homicide was justifiable, yet where, by -accepting as true parts only of the testimony- and parts only of the defendant’s statement, or by considering the testimony and the statement conjointly, the jury may be authorized to find as true a set of facts constituting the offense of voluntary manslaughter, the court does not err in giving in charge to the jury the law applicable to all three of the grades of homicide thus brought into question. Maughon v. State, 9 Ga. App. 559 (4), 569 (71 S. E. 922) ; Brown v. State, 10 Ga. App. 50 (1) (72 S. E. 537).</p> <p>(a) Applying this principle to the facts of this case, this court cannot say, as a matter of law, that the instructions in the charge of the trial judge on voluntary manslaughter were inappropriate, or that the verdict finding the accused guilty of that offense was without evidence to support it.</p> <p>2. In the trial of such a ease, evidence as to threats made by the accused against the decedent prior to the fatal encounter is admissible, either as evidence in chief to show malice or as strict matter of rebuttal to contradict that-part of the defendant’s statement wherein he denies malice. See Park’s Penal Code, § 61, with annotations on “ Threats, ” and § 1036, with annotations under the catchword “ Contradict. ” But regardless of technical niceties as to what evidence should be offered in chief and what may be offered in rebuttal, this court will not reverse a trial court for admitting in evidence at any stage of the trial any testimony that is both relevant and competent. Thomasson v. State, 22 Ga. 504; MeKinne v. State, 81 Ga. 164 (3) (9 S. E. 1091) In view of these principles and of the further fact that the jury m the instant case found the accused guilty of voluntary manslaughter, and, therefore, that the killing was without malice, his contention that he should have a new trial because such evidence was admitted as matter of rebuttal, over his objection that it should have been offered in chief, is without semblance of merit. Carter v„ Slate, 2 Ga. App. 254 (1) (58 S. E. 532); Cobb v. State, 11 Ga. App. 52, 53 (6) (74 S. E. 702).</p> <p>3. The charge of the court that “ A reasonable doubt is the reverse of a reasonable and moral certainty” was inaccurate;, but when considered in connection with the entire charge, or even with the entire definition of the phrase “ reasonable doubt ” as given in charge to the jury, it appears that this inaccuracy could not reasonably have prejudiced any right of the accused.</p> <p>4. The charge that a presumption of malice arises upon proof of an intentional homicide, unless other facts appear to negative such presumption, was applicable to the offense of murder only; and the accused having been convicted only of voluntary manslaughter, this charge affords him no cause for a new trial, even if the charge might otherwise have been erroneous for any reason. Cobb v. State, 11 Ga. App. 53(6) (74 S. E. 702); Williams v. State, 12 Ga. App. 337(1) (77 S. E. 189).</p> <p>5. The charge of the court on apparent necessity to kill is not subject to the criticism that it restricted the jury to the consideration of a real necessity.</p> <p>6. After correctly instructing the jury as to the weight to be given evidence of good character, the court did not err in further charging them as follows: “ If, however, the other proof in the case — [proof] other [than] that of good character — leaves no reasonable doubt in the mind of the jury as to the defendant’s guilt, and if the proof of good character leaves no reasonable doubt as to the guilt of the defendant when considered in connection with the other evidence, it would be the duty of the jury to convict the defendant, notwithstanding the proof of good character. See Park’s Penal Code, § 1013, with annotations on “ Character,” and § 1019, with annotations on “ Charge.”</p> <p>7. The defendant requested the court to charge as follows: “ Good character alone, when established, may generate in the minds of the jury a reasonable doubt and produce an acquittal.” The court refused to adopt the language of the request, but, in lieu thereof, charged the jury as follows: “ I charge you that good character is a substantive fact in the case, to be considered along with the other facts in the case; and even if the other facts in the case may not leave a reasonable doubt in the minds of the jury as to the guilt of the defendant, still if the good character that is established, or may be, in the minds of the jury, has the effect to raise a reasonable doubt in the minds of the jury as to his guilt, it would be the duty of the jury to give him the benefit of the doubt and acquit him.” Held, in view of the charge given, the court did not err in refusing to adopt the exact language of the request.</p>

<p>1. The provisions of a life-insurance policy exempting the insurer from liability for death occasioned by the insured engaging in military or naval service in time of war unless a written permit shall be issued by the company are not void as against public policy; and this is so even where the insured is drafted into the service.</p> <p>(а) The fact that the insurer knew, at the time the policy was issued, that the insured would in all probability engage in military or naval service was not sufficient to effect a waiver of the “ war clause ” referred to above.</p> <p>(б) Nor was the retention by the company of an unearned portion of the first premium, with knowledge of the fact that the insured was engaged in the military service of his government in time of war, sufficient to constitute such a waiver.</p> <p>2. The death of the insured, who had been drafted into the military service of the United States, during the recent war with Germany, having occurred in the North Channel, between the coasts of Scotland and Ireland, as a result of an accidental collision between a ship (upon which he and other soldiers were being transported to Europe) and a sister ship under the same convoy, no liability under the policy (except the reserve due thereon) existed, in view of the plain and 'unambiguous provisions of the policy, exempting the insurer from all indemnity (except the amount of the reserve thereon) in the event the insured lost his life while engaged in military service without the confines of continental United States.</p>

<p>Action for damages; from city court of Polk county — Judge Nunnally presiding. October 8, 1920.</p>

<p>Indictment for assault with intent to murder; from Whitfield superior court — Judge Tarver. November 6, 1920.</p> <p>Under an indictment which charged assault with intent to murder by shooting Headrick with a pistol, Whittemore was convicted of the offense of shooting at another. From the evidence it appeared that Munroe Smith and Headrick — a policeman not in uniform' — -were walking in a street together at night, when the defendant’s sister, Mrs. Hill, was seen running towards them, followed by the defendant; that Smith wheeled and ran back; that she ran past Headrick, and that the defendant commenced shooting at Headrick with a pistol when in two or three feet from him, and fired two shots, one of which passed through his right arm and the other through his necktie. Headrick testified: “ There wasn’t a word said before the shooting. . . She says, ‘Here he comes down here/ after he had shot me. . . He didn’t say a word; he just went on down the street. . . I was not doing anything to him or to Mrs. Hill. . .1 have known Mr. Whittemore ever since he was a little hoy. . . We have been good friends all our lives. He never had a thing in the world against me, nor me against him. . . I did not take hold of Mrs. Hill as she went by me. . . I did not touch her.” An officer testified: “ I arrested Mr. Whittemore something like 25 or 30 minutes after the shooting, I guess. Mr. Whittemore seemed to be drinking a little. I would call him intoxicated. He wasn’t down, but he was drinking some.” The defendant’s sister testified: “ I was hunting for Mun Smith. . . He had pictures of me. . . I saw him coming up the street with Mr. Headrick, and he turned and run. I said to my brother, Home on. Yonder he goes now.’ So I run out, and my brother right behind me. . . Mr. Headrick grabbed me, caught hold of me. He caught me by the arm. He didn’t say anything to me. . . My brother was coming along. . . When I said,' * Turn me loose/ my brother shot.” The defendant’s statement at the trial was as follows: “ This here Mr. Smith lived here in Dalton, and he had stole a picture from my sister, carrying it about in his watch, and he had talked lewdness and everything else about her, and she comes to me out in the country to come down here and demand that picture of him. Well, I come for that purpose, not to harm him under no circumstances, but, while we was trying to locate him, Mr. Headrick and Smith had got together by some means another, and I was in Springfield’s restaurant eating a snack, and she called me, and I went. Just as I stepped out on the street a piece Mr. Headrick he grabbed her by the arm, and she says, “'Turn me loose.’ She said it twice, and when she said that I fired at him.”</p> <p>The court, on objection of the prosecuting attorney, excluded testimony of the defendant’s sister that the defendant was there that night because she “went to Murray county after him on account of some pictures Mun Smith had;” the judge stating, “ Whether the defendant at the time of the shooting thought it was Mun Smith or Mr. Headrick, or whether he didn’t know who it was, he wouldn’t have been justified in shooting, unless he was acting under the fears of a reasonable man that the life of his sister was in danger or a felony was being attempted upon her person. The question of the pictures I don’t think is material.” In the motion for a new trial it is alleged that “ this is error, because (a) this, evidence was admissible as an identification [explanation?] of the presence of the defendant at the time and place of the shooting; because (5) it is the expression of an opinion by the court and invades the province of the jury; and (c) it is not the law; it states the rule too strongly as against the defendant. The bona fides of the defendant at the time of the shooting is restricted and excluded from the consideration of the jury.”</p> <p>The court charged: “ If at the time of the shooting W. H. Head-rick was making an assault upon the person of the sister of the defendant, or an attempt to commit a serious personal injury upon her person, sufficient to justify the excitement of passion and to exclude all idea of deliberation or malice, and in the heat of passion and without malice the defendant shot at W. H. Head-rick, he would be guilty of the offense of shooting at another, and that should be your verdict.” It is alleged that this was error, because it is not the law of the case, and because, under the evidence, the shooting was not because of a belief that Headrick was making an assault upon the defendant’s sister, and it was not a result of passion so far as Headrick was concerned.</p> <p>The court charged: “ If at the time of the shooting the defendant was acting under the fears of a reasonable man that the life of his sister was in danger, or that a felony was being attempted upon her person by W. H. Headrick, and, under the belief of a reasonable man, thought it was necessary to shoot in order to save her life or in order to prevent the commission of a felony upon her person, and under these circumstances he shot W. H. Head-rick, he would not be guilty of any offense, and it would be your duty to acquit him.” It is alleged that this is not the law, and is not adjusted to the facts in evidence.</p> <p>The court charged: “An apparent danger is the same as a real danger.” This is alleged to be error because an apparent danger may or may not be the same as a real danger, depending on the good faith of the defendant and the circumstances surrounding him.</p> <p>The court charged: “ If W. H. Headrick was a police officer of the City of Dalton and this occurrence took place in the City of Dalton, and if at the time of the occurrence the sister of the defendant, together with the defendant, was endeavoring to make an assault upon the person of one Monroe Smith, then it was the duty of the said W. H. Headrick to restrain her, if possible to do so, from the commission of that assault, and if he laid his hand upon her with the intent to restrain her from the commission of an assault, as a police officer of the City of Dalton, he would not have been guilty of any offense in so doing.” It is alleged that this is not the law, and is not authorized by the evidence; that there is no evidence that the defendant’s sister was attempting to make an assault upon Monroe Smith.</p> <p>The court charged: “ Any occurrence such as is referred to in the statement of the defendant, and perhaps in the evidence, relative to the taking of certain pictures of the defendant’s sister by one Monroe Smith, and his carrying these pictures, or either of them, in his watch, could not be considered by you as offering justification, mitigation, or excuse for the' shooting which you have under investigation.” It is alleged that this is not the law; that it excludes from consideration the good faith of the defendant, and that the jury are the judges of what circumstances amount to justification.</p> <p>The court charged: “ If you find that the defendant ’ shot at Mr. Headrick as alleged in the indictment, and that at the time of the shooting he was not acting under the fears of a reasonable man that a felony punishable by death or by imprisonment in the penitentiary was being attempted upon the person of his sister, and under the - belief of a reasonable man thought it was necessary to shoot in order to save the life of his sister or in order to prevent the commission of a felony upon her person, then you ought not to acquit him, but you would convict him either of assault with intent to murder or of shooting at another.” It is alleged that this is not adjusted to the evidence, and excludes the good faith of the defendant.</p> <p>The court interrupted the argument of the defendant’s counsel and in the presence of the jury said: “ The court, with reluctance, interferes with the argument of counsel to this extent: The defendant not having claimed in his statement that he shot thinking that the person whom he shot was Monroe Smith, counsel will not be permitted to argue concerning the allegation that Monroe Smith had a picture or pictures of defendant’s sister, one of which lie was carrying in his watch, nor refer to this as constituting either justification, mitigation, or excuse for the alleged shooting.” It is alleged that this was an expression of opinion which invaded the province of the jury, and was prejudical to the defendant.</p>

<p>Indictment for assault with intent to rape; from Mitchell superior court — Judge Wilson. November 6, 1920.</p>

<p>Complaint; from Brooks superior court — Judge Thomas. June 7, 1919.</p>

<p>Certiorari; from Bibb superior court — Judge Mathews. January 22, 1920.</p>

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

<p>Complaint; from Cobb superior court- — -Judge Blair. April 15, 1920.</p> <p>cited 137 Ga. 355 (5), 357.</p> <p>cited: 20 Ga. App. 221 (3); 113 Ga. 289 (3); 140 Ga. 306; Civil Code (1910), § 3591.</p>

<p>Complaint; from Cobb superior court — Judge Morris. July 25, 1919.</p> <p>This case was transferred from the- Supreme Court to the Court of Appeals, it being held that " the prayer for cancellation of the noté sued on was not pertinent to the defense, and cannot have the effect of converting the suit into an equitable cause cognizable by ” the Supreme Court on writ of error. 150 Ga. 119 (102 S. E. 826).</p>

<p>1. By the express terms of the Civil Code (1910), §§ 4740, 5003, 5010, a plaintiff, as well as a defendant, is in all cases required, as a prerequisite to his appeal to a jury in a justice’s court, to give bond and security for the eventual condemnation money, except where the appeal is taken by consent, or entered in forma pauperis.</p> <p>2. The code provisions referred to above were not complied with by an instrument in form as follows: “McNutt & Company vs. I. C. Whitson. In 103Sth J. P. Court, November Term, 1919. Now comes the plaintiff in .the above-stated case, and, being dissatisfied with the judgment of the court, and within the time allowed by law, appeals the same to a jury in the justice court, having paid all costs. This November 15, 1919. [Signed] W. B. McNutt & Company, by Martin G. Smith, Attorney. [Signed] G. W. Gearrin, Security.”</p> <p>3. Irrespective of whether or not, under section 5707 of the Civil Code (1910), such an instrument could be perfected by amendment actually offered for that purpose, since it affirmatively appears from the record before us that no such " amendment was offered in terms of the law,” the appeal was and remained a nullity, and the certiorari should have been overruled. This is true notwithstanding it appears that when the motion to dismiss the appeal was made before the justice, the plaintiff insisted, without offering any amendment, that “ he had a right to amend so as to make the appeal comply with the statute.”</p>

<p>Action for damages; from city court of Atlanta — Judge Reid, April 24, 1920.</p>

Foreclosure of lien; from Douglas superior court — Judge Irwin. April 9, 1920. The nature of the ease appears from the charge of the court, set out below. There was a general verdict for the defendant. The plaintiffs excepted to the overruling of a motion for a new trial.

<p>Certiorari; from Fulton superior court — Judge Bell. April 3, 1920.</p>

<p>Action on insurance policy; from Bleckley superior court — Judge Graham. April 26, 1920.</p> <p>On September 4, 1917, the Georgia Casualty Company issued to and in favor of the Cochran Oil Mill & Ginnery Company a $10,000 policy of liability insurance, under which the insured was protected for one year against loss on account of liability growing out of injuries to any of its .employees, but with a provision limiting its liability for injuries to any one such person to the sum of $5,000. On September 8, 1917, the Hartford Steam Boiler Inspection & Insurance Company renewed, for a period of three years a $10,000 policy of steam-boiler insurance in favor of the Cochran Oil Mill & Ginnery Company, by which it became liable to the insured on account of loss arising from any explosion of certain described boilers and pipes belonging to the plant of the insured, the stated liability extending to compensation first for any property loss occasioned by such an explosion, and secondarily for injuries or death to any person brought about by such an explosion, with a limit of $5,000 for personal injuries to any one person. A stipulation of the Hartford Company’s policy provided as follows : “If at the time of an explosion, collapse or .rupture, there is in effect any contract or other provision requiring any other insurance company, or any association or individual, or body politic or corporate, to pay to the assured, or in his behalf or stead, damage resulting from injury or death of a person or compensation therefor, the insurance by this policy shall become effective and applicable only on the portion of the assured’s loss with respect to said person that is in excess of the indemnity named in or required to be paid under said contract or provision, and in such case the insurance by this policy is to be considered as excess insurance and not as contributing insurance; (&) but if at such time there is not in • effect any such contract or other provision with respect to the injury or death of said person, then the insurance by this policy against such loss of the assured may be applied on any part of said loss.” On October 17, 1917, there was attached to the Georgia Casualty Company policy a rider providing as follows: “In the event the assured shall carry steam-boiler insurance covering any boiler or boilers on the premises described in this policy, it is expressly understood and agreed that this company shall not be liable for any loss resulting from death or injury to any person or persons caused by the explosion, collapse or rupture of such boilor, boilers, or appurtenances so insured, except as follows: If an explosion, collapse or rupture of any boiler, boilers, or appurtenances so insured shall occur in, upon, or about the premises and in the business, trade, or work of the assured as in this policy described, and shall result in bodily injuries or death of any employee or employees whose compensation is included in the estimated pay roll herein set forth, then and in that event only this policy, subject to its terms, limitations, and conditions, shall be excess insurance only, and shall become applicable, effective, and available only after such boiler insurance has been exhausted in the payment of such claims.” It is conceded that each of the insurance companies received the full premium usually charged for such policies, without any reduction being made in consideration of the above-quoted limitations.</p> <p>On October 19, 1917, an employee of the insured was injured on account of the explosion of one of the steam pipes referred to above. The claim for damages was adjusted and settled by the insured for the sum of $150, after each of the insurance companies had been notified of the claim, and after both had refused payment on the ground that the other insurance company was liable. The insured then brought suit against the Hartford Steam Boiler Inspection & Insurance'Company, and attached to the petition a copy of the policy issued by the Georgip Casualty Company, as well as a copy of the Hartford Company’s policy. The case came to this court on exceptions to the overruling of the defendant’s demurrer to the petition. In a supplemental brief, counsel for the Hartford Company specifically withdrew, by direction of their client, the contention that on account of the insured’s direct adjustment of the claim with the employee the insurer was not liable.</p>

<p>Action for damages; from Fulton superior court — Judge Pendleton. May 11, 1920.</p> <p>This court held that the original petition in this case did not set forth a cause of action, and that the court below erred in overruling a general demurrer. 24 Q-a. App. 524. Subsequently paragraph 8 of the petition, which is set out in the former decision, was amended by adding: “that defendant knew that the aforesaid step that broke and gave way was broken and out of order, at the time plaintiff attempted to use same; further, that defendant knew that at the point where the injury occurred was a bend or turn in a narrow staircase, and that plaintiff could not see, the same being very dark and walled in on both sides; that defendant knew all of this and did not warn plaintiff of said defects; that plaintiff did not know of said defects in said steps, could not see same, and could not have discovered said defect by the exercise of ordinary care; that defendant was negligent in not warning plaintiff of said defect in said stairs. ” To the petition as amended the defendant demurred, on the grounds, that no cause of action was stated; that the amendment does not show that the plaintiff did not have means equal with those of the defendant of knowing the condition of the steps, and that the amendment does not show negligence on the part of the defendant. The demurrer was overruled, and the defendant excepted.</p>

<p>'Complaint; from city court of Macon — Judge Guerry. May 24, 1920.</p>

Complaint; from Chattooga superior court — Judge Wright. May 4; 1920. Application for certiorari was denied by the Supreme Court.

<p>Complaint; from Chattooga superior court — Judge Wright. May 4, 1930.</p>

<p>Complaint) from Fulton superior court — ■ Judge Pendleton. May 12, 1920.</p>

<p>Certiorari; from Fulton superior court- — Judge Bell. March 35, 1930.</p>

<p>Action on contract; from Floyd superior court — Judge Wright. June 3, 1920.</p>

<p>Affidavit of illegality; from city court of Valdosta — Judge Cranford. May 21, 1920.</p>

<p>Complaint; from Ben Hill superior court — Judge Gower. May 4, 1920.</p>

Complaint; from Coffee superior court — Judge Summerall. June 11, 1920. (Statement- of facts by Jenkins, P. J.) This was a suit on a promissory note. The defendant admitted the execution of the note, and relied upon a plea of payment. The undisputed evidence shows the followings facts: Miller executed and delivered to Evans the note sued on, which in due course was purchased by Byrd, the plaintiff.

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

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

<p>Complaint; from Fulton superior court — Judge Ellis. July 1, 1920.</p> <p>This is a suit on open account against Fair & Martin Incorporated, for the contract price of a car of tomatoes. There was a verdict for the plaintiff, and the defendant’s motion for a.new trial was overruled. The contract for the purchase of the tomatoes is contained in letters and telegrams between the parties. On April 18, 1917, the defendant, in Atlanta, telegraphed to Brewer, the plaintiff, in Homestead, Florida, asking for prices on tomatoes which Brewer might have “rolling” — that is, were on board cars coming north from Florida, which could be diverted to the defendant in Atlanta. In reply Brewer, on April 22 wired, that he had a car of tomatoes going west, “ rolled Saturday night ” containing 197 crates of “fancy,” 183 crates of “choice,” and 47 crates of “ seconds, ” quoting prices on each grade. The terms “ fancy ”, “ choice, ” and “seconds ” are current with the trade, describing grades of tomatoes. On April 23 the defendant telegraphed in reply: “Divert us car tomatoes shipped Saturday prices quoted confirm quick. ” Beplying to this telegram, Brewer, on April 24, wired: “ F. o. b. sale here confirmed Southern 120632 passed Jacksonville today and diverted to you. Tomatoes packed to color in ten days, inspect accordingly. ” On the day of the arrival of the car, April 25, the defendant made inspection of the tomatoes and wired to Brewer: “ Southern 120632 arrived. Inferior quality large percentage showing black spots some green stock showing decay. ” This telegram was followed by a letter from the defendant to Brewer, dated April 27, 1917: “On the 25th we wired you that car of tomatoes Southern 120632 arrived and was rejected account of inferior quality. A large percentage showing black spots, and some of the green stock were showing decay. We regret very much that we should have trouble on our first car, but trust to be more, successful next time. We can only use good stuff. ” This letter was excluded from evidence, on the defendant’s objection that it was a self-serving declaration and drew conclusions as to previous correspondence and construed previous correspondence. This ruling is complained of in the motion for a new trial, the defendant insisting that the letter should have been admitted, because it gave due and timely notice to Brewer of the rejection of the shipment on account of the inferior condition of the tomatoes, and because it confirmed the telegram as to their inferior quality and met the objection to that telegram that it was ambiguous on the point of rejection, making clear that the tomatoes were rejected because of inferior quality.</p> <p>Another contention of the defendant was, that, this being a suit on open account, the plaintiff must show that the title to the tomatoes had become vested in the defendant when the suit was brought, and that the plaintiff had failed to carry this burden. The evidence of the plaintiff showed that the bill of lading had been taken by the seller in his own name, and that the car of tomatoes was consigned to his own order, and there was no evidence that it had been transferred to the defendant. The evidence did not show what had become of the bill of lading. The court charged that “if the railroad company agreed to and did offer to deliver the car to defendant without transfer of this bill of lading, then the failure to transfer the bill of lading would not of itself defeat the plaintiff’s right of recovery, if he was otherwise entitled to recover. ” Error is assigned on this charge, on the ground that there was no evidence on which to base it.</p>

Action for damages; from city court of Thomasville — H. H. Merry, judge pro hac vice. August 9, 1920. This action was brought against the director-general of railroads, operating the Atlantic Coast Line Eailroad. The allegations of the plaintiff’s petition as amended were in substance as follows: He was employed by the defendant as a boiler maker, and it was his duty to do general repair work on the defendant’s boilers when ordered to do so by his superior' officers.

<p>Petition for certiorari; from Glynn superior court — Judge Higlismitb. August. 20, 1920.</p>

<p>Action on bond; from city court of Nashville — Judge W. E. Smith. July 30, 1930.</p>

<p>Certiorari; from Bibb superior court — Judge Mathews. August 16, 1920.</p>

<p>Motion for new trial; from Fulton superior court — Judge Pendleton. June 16, 1920.</p>

<p>Complaint; from city court of Sandersville — Judge Jordan. August 24, 1920.</p>

<p>Certiorari; from Calhoun superior court — Judge Harrell. August 13, 1920.</p> <p>This case originated in a justice’s court. The cause of action attached to the summons was as follows:</p> <p>“ J. B. Lovell to W. B. Pace, Debtor.</p> <p>1919.</p> <p>May 19. To one cow damaged by auto, sold..........$100.00</p> <p>Credit by money from cow................. 35.00</p> <p>Bal. due ....................$ 65.00</p> <p>The defendant demurred to the cause of action, upon the grounds: “ 1st. The summons and account attached fail to show, either jointly or considered separately, any liability against defendant. 2d. No reasons are shown why the defendant is liable for the killing of the milk cow. 3d. Defendant demurs especially to the account sued on, upon the ground that the facts stated do not inform the defendant as to the nature of the account or why defendant is chargeable with the killing of the cow. 4th. Plaintiff’s action sounds both of the nature of suit on contract and on tort, and defendant is unable to ascertain from the summons and account the particular nature of the charge against him. ”</p> <p>Before judgment on the demurrer the plaintiff, by leave of the court, filed the following amendment, to meet the demurrer: “ 1. Plaintiff amends his said suit and account by adding the following: On the 19th day of May, 1919, plaintiff’s grandson was driving a cow, property of plaintiff, worth $125.00, in the public road near Leary, when said cow was struck by an automobile driven by the son of defendant, Jim, a minor, who recklessly drove said car against said cow, breaking her leg, said boy acting at the instruction and command of his father to take a passenger to Leary. Whereupon plaintiff called upon defendant, apprising him of the damage done to his said cow by said son, told defendant that the cow was then defendant’s, and would takp $.tno,00 for her, whereupon defendant agreed to give S1CK).©0 fur her and requested plaintiff to sell the cow to the market man for him, and whatever it brought him he would pay the balance, and plaintiff, acting upon said agreement, thus losing 2 hours from his plow in busy time, so sold said cow to the market man, Mr. Taylor, for the sum of $40.00 and received from him the sum of $35.00, which sale defendant is indebted for the balance of said account, $65.00, as well as the balance of said damage to plaintiff by the authorized act through his said son, driving said car. ” The justice sustained the demurrer “ upon each and every ground, the plaintiff having amended his cause of action. ” Certiorari was sued out, and the judge of the superior court sustained the certiorari and remanded the case for another hearing.</p>

<p>Action on contract; from Fulton superior court — Judge Pendleton. December 15, 1919.</p>

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

<p>Action for damages; from Fulton superior court — Judge George L. Bell. February 6, 1920.</p>

<p>Complaint; from Talbot superior court — Judge Howard. January 16, 1920.</p>

<p>Attachment; from Ben Hill superior court — Judge Gower. February 13, 1920.</p>

Trover; from Fulton superior court — Judge George L. Bell. January 6, 1920. The Dickson Planing Mill Company shipped a carload of lumber to the Pbcenix Planing Mill Company on or about October 3, 1917. The latter company went into bankruptcy on October 25, 1917.

<p>Certiorari; from Fulton superior court — Judge Bell. April 10, 1920.</p>

<p>Action for damages; from Tattnall superior court — Judge Sheppard. May 1, 1920.</p>

<p>Attachment; from city court of Dublin- — -Judge Flynt. June 11, 1920.</p>

<p>Action on insurance policy; from Fulton superior court — Judge Pendleton. January 14, 1919.</p>

<p>Certiorari; from Bibb superior court — Judge Mathews. April 9, 1920.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Action for damages; from city court of Thomasville — Judge W. H. Hammond. January 5, 1920.</p> <p>The petition alleges, substantially, that the plaintiff was in the employ of the defendant as a brakeinan, and on a certain date was the member of the crew of a certain freight-train of the defendant; that the train on that day had been stopping at intervals for the purpose of allowing certain track-laborers under the supervision of a section-foreman, who were in one of the box-cars of the train, to throw off cross-ties; that these cross-ties were, in accordance with custom, being thrown off on the right side of the train; that at a certain stop the conductor of the train, in 'the presence of the section-foreman, told the plaintiff that at the next stop the engine was to be cut off from the train, and directed the plaintiff to perform this duty; that the plaintiff, at the next stop, alighted from the rear of the train and proceeded to walk up the track on the left side of the train, towards the engine, for the purpose of carrying out the orders of the conductor, and that, when he reached the door of the car where the section-foreman and his crew of track-laborers were at work, he was suddenly and without warning struck by a cross-tie which had been thrown off from the left side of the train in violation of the custom; that at the previous stops no cross-ties had been thrown off on the left side of the train; that the place where the plaintiff was struck was near a large town, and that the right of way on both sides of the track at that point was used by the public as a highway and pathway, and that the section-foreman and the plaintiff both knew of this; that the section-foreman failed to give any warning before throwing off the cross-ties; and that the defendant was negligent in the following particulars: in permitting the cross-ties to be thrown off on the left side of the train and on the side opposite to that formerly used; in permitting the cross-ties to be thrown off without giving any warning to the plaintiff and others who might be passing, and in failing to maintain a lookout for that purpose; in permitting cross-ties to be thrown off at a time when the section-foreman knew that the plaintiff was to pass the car in going up to the engine for the purpose of obeying the orders which the section-foreman heard the conductor of the train give to the plaintiff, without giving warning to the plaintiff; in permitting cross-ties to be thrown off without maintaining a lookout and giving warning, when the section-foreman knew that the right of way, at that point was used by the public in general. It is alleged that at the time of his injury the plaintiff was in the exercise of ordinary care and did not anticipate and could not foresee any of the negligent acts complained of; that he took the precaution to walk on the left side of the track, knowing that no cross-ties had theretofore been thrown off on that side of the track. The trial judge sustained a general demurrer to the petition, and the plaintiff excepted.</p>

<p>Complaint; from city court of Tliomasville — Judge W. H. Hammond. January 9, 1920.</p>

<p>Attachment; from city court of Dublin — M. H. Blacksbear, judge pro bac vice. January 24, 1920.</p>

<p>Action for damages; from Laurens superior court — Judge Kent. February 28, 1920.</p>

<p>Trover; from Bartow superior court — Judge Tarver. February 24, 1920.</p>

<p>1. Where a demurrer to a petition contains general and specific grounds, and the court passes an order on the demurrer, there is no presumption that the ruling was based on any particular ground, but the order will be treated as passing on the entire demurrer and on all its grounds. McOlaren v. Williams, 132 Ga. 352 (64 S. E. 65).</p> <p>2. In a suit for libel, where the defendant admits the use of the language charged, and fails to enter a plea of justification, but files a demurrer setting up specifically that the words used in the article were not per se libelous, and that no special damages were asked for, and this demurrer is overruled, and no exception taken to such order, the ruling on the demurrer becomes the law of the case, in so far as it amounts to an adjudication to the effect that the plaintiff is entitled to relief and that the words used in the article were libelous per se. The only question in such a case remaining for the jury to determine is the amount of the damages to which the plaintiff is entitled. Ga. Nor. Ry. Co. v. Hutchens, 119 Ga. 504 (46 S. E. 659) ; Johnson v. Wheeloclc, 63 Ga. 624; Hiller v. Central of Ga. Ry. Co., 16 Ga. App. 855(3) (87 S. E. 303). The defendant by his demurrer having invoked a ruling upon the precise question indicated, and having failed to preserve exceptions taken pendente lite, or to enter direct exceptions upon such ruling, he cannot, upon exception to the judgment overruling the motion for new trial, be heard in effect to attack the judgment on the demurrer, which he himself invited, and which had become the law of the case. American Grocery Co. v. Kennedy, 100 Ga. 462 (28 S. E. 241).</p> <p>3. The charge of the court relative to the mitigation of damages, by proof of the absence of malice, was in accordance with the provisions of § 4429 of the Civil Code (1910), to the effect that in all actions for printed or spoken defamation, malice may be inferred from the character of the charge, and that, should its existence be rebutted, such proof shall go in mitigation of damages. Shipp v. Story, 68 Ga. 47.</p> <p>4. The court did not err in rejecting testimony offered by the defendant for the purpose of showing the absence of special damage. In an action for general damages on account of words spoken or written about another which are libelous per se it is not necessary to allege or prove special damages; and where they are not claimed, the defendant is not entitled to show the absence of special damage.' Civil Code (1910), § 4433; 25 Cyc. 509.</p>

<p>1. Where goods sold and delivered under a written contract are of the character described in the contract, the purchaser cannot, after having inspected the goods and given a note in payment therefor and in discharge of his obligation under the contract as expressly stipulated in the note, and for no other consideration, defend against a suit on the note upon the ground that the goods were bought under an oral agreement as to quality, at variance with the written contract, which oral agreement was violated by delivery of goods of a different quality from that orally contracted for.</p> <p>2. While it is true that, after goods have been contracted for and delivered to the purchaser and he has inspectéd them, there may be a new agreement by the terms of which the seller is to make good any breach of warranty or repair any defect in the goods sold, as a consideration for the execution of a promissory note for the purchase-money by the purchaser, yet where there is no such consideration and a note is given for the purchase-money, expressly stipulating that it is given in compliance with the purchaser’s obligation under the original contract, it is no defense to the note that the purchaser was deceive 1 and fraudulently induced to execute it, by a fraudulent representation to him by the seller that the goods which were of the description mentioned in the original written contract could by a simple process be easily altered and converted into goods of the description mentioned m the alleged oral agreement.</p> <p>3. The evidence tending to establish such defense having been properly ruled out, aijd a verdict for the plaintiff having been properly directed, it was not error to overrule the defendant’s motion for a new trial.</p>

<p>Action on insurance policy; from Fulton superior court — Judge Bell. April 21, 1919.</p>

<p>Action on insurance policy; from city court of Yaldosta — Judge Cranford. September 13, 1919.</p>

<p>Motion to enter judgment; from Walton superior court — Judge W. L. Hodges presiding. August 19, 1919.</p>

Action for damages; from Chatham superior court — Judge Meldrim. January 1, 1920. From the petition it appears that when crossing a railroad-track in a switchyard, as directed hy a watchman, the plaintiff was struck and injured by cars which had been stationary, and which, while he was on the track, were struck and set in motion by an engine.

<p>Action for damages; from Henry superior court — Judge Searcy. February 14, 1920.</p> <p>Mrs. Bellah’s clothes caught fire and she was burned when attempting to extinguish fire in grass, which she alleged was caused by sparks and cinders thrown out from an engine of the Southern Bailway Company, and she sued for damages. The action was originally against the railway company and the Federal director-general operating its railroad on the date of the injury (March .23, 1919), but on demurrer the petition was amended so as to proceed against the director-general alone. In the argument in support of the general demurrer it was contended that it appeared from the petition that the proximate cause of the injury was the plaintiff’s voluntary act, and not negligence on the part of the defendant, and that the case of Wilson v. Central of Georgia Railway Co., supra, is distinguishable from this case, but that if the decision in that case controls this case, it should be reviewed and overruled; and counsel requested that the Court of Appeals certify the question to the Supreme Court in order that the decision in that case might be reviewed. It was contended also that under the act of Congress of March 21, 1918, section 10, the Federal director-general of railroads is not subject to suit in a case of this kind; that he can be sued only upon the liability of a common carrier.</p> <p>The petition alleges: that the plaintiff’s dwelling house is about 350 yards from the right of way of the railroad, and her land extends to the right of way; that along thé side of the right of way her land is woodland, and her woodland extends from the right or way to within 50 yards of her dwelling house; that the ground on her woodland was covered with grass, leaves, and straw; that there was an open field covered partly with cornstalks and dry grass which extended from her woods practically all the way to her dwelling house, and that the railroad right of way along the side of her land was covered with dry grass, leaves, and straw. It is alleged that while a passenger-train operated by the defendant was passing the plaintiff’s land, the engineer in charge of the engine caused it to emit and throw out upon the railroad right of way large sparks of fire and burning cinders which caused the grass, leaves, and straw upon the right of way to catch fire, and the fire spread to the plaintiff’s land and burned over her woodland and field to a point within 50 yards of her home; that the wind was blowing towards her house and caused the fire to spread so rapidly as to place her home in imminent danger of being destroyed, and it would have been burned had it not been for the hard work of herself, her son, and a negro man who’ came to their assistance; that she, “ seeing the fire moving so rapidly towards her home and believing that the same would be consumed, and expecting every moment that it would be consumed, undertook to do what she could do to prevent the fire from reaching it, and to this end seized a pine brush and began to thrash the fire with the same in an effort to extinguish the same and to prevent the further spread to her home, and, while making this effort to arrest the progress of said fire, her clothing caught fire and she ivas badly burned.” ’ It is alleged that the defendant was guilty of negligence in failing to clean off from the right of way the grass, leaves, and straw, in failing to have the engine equipped with a proper spark-arrester, in failing to have the spark-arrester in good condition and properly adjusted, and in causing an unnecessary exhaust of the engine while it was passing the plaintiff’s land, and that these acts of negligence were the direct and sole cause of the plaintiff’s injuries.</p> <p>The verdict was for the plaintiff, the defendant’s motion for a new trial was overruled, and the movant excepted.</p>

<p>Action for malicious prosecution; from city court of Carrollton — Judge Beall. February 5, 1920.</p>

<p>Action on contract; from Bibb superior court — Judge Mathews. April 3, 1920.</p>

<p>Action on contract; from Hancock superior court — Judge Park. March. 23, 1920.</p>

<p>Action on contract; from Glynn superior court — Judge Summerall presiding. May 19, 1920.</p>

<p>Action on bond; from city court of Atlanta — Judge Keid. March 29, 1919.</p>

<p>Exceptions to auditor’s report; from Fulton superior court— Judge George L. Bell. October 14-, 1919.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

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

<p>Certiorari; from Fulton superior eohirt — Judge Pendleton. November 26, 1919.</p>

<p>Complaint; from Campbell superior court — Judge Hutcheson. February 5, 1920.</p>

<p>Action on insurance policy; from city court of Sparta — Judge Johnson presiding. January 31, 1920.</p>

<p>Forfeiture of recognizance; from Fulton superior court — Judge Humphries. February 11, 1920.</p>

<p>Eviction; from Polk superior court — C. C. Bunn, judge pro hac vice. March 22, 1920.</p>

<p>Action on insurance policy; from Colquitt superior court — Judge Thomas. April 6, 1930.</p>

<p>Certiorari; from Chatham superior court — Judge Meldrim. May 18, 1920.</p>

<p>Trover; from Clinch superior court — Judge Summerall. June 12, 1920.</p>

<p>Action for damages; from city court of Atlanta — Judge Reid. June 12, 1920.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Action for damages; from city court of Hinesville — Judge W. C. Hodges. June 7, 1920. h '</p>

<p>Action for damages; from city court of Savannah — Judge Rourke. June 11, 1920.</p> <p>Application for certiorari was denied by the Supreme Court.</p> <p>The action was for damages in the sum of $20,000 on account of personal injuries alleged to have 'been caused by the derailment of a railroad-train upon which the plaintiff was a passenger. He obtained a verdict for $155, and made a motion for a new trial, in which he alleged that the verdict was “grossly inadequate and so small as to justify the inference of gross mistake or undue bias on the part of the jury.” There was testimony to the effect that the derailment caused the back of the plaintiff’s head to strike a wash-basin, and that total deafness of his right ear and impairment of the hearing of his left ear resulted. The evidence was conflicting as to the extent of his injuries.</p> <p>Another ground- of the motion for a new trial was as follows: “ The verdict of the jury finding for the plaintiff the sum of $155 is illegal and void, for that the said verdict is a chance or quotient verdict, arrived at by adding together the several amounts which each juror deemed proper and dividing the total by twelve, under an agreement on the part of said jurors to abide by the result thus ascertained and return the same as their verdict, . . all of which will more fully appear by reference to the affidavit . . hereto attached.” • From this affidavit it appears that twelve slips of paper were found on a table in the jury-room immediately after the rendition of the verdict, that various amounts were written on ten of them, and that on the others were written “no damages” and “ 00, ” and that a twelfth of the total sum was $154.58; [rat there is nothing further to indicate that there was an agreement by the jurors “to abide by the result thus ascertained.”</p> <p>Cited in motion for rehearing (as to inadequacy of damages) : Anglin v. City of Columbus, 128 Ga. 469.</p>

<p>Complaint; from Jefferson superior court — Judge Hardeman. June 8, 1920.</p> <p>The action was upon a check signed by W. J. Murphree, the defendant, payable to the order of A. W. Williams, and indorsed by Williams, payment of which had been stopped by the maker. The defendant in his answer admitted the execution and delivery of the check, its indorsement by Williams, that the plaintiff, Wrens Motor Company, was the owner of the check, and that he had stopped payment of it and refused to pay it; and he assumed the burden of proof and pleaded failure of consideration, alleging that the check was given for the price of a well which Williams had contracted to bore and equip with pipe and a pump so that it would give perfect satisfaction, but that the pump would not work and the well was useless; that the plaintiff was not a bona fide purchaser of the check, but purchased it with notice of the failure of consideration; that at the time of the purchase of the check the plaintiff was in possession of such facts, circumstances, and information as would put an ordinarily prudent man upon inquiry. The plea concluded as follows: “And now, specially pleading in abatement, defendant avers that if in the trial of this case it is determined that the plaintiffs are bona fide purchasers for value, without notice, of said check, and a judgment and verdict are rendered in their favor against defendant, then and in that event defendant would have a right of action against-A. W. Williams, who originally indorsed said check over to the plaintiffs, knowing at the time of said indorsement that the consideration had failed and that payment of said check by the bank upon which it was drawn had been ordered stopped by this defendant, and that he, the said Williams, could not recover from the defendant upon said check. Therefore, in order to prevent a multiplicity of suits and to preserve the defendant’s rights of subrogation and to insure the protection and enforcement of the rights of all parties, defendant prays that the said A. W. Williams^ the indorser of said check, be made a party defendant, in said case, and that said suit abate until said A. W. Williams is properly made a party and served in said case, so that the judgment obtained, if such judgment should be obtained, would be valid and binding.”</p> <p>On the trial J. E. Sims, of the plaintiff company, was introduced as a witness for the defendant, and testified that the cheek sued upon was purchased by the plaintiff from A. W. Williams for a valuable consideration on or about December 21, 1918, and that it was his custom to deposit checks not later than two days after they came into his possession. The check, which was introduced in evidence, was dated November 15, 1918. There was no additional evidence. The court directed a verdict for the plaintiff. The case came to the Court of Appeals on exceptions to the overruling of the defendant's motion for a new trial.</p> <p>The motion for a new trial was upon the grounds that the verdict was contrary to law and the evidence, and also upon the following grounds:</p> <p>“1. Because the court erred in refusing to abate the suit until A. W. Williams, the indorser of the check sued upon, could be made a party defendant in said case.</p> <p>“2. Because the court erred in refusing to compel the plaintiff to make A. W. Williams, the indorser of the check sued upon, a party defendant in said case.</p> <p>“3. Because the court erred in refusing to allow the defendant, W. J. Murphree, to testify that the consideration supporting the check sued upon had failed, either in whole or in part.</p> <p>“4. Because the court erred in repelling all testimony which tended to establish that the consideration supporting the check sued upon had failed either in whole or in part.</p> <p>“5. Because the court erred in directing a verdict for the plaintiff in the said case.”</p> <p>The brief of the evidence contains, after the words “W. J. Murphree, defendant, sworn (Direct examination),” a statement as follows: “ The court refused to permit witness to testify in respect to the consideration for which witness had signed and delivered the check to A. W. Williams; the court refused to permit witness to testify that the consideration supporting the check sued upon had failed either in whole or in part; the court would not permit witness to testify in reference to any defense that witness may have had against A. W. Williams as the payee of .the check sued upon, and the court ruled that the defendant had not overcome the presumption that the plaintiff was a bona fide purchaser of the check, for value, without notice, and before maturity, and therefore could not be let in to his defense against the payee, A. W. Williams, or set up such defense against the plaintiff.”</p>

<p>Action on insurance policy; from city court o£ Savannah — Judge Freeman. May 25, 1920.</p> <p>Joe Gallivitoch, a minor, by next friend, sued the Provident Life and Accident Insurance Company on an insurance policy, alleging that Frank Gallivitoch, his father, was injured in an accident, and as a result thereof died on March 25, 1915, and that “proof of the death of the said Frank Gallivitoch has been furnished to said company as required by the terms of the said policy.” The petition was filed February 23, 1920, and the defendant filed a demurrer, the first and fourth grounds of which were as follows: “1st. That the said petition set forth no cause of action in favor of said plaintiff against this defendant.” “4th. The fourth paragraph of said petition fails to allege what injuries said Frank Gallivitoch received and how he was injured.” The petition was amended, and the defendant filed a demurrer on the ground: "that the said petition as amended sets forth no cause of action in favor of said plaintiff against this defendant;” "that said petition as amended shows the said cause of action to be barred under the terms of the policy, which provides that no cause be brought at all unless brought within two years from the expiration of the time within which proof of loss is required by the policy.” A second amendment to the petition was offered, which alleged that promptly after the death of the insured the policy was placed in the hands of an attorney for collection, and that on June 11, 1915, the company wrote to the said attorney as follows: "We have received proof in connection with the death of Frank Gallivitoch, accompanied by your letter of the 5th inst. This claim will be given prompt and careful attention, and we will advise you further concerning the same within a few days. You can rest assured that we will not delay matters any longer than is necessary;” that on June 22, 1915, the company wrote to the said attorney as follows: "With further reference to this claim about which the writer called on you in person recently, will say that this matter is now having our attention and has been referred to Dr. W. W. Lee for disposition. Dr. Lee will call upon you within the very near future with the view of closing the matter. We will certainly appreciate any assistance shown the Doctor in effecting an amiable [amicable?] and fair settlement of this claim;” that "upon receiving these letters he expected a settlement of the said policy by the defendant company, and relying upon the promises in said letters and shortly thereafter he enlisted in the service of his country and served with the marines in France during the World' War, being absent from Savannah for several years;” that “upon petitioner’s return in November, 1919, very much to his astonishment he found that no settlement had been made, and promptly took the matter up with the defendant company, whereupon they promised to pay a portion of the policy but refused to pay the entire amount of the liability when this suit was hied.” To the allowance of this amendment objections were hied, two only of which are necessary for consideration here: “1st. That- the letters set forth in said proposed amendment were not such letters as would mislead the plaintiff into believing that this claim would be paid, thereby lulling him into security. 2d. That these letters were written within three months after the death of the insured, and that suit was not filed until nearly five years after the death of the assured and after the writing of said letters.” The court sustained these objections; the proposed amendment was disallowed; and grounds 1 and 4 of the original demurrer and grounds 1 and 2 of the demurrer to the petition as amended were sustained, and the petition was dismissed.</p>

<p>Tlie evidence in this case is conflicting, and the first jpant of a new trial will not he interfered with.</p>

<p>That the defendant imputed to the plaintiff a crime punishable by law is sufficiently alleged in the averments of the petition in this case as to the charge of having removed a stone corner or stake placed at the corner of a land lot by surveyors; and the petition sets out a complete cause of action.</p>

<p>Action on contract; from city court of Bainbridge — Judge Spooner. June 23, 1920.</p> <p>The petition of Hagan Grocery Company against Nobles alleged: On or about October 10, 1918, petitioner purchased from W. H. Nobles one ear of Indian River oranges) consisting of 400 crates, to be shipped to petitioner on December 10, 1918, at Donalsonville, Ga., for which it was agreed that petitioner was to pay the defendant on delivery $3.85 per crate, or a total of $1,540.00, said fruit to be in prime condition and of good merchantable quality. Said contract of. sale was duly confirmed about October 10, 1918, and petitioner, after purchasing said oranges, sold them to it's trade before they arrived at Donalsonville, assuming that the defendant would perform his contract. The defendant did, on December 10, 1918, ship to petitioner a car of oranges, consisting of 400 crates, which arrived at Donalsonville about December 13, 1918, in a badly damaged condition, about 50 per cent, of them being rotten and damaged, and having been damaged several days before being o shipped to petitioner. The oranges shipped to petitioner were practically worthless, ’ and about 50 per cent, of them were unsalable, and petitioner declined to accept them and requested the defendant to ship another car in order to complete his contract with petitioner; which the defendant declined and refused to do. By reason of the failure of the defendant to perform his contract, petitioner was compelled to go into the market and buy other oranges at much higher price in order to fill its contract with its customers, and it suffered a loss by reason of so doing, in the amount herein sued for.</p> <p>The case came to the Court of Appeals on exceptions to a non-suit and to the exclusion of certain testimony of A. G-. Hagan, president and general manager of the plaintiff company. This testimony was as follows:</p> <p>(a) Hpon objection of the defendant, on the ground that “there is nothing, in the contract which would indicate that the shipper was put on notice that the oranges had been sold by Hagan,” the court excluded testimony of Hagan that when he declined to accept the damaged car of oranges hé asked the defendant if the defendant could not ship another car of oranges to him, and told the defendant that he had to have the oranges, that he had already sold the car of oranges to the trade, before the car was delivered, “ and Mr. Nobles knew at the time that the oranges had already been sold;” that Nobles said he was sorry, but he had shipped all he was going to ship.</p> <p>(5) Hpon the ground stated above the court excluded testimony of Hagan as follows: “ Mr. Nobles knew at the time I made the contract for the car of oranges that I would sell them to the trade before the same were delivered.”</p> <p>(c) The court excluded testimony that the witness was “familiar with the custom in buying and selling oranges, and it is a universal custom of trade for'the wholesaler or jobber who purchases oranges by the carload lot to sell the same in advance to the retail trade before the oranges are shipped.” The ground of objection to this testimony is not stated.</p> <p>(d) The court excluded testimony of Hagan that he “tried to get Indian Eiver oranges from several brokers” after the defendant refused to ship another car to him; that he was unable to get them nearer than Jacksonville, Florida, or at any other place at all than Jacksonville; and that they were worth at that time $5 per- crate at Jacksonville. This testimony was excluded on the ground that “the price would be at the place of delivery, and not at some other point;” that “the plaintiff was restricted to proving the market price on the date of the breach of the contract and when oranges were purchased in lieu of those which the seller had declined to furnish, at the time and place of sale.”</p> <p>(e) Additional testimony to the same effect as that set out in the preceding paragraph was excluded. It is alleged that this testimony was relevant because it showed that the plaintiff was compelled to pay more than the contract price, and consequently suffered damage in the sum of $1.15 per crate.</p> <p>(/) Testimony of Hagan, that before he went into the market and bought other oranges, he sold at $5.50 per crate the carload of oranges purchased from the defendant, was excluded on objection of the defendant on the ground that there was no pleading on which to base such testimony, and that it was not shown that these oranges were sold at the time the contract was made with the defendant, or that at the time it was made he was put on notice of the sale.</p> <p>(g) Upon'the ground that there was -no pleading to justify the testimony, the court excluded testimony of Hagan that the contract price he was to pay the defendant for the oranges was $3.85 per crate, that he was. afterwards compelled to pay $5 per crate for “these same oranges in Jacksonville, Florida, and that on account of having to repurchase the oranges after the defendant had failed to deliver them his company lost $1.15 per crate.</p> <p>(h) The court excluded testimony that “there was no market price for Indian River oranges in Donalsonville, Ga., during the month of December, 1918, for the reason that there were none to be had at that point and they could not be bought in Donalsonville.”</p>

<p>Refusal to sanction a certiorari upon tie ground that the verdict and judgment were contrary to tire evidence, unsupported by evidence, and contrary to tlie principles of justice and equity, was not error where a part of the evidence, which was conflicting, supported the verdict.</p>

<p>Trover; from city court of Albany — Judge Clayton Jones. July 10, 1920.</p>

<p>Distraint'; from city court of Carrollton — Judge Beall. Jury 1,- 1920.</p>

<p>One riding by invitation and gratuitously in another’s automobile can not recover for injury caused by the other’s negligence in driving, unless it amounted to gross negligence.</p>

<p>Complaint; from Chatham superior court — Judge Meldrim. July 7, 1920.</p>

<p>Certiorari; from Whitfield superior court — Judge Tarver. September 11, 1920.</p> <p>Por alleged “ damage to two pair of automatic scales while in transit via the Southern Railway lines from Dalton to Gaines-ville, Georgia,” November 9, 1919,.suit for $65 was brought in a justice’s court by A. L. Edwards against W. D. Hines, director-general of railroads. The plaintiff alleged: “that the said Southern Railway Company, its agents and employees, were negligent in handling the cases containing the automatic scales; that plaintiff called the attention of the agent at Dalton, Ga., to the fact that the eases contained automatic scales, and paid an excess freight rate thereon, and that said railway company, its agents and employees, handled said cases, in a rough manner by negligently and carelessly throwing said cases into and out of baggage cars while in transit, in such a way as to injure the delicate, fragile scales, the nature of said scales being fully known to the defendant, its agents and employees; that said cases were also marked thus: ‘ Glass, handle with care. ’ ” The trial of the case resulted in a judgment against the defendant for the amount sued for. The defendant sued out certiorari, assigning error as follows: “ Petitioner avers that said court erred in holding that the local laws of the State prevail over the rules issued by the director-general of railroads, and in entering up-judgment as aforesaid; all of which rulings and findings of said court the petitioner assigns as error.” The certiorari was overruled and the defendant excepted.</p> <p>From the magistrate’s answer to the certiorari it appears that the-plaintiff testified as follows: “On the 9th day of November, 1919, I purchased a first-class ticket from Dalton, Ga., to Gaines-ville, Ga., over the Southern Eailway, and delivered to the baggage-master at Dalton, Ga., for shipment, three pair of automatic scales to be checked. I told the baggage-master what the trunks contained, and described the nature of the scales to him. In addition to this, each trunk had a printed sign on it, fully exposed to view,, marked, “ Glass, Handle with Care. ” The trunks in which the scales were contained were very strongly built, and the scales were securely bolted to the trunks. They were so well packed that with any ordinary handling it would have been impossible to have broken them. In these trunks the scales can be slid down an ordinary stairway without breaking them; and unless they were handled very roughly they would not break. Judging from the injury they received, it is my opinion that they were thrown out of cars and roughly and negligently handled. When the scales were checked to Gainesville the agent required excess charges, and I paid the excess charges which he demanded. I was not asked by the agent to place a valuation on the scales, and for that reason I did not do so. These scales were packed in the trunks by myself, and I know that they were in good condition when delivered to the Southern Eailway Company. When I got to Gainesville, Ga., and received the three trunks containing the scales from the agent at Gainesville, Ga., and opened the trunks in the presence of the baggage agent at Gainesville, I found that two pair of the scales were badly damaged. I called the attention of the baggage agent to the damaged condition of the scales, and asked the agent what to do about it. The agent told me to have the scales repaired, and that the railroad company would pay me the cost of .the repairs. I had the scales repaired, and the actual cost was $65, which amount was paid by me, the plaintiff, and I filed a claim with the railway authorities for this amount and payment was refused and suit brought. ” The plaintiff introduced a pamphlet showing a picture of the scales, and illustrating how they were bolted to the trunks, how they were built, and what the damage consisted of; illustrating also how hard it was to injure the scales by ordinary handling. The trunks had steel bands on the corners as a protection. The plaintiff further 'testified that he carried the scales as samples, and that it was not customary to sell and deliver the scales he carried, but that he carried them for samples only. On cross-examination he admitted that he had at some times sold his sample scales, but said that this was not his custom; that the reason he had three pair of scales with him on this particular trip was that he intended to put another salesman on the road at Gainesville, if he could procure another man to work for him, and that he intended to deliver one pair of the scales to that man; that he always carried two pair of scales, which he used for demonstrating purposes.</p>

Complaint; from city court of Yaldosta — Judge Cranford. September 15, 1920. Mrs. W. M. Wildes sued Joiner, alleging in her petition as amended that he was indebted to her in the'sum of $234, besides interest, “upon a certain account which was based upon a mutual course of dealings between said plaintiff and defendant, which is more fully explained by a certain bill of particulars” attached to the petition. The petition was filed March 23, 1920.

<p>When objection to a ruling is not made in such a way as to put the court and opposing counsel upon notice that the objection is insisted upon, an assignment of error upon the ruling is without merit.</p>

<p>1. The general rule that requires a master to provide a safe place of work for his servant is applied where the place of work is permanent, and not where the servant’s work is constantly shifting to different places and the place of work is being transformed as a direct result of tlie servant’s labor.</p> <p>2. Faulty construction of tlie road-bed of the railroad was not the proximate cause of the death of a railroad employee killed by the falling of a car which, by reason of the giving way of the road-bed, had sunk into a hole, and which, with full knowledge of the danger and the risk assumed, he was attempting to pull out of the hole when the car turned over and fell upon him.</p>

<p>Trover; from city court of LaGrange — W. T. Tuggle, judge pro hac vice. October 19, 1920.</p>

<p>Certiorari; from Putnam superior court — Judge Park. October 26, 1920.</p>

<p>Action on contract; from Colquitt superior court — Judge Thomas. October 5, 1920.</p> <p>Application for certiorari was denied by the Supreme Court.</p> <p>The action was for breach of a written contract for the sale of certain land by W. M. Rowell, the defendant, to Harrell Realty Company, the plaintiff, for a certain sum to be paid “ on or before the first day of December, 1918, ” the defendant agreeing .to execute title to the land on such payment, and further agreeing to accept part of the purchase-price in cash ($500) and the remainder in specified deferred payments. The first day of December fell on Sunday. From the petition it appeared that on the following Monday the plaintiff tendered to the defendant $500 in cash and promissory notes for the deferred payments, and demanded that the defendant execute a bond for title to the land, and that the defendant refused to do so, stating that he “ had already sold and conveyed a portion of the land described in said contract, and . . was unable to comply with the terms of said contract for the sale of the land. ” The petition further alleged that on November 8, 1918, the defendant conveyed to a named third person a certain part of the land, which on October 22, 1918, the defendant had contracted to sell to the plaintiff as stated above. A demurrer to the petition was overruled, and the case came to this court on exceptions to that judgment. One of the grounds of the demurrer was that “the petition shows upon its face that the alleged tender to the plaintiff was not made within the time prescribed by the contract. ” This court held that the demurrer should have been sustained on this ground, and reversed the judgment of the court below. In the opinion of the Court of Appeals it was said: “As we construe this petition there is but one question to be decided, and that is whether by statute the time limit granted'in the option may be extended one day longer than that named in the option, because the last day named in the option happened to fall on Sunday. ” Rowell v. Harrell Really Go., 25 Ga. App. 585 (103 S. E. 717).</p> <p>In the petition it was alleged that on November 30, 1918, the plaintiff sold the land in question to Albert E. Harrell, and in the afternoon of that day notified the defendant of this sale, stating that owing to the lateness of the hour it was impracticable to complete the contract that day, and that as December 1, 1918, would be Sunday, the plaintiff would tender to the defendant $500 in cash, and notes in accordance with the terms of their contract, on the second day of December, “ as provided by law; to which proposition the defendant assented. ” After the remittitur from the Court of Appeals had been sent to the court below and before it had been made the judgment of the lower court, the plaintiff offered an amendment to the petition, in which amendment it was alleged that as soon as the land had been sold by the plaintiff to Albert F. Harrell on November 30, 1918, the plaintiff was ready, able, and willing to comply with the option contract made with the defendant, and waited at the plaintiff’s office for some time, expecting the defendant to come there, as he had on the previous day promised to do, for the purpose of permitting the plaintiff to comply with the terms of the option contract on its part, and exercised due diligence to locate the defendant, but failed to do so until about seven o’clock in the evening of that day, and then informed the defendant over the telephone that the plaintiff was ready, willing, and able to comply with the terms of the said option contract, but, on account of the lateness of the hour, feeling that it would be more convenient for them to close the matter on the following Monday (the next day being Sunday), stated to the defendant that if he preferred to wait until Monday it would be agreeable to the plaintiff; “ and accordingly petitioner and the defendant mutually so agreed;” and “the fact that said option contract was not complied with on the part of both the plaintiff and the defendant on said date was not due to any fault on petitioner’s part, but was due entirely, so far as the petitioner was concerned, to petitioner’s inability to locate said defendant at any time during said day, to wit, the 30th day of November, 1918, until after night and after business hours. ” It was further alleged in the amendment that it was unnecessary for the plaintiff to make the tender at all, because it was relieved from so doing by the conduct of the defendant in selling and conveying a part of the land to certain third persons on November 8, 19lá, thereby putting it out of the defendant’s power to comply with the terms of the said option contract. The amendment was disallowed in an order in which the judge said: “ Upon an examination of the original petition it appears that this amendment is simply an amplification of the original record and can not change the situation. However, the ruling of this court was based upon the other question raised, and not upon the point announced in the appellate court decision. The decision of the Court of Appeals is controlling. ” The plaintiff excepted to this judgment. •</p>

<p>Indictment for larceny; from Charlton superior court — Judge Summerall. July 24, 1920.</p> <p>Hickox was tried at the October term, 1919, upon an indictment found at the March term, 1918, which charged the larceny of a black barrow hog, marked crop and underbit in one ear and swallow-fork in the other, the property of H. N. Mizell. The motion for a continuance was based on the absence of Fred Jones, who, it was stated, had been subpoenaed as a witness for the defendant. In his showing for a continuance the movant said: " I expect to show by this witness that I bought this hog from him that it is alleged I took. There is one witness hero, I think, that knows I bought some hogs from him, but he doesn’t know about this particular hog. I do not know why this Mr. Jones is not here; he is not absent by my consent or procurement. . . There are lawyers prosecuting me in this case, — Col. McQueen; he was before the last term of the court, . . and he told me it was continued by consent of the court, and not to have the witness here. I don’t know as he said anything about the case not being tried. He did tell me that the case was not going to be tried. I reported that fact to the witness, and we went back home Monday morning. I was here yesterday all day. Mr. McQueen told me that the case would not be tried in that court; he didn’t tell me that it would never be tried; . . he just told me it was continued by consent of the court. I told this witness not to come'at this term of the court, but'to wait until the next term. He was here at the last term of the court. On Monday the clerk subpoenaed him, and I gave it to him myself. The subpoena called him to come from term to term. . . I did not make an effort to get an order from the court to attach this witness. . . I have made no effort at this court to get him here. . . He is supposed to be in Savannah. . . I don’t know where he is. . . I have seen letters from there from him. . . I have notified him since the last term of court that I would need him at the next term of court. I did not ask my - lawyers this morning to get him here. . . I bought a bunch of hogs from him, 12 or 15, about four years ago — I don’t remember what year, but it has been two or three years. . .. They were wild hogs. The dogs bayed them in the woods, and he showed them to me; he just showed me the bunch, and this hog I killed was in the bunch. I killed the hog on Saturday evening. I don’t remember exactly the marks; there were two. . . I have talked to the witness and know whát he will swear about this particular hog that I am billed for; he will swear that he sold me the hog as described in this indictment. . . .Mr. Jones will swear that he sold me all his claim. He did not know how many he owned. . . I don’t know what he will swear about this hog I was billed with; he won’t swear that he sold me the hog that I am billed for stealing.” The movant stated that the absent witness lived in Camden county until shortly before the last term of court, that he expected “ to try and have ” the witness present at the next term, and that the motion was not made for delay.</p> <p>The trial judge, in his certificate approving the grounds of the motion for a new trial, said: “After the within motion for a continuance was completed, the court continued the cgse until the next day. I told the attorney for the defendant, in defendant's presence, that if he wanted the absent witness for the defendant, he had better get an attachment for him. There was no attachment requested or issued for said absent witness, and the case was called the next day for trial and tried. Counsel for the defendant, on the day said case was tried, stated he was not ready for trial, but he did not renew his motion for a continuance.''</p>

<p>Accusation of possessing intoxicating liquor; from city court of Valdosta — Judge Cranford. November 12, 1920.</p>

<p>Indictment for assault with intent to murder; from Lincoln superior court — Judge Walker. November 4, 1920.</p>

<p>Where the name of the witness is not stated in a ground of a motion for a new trial complaining that certain testimony of a witness was admitted, the ground will not be considered by this court.’</p> <p>It not appearing that the court failed to give in charge the law as to circumstantial evidence, it is not ground for a new trial that the court did not charge on that subject in certain language set out, especially since it does not appear that there was a request so to charge.</p> <p>Refusal to direct a verdict is not ground for a new trial.</p>

<p>Indictment for burglary; from Floyd superior court — Judge Wright. November 6, 1920.</p>

<p>Accusation of cheating and swindling; from city court of Lees-burg— Judge Martin. November 10, 1920.</p> <p>Nig Alford was convicted upon an accusation which charged, that under an oral contract to work for J. E. Matthews as a farm hand, he procured $1 from Matthews with intent not to perform the services contracted for, and that without good and sufficient cause he failed and refused to perform the services or return the money. The case came to this court on exceptions to the overruling of a motion for a new trial, in which he alleged that the verdict was contrary to law and the evidence.</p> <p>The only witness was the prosecutor, Matthews, who testified that the defendant worked for him during the year 1918, and, on or about December 1 of that year, made a contract to work for him for the next year as a wages hand on a certain plantation, and received from him $1 advanced on the faith of this contract, and that thé defendant did not perform the contract and did not return or oifer to return the money. The witness further testified: “ He left my place some time in December, 1918, without my knowledge and without my consent, and did not show up for work on January 1st, nor did he give me any reason for not coming to work. He worked on the farm rented to me for some time after I made the advance. . . I do not know positively that the defendant was not sick or in jail, but I do know that I did not give the defendant any cause to fail or refuse to carry, out his contract. He did not send me word that anything w&/ wrong with him, nor did he make any complaint' to me as to why he did not want to perform the services contracted for. The first time 1 saw the defendant after he left my place was in the spring of 1919. He told me that he was working for Mr. Hodges that year. I demanded that he pay me my money, all that was due me, which aggregated a total of $140. I never demanded the payment of the $1 advance, but did demand all the money that was due me. I went to Mr. Hodges three times in an effort to get him to pay the account of the defendant, and offered to settle the same for $100 cash. I sustained a loss of $1 by the failure of the defendant to perform his contract. I got what he made on the farm he rented from me in 1918, but this did not pay what he owed me. ”</p> <p>The defendant’s statement on the trial was as follows: “ 1 worked with Mr. Mathis the year 1918; he took all I made. 1 ■never made any contract to work with him the year 1919. I moved to Mr. Hodges and had a one-horse farm there. Mr. Mathis came over to see me and tried to get me to quit my farm with Mr. Hodges and work for him. I told him I could not do it. He told me that if I did not he would take a warrant out for me for the $140 that he said I owed Mm. He never did tell me that he advanced me $1 on a contract, but he tried to get me, just before he took out the warrant, to quit my farm and help him in digging wells. He told me if I would do it he would pay Mr. Hodges what I owed him. I refused, and he then had me arrested. He never advanced me any money on a contract, and never claimed he made a contract with me, but he said he would prosecute me for $140. I am not guilty. ”</p>

Indictment for larceny from house; from Wilkes superior court — Judge Walker. November 27, 1920. Application for certiorari was denied by the Supreme Court. The prosecutor, Lizzie Luckey, testified: “Lamb Hill (the defendant) came to my house about 12 o’clock and went to the hydrant in front of the house to get a drink of water. He asked me to lend him a dipper. I was sitting on the porch, right at the door. I told him the dipper was in the house.

<p>Indictment for forgery; from Barrow superior court — Judge Cobb. October 28, 1920.</p> <p>The accused'was convicted under the second count of the indictment, which charged him with having in his possession a certain forged false cheek and draft, knowing it to be false and forged, with the intent to pass it fraudulently upon a named bank, upon which it purported to have been drawn. Grounds 4 and 7 of the amendment to the motion for a new trial are as follows:</p> <p>(4) Because the court erred in charging the jury as follows: “To this indictment Boy Jackson enters his plea of not guilty. He, at this time, is alone on trial. The effect of that plea is that he says that he is not guilty under either count, and that makes the issue for you to determine, whether he is guilty under the first count, or whether he is guilty under the second count, or whether he may be guilty under one count and not guilty under the other count. His general plea of not guilty makes the issue with the State, which he says is not guilty at all under either count.” This charge was error for the following reasons: (a) Its wording was so confused and ambiguous that it did not clearly present the issues to be tried. .(&) It in effect instructed the jury that the defendant was guilty of at least one of the offenses charged in the indictmefit, and the only question submitted by it was whether the defendant should be found guilty of either one or more of the offenses charged in the indictment; said charge absolutely excluding from the jury the question of the defendant’s innocence of all of the offenses charged in the presentment, (c) The said charge was error for the reason that it instructed the jury that the defendant said his plea of not guilty made the issue with the State that he was'not guilty at all under either count in the indictment, but did not instruct the jury that this was really the issue made by said plea; in other words, the said charge instructed the jury that the defendant himself said that such was the effect of his plea of not guilty, but did not even intimate that the court instructed the jury that this claim of the defendant was a correct or proper claim. Nowhere in his charge did the court correct the errors above alleged, by proper instructions to the jury.</p> <p>(7) Because the court erred in charging the jury as follows: “ You will find in the first count of the indictment that the check described therein is a check which is alleged in the indictment to have been indorsed, and you will determine whether the check which has been indorsed, in evidence before you, corresponds in all material particulars to the check which is described in the count. You will find that the check which is described in the second count is not described as having been indorsed, and if you find that the check, which was indorsed, in evidence before you, corresponds with the check which is described in the second count in all particulars, except that the check as described in the second count does not refer to the indorsement, I charge you there still may be a conviction under the second count, if the check in evidence before you corresponds in all other particulars with the check described; that the indorsement of the check would not be a material matter under the allegations in the second count. ” This was error, for the reason that the indorsement on the check was a material matter under the allegations in the second count in the indictment, and the fact that the second count described an unindorsed cheek, and the check offered in the evidence was an indorsed check, constituted a material and fatal variance between the allegations of the second count and the check introduced as evidence to support that count.</p>

<p>Accusation of cheating and swindling; from city court of Sparta — Judge Lewis. November 12, 1920.</p> <p>On the ground that an opinion as to what had been proved was expressed by the court in the phrase, “$3 was received by the defendant in this case, at the time he did receive it, ” the defendant, in an amendment to the motion for a new trial, alleged that the court erred in charging the jury that before they would be authorized to find the defendant guilty, they “would have to believe that the money charged in this accusation, $3, was received by the defendant in this case, at the time he did receive it, with the intent to defraud the prosecutor. ”</p>

Accusation of larceny; from city court of Macon — Judge Johnson presiding. November 13, 1920. The accusation charged the larceny of certain lumber consisting of painted molding for billboards and of framing lumber, the property of F. H. Powers.

<p>. Indictment for larceny from house; from Bibb superior court — Judge Terrell presiding. December 4, 1920.</p>

<p>Accusation of possession of intoxicating liquor; from city court of Houston county — Judge Biley. November 1, 1920.</p>

<p>Accusation of violation of motor-vehicle law; from city court of Macon — Judge Gunn. November 18, 1920.</p> <p>The accusation charged that Willie Devereaux operated a motor-truck upon a public highway at a greater speed than ten miles per hour on approaching and on traversing a sharp curve of the road. On the trial Wilse Birdsong testified for the State as follows: “ I saw the defendant on the Milledgeville road, driving a Ford car at a rate of speed of 28 miles per hour. ITe approached and went around a curve at the rate of 28 miles per hour. There was a building on the side of the road. One couldn’t see around the curve, on account of said building. The Milledgeville road is a public highway of the State of Georgia. This affair occurred in Bibb county, Georgia. I don’t know the degree of the curve about which I have testified. I don’t understand angles and degrees as regards curves. Standing where the curve begins, one can see a,head not more than 20 feet on the bed of the road. Disregarding any buildings or other obstacles on the side of the road, one can only see ahead about 20 feet on the bed of the road. In traversing the curve you go about 75 feet before entering a stretch of the road. I can draw from memory a diagram showing about how the road curved.” The witness drew a diagram, which at the conclusion of his testimony was admitted in evidence, over objection of the defendant. The witness testified: “ I didn’t draw diagram to scale. I don’t know anything about scales with regard to diagram and maps. I have never made a road map. The diagram is made from memory only. I didn’t make any measurements. J can not swear positively that this is a correct diagram. I swear, though, from the best of my knowledge and belief, that the road turns as shown on the diagram. ” There was no -additional evidence.</p> <p>The defendant’s objections to the admission of the diagram were: it was not made by an expert; it was only on opinion of the witness; it was not made on the scene, but was made from memory only; it was not made from data and figures made by the witness at the scene of the curve; it was not made to scale; it was immaterial and irrelevant; it was not proved to be a correct representation of the curve, or a correct diagram of the road at the place of the curve and at the time the offense was alleged to have been committed. In the motion for a new trial it is alleged that the court erred in admitting the diagram in evidence over these objections.</p> <p>In the other special grounds of the motion for a new trial it is alleged that the court erred in admitting, over the objection that the testimony .was irrelevant- and could not in any way show the sharpness of the curve, the statements of the witness Birdsong that “there was a building on the side of the road;” that one could not see around the curve, on account of the building; that, standing where the curve begins, one can see ahead about 20 feet and not more than 20 feet on the bed of the road, and that in traversing the curve one can go about 15 feet before entering a stretch of the road.</p>

<p>Indictment for assault with intent to murder; from Appling superior court — Judge Highsmith. October 30, 1920.</p> <p>On April 15, 1920, Hattie Howard was tried upon a special presentment filed on the 12th of the same month, which charged that on March 17, 1920, she assaulted and shot Lucile Pearce with a pistol and gun, with intent to murder. The verdict was guilty of “shooting another.”</p> <p>In the motion for a continuance it is stated: The shooting occurred at Surrency, in Appling county, Georgia, in the presence of Lillie Bell Norwood and Estelle Walker, who both reside in Surrency, and who would swear that Lucile Pearce had a razor in hand and was chasing the defendant and trying to take the defendant’s life with it, and the defendant procured a pistol from Estelle Walker and fired the shot at Lucile Pearce, and that the defendant did not start the trouble between herself and Lucile Pearce. The defendant has no other witness that was present or knows the facts about the case, whom she can summon to prove them. The defendant had subpoenas issued for these two witnesses on April 13, 1920. Immediately after the indictment was returned she delayed no time in trying to procure the attendance of these witnesses “ by having them served to attend” as witnesses at this term of court. This motion is not made for delay only; .these witnesses have not left the county or the place where they were, by consent or procurement of the defendant; she expects to have them present at the next term of the court and to be ready for trial then.</p> <p>On the hearing of the motion the sheriff testified that he sent a bailiff to see about these'witnesses; that he had two subpoenas in his hands for service, and the witnesses could not be found; that one of them had not been at work “there” since the day of the shooting. Another witness testified that she resided at Surrency, where the shooting occurred; that the two witnesses mentioned by the defendant left after the shooting and on the same day and had not been seen since; that they had been living at Surrency until that time, but had not been back, and that she did not know where they were, and did not know of anybody else who knew. The defendant testified that after the shooting she-was arrested on a warrant, and was put in jail, had a trial, and was put back in jail; that when she was brought to jail she “ got them to get these witnesses, to have them subpoenaed,” told the deputy sheriff, who arrested her, to do this, and he told her he would see that all her witnesses were at court; and when she got out (about two weeks before making this motion) she had the clerk to issue subpoenas. As to the whereabouts of these witnesses she testified: “I do not know where they are.”</p>

<p>Conviction of manslaughter; from Kichmond superior court — Judge Hammond. December 11, 1920.</p> <p>White was convicted of involuntary manslaughter in the commission of an unlawful act. From the evidence it appeared that between 12 and 1 o’clock in the day an automobile running at unlawful speed in the City of Augusta struck a child who had just run out of a factory gate into the street, and killed the child, knocking him about 10 feet off, after which it “slowed up ” and continued on its way. An eye-witness took down the number of the machine, but did not recognize the driver. The defendant was seen by others near that time and in that neighborhood in an automobile bearing the same number. Alibi was the main defense.</p>

<p>Certiorari; from Dougherty superior court — Judge Wilson. December 3, 1920.</p>

<p>Indictment for receiving stolen goods; from Wilkes superior court — Judge Walker. December 5, 1920.</p> <p>1. A solitaire diamond ring valued at $1,600 was stolen by a boy, Charlie Means, and sold or pawned by him to Charley Pharr for $1. Pharr, after Means had been convicted of larceny of the ring, was indicted for receiving stolen goods. On Pharr’s trial Means in his testimony admitted that he stole the ring, and said: “ I sold the ring to Charlie Pharr — pawned it to him for $1. He told me, if anything came up about the ring, to come back to him and he would let me have it back. I did not tell him where I got the ring. I don’t know how long he kept the ring. I was in the pool-room, and'he came up to me and said, ‘ I want to see you,’ . . and when I went out there he said there was a strange boy out there wanted to buy this ring for $2. I told him not to sell the ring, that I would get it back Saturday, and he said, ‘ No,’ he had to have his money; and he went in the pool-room and got the boy and sold him the ring. . . I did not know the boy he sold the ring to. . . Charlie gave me $1 and he kept the other. I did not agree for him to sell it to the other man.” Others testified that Pharr told them of the pawning of the ring to him by Means, that he said he “got uneasy about it and wanted to get his money back,” that he “ thought there was something wrong with it and he wanted his money out of it,” and got a strange negro boy out of a picture show and sold it to the boy for $2, and he did not know where the boy was.” In his statement at the trial the defendant said: “This boy pawned me the ring for $1, and I carried the ring to him and he gave me my $1 back, and when he gave me the dollar back I didn’t have no more to do with it. . . I had to give it back to him, and he sold it.” Witnesses for the defendant testified that he had a good reputation for honesty, “ the reputation of being an honest negro.”</p> <p>2. In the motion for a new trial it is alleged that the court erred in charging the jury as follows: “However, if you should find — and that beyond a reasonable doubt — that the defendant is guilty, under the rules of law and the evidence, facts, and circumstances of the ease, you should find him guilty though you should find there is evidence of good character. All these things are to be considered by- you.” It is alleged that this “ in effect excluded from the jury the right to find that the evidence of good character might have, in itself and in connection with the other evidence, generated a reasonable doubt;” that it in effect instructed the jury that if the evidence as to the crime satisfied them beyond a reasonable doubt, they should not even consider the evidence of character, and that it confused the jury as to what had gone before. This part of the charge was immediately preceded by instructions as follows: “ If you find there is any evidence going to prove good character of the defendant in the case, evidence of good character is like any other substantive fact. If you find there is evidence of good character that might be sufficient to generate in the minds of the jury a reasonable doubt as to the guilt of the accused, it must be considered along with the other evidence, facts, and circumstances of the case; if not sufficient to generate a reasonable doubt in the minds of the jury, it should be considered along with all the other evidence, facts, and circumstances of the case in passing pn the issues made hero, to ascertain whether or not the defendant is guilty as set out in the indictment.”</p>

<p>Motion to change venue; from Taliaferro superior court — Judge Walker. December 17, 1920.</p> <p>Dink Butler and Fate Fews were jointly indicted for the murder of W. B. Bainey; they were convicted, their motions for a new trial were overruled, and the judgments overruling the motions were reversed by the Supreme Court, that court holding that the evidence was not sufficient to authorize the verdicts. 150 Ga. 353 (103 S. E. 809). In October, 1920, they moved for a change of venue, the motion was denied, and the case came to the Court of Appeals on exceptions to that judgment.</p> <p>In support of the motion for change of venue the following affidavits were presented to the judge of the superior court: J. A. Beazley deposes as follows: He was attorney for defendants in the above-stated case. Immediately following the shooting there was grave danger of lynching, and the sarnie was narrowly averted by some of the citizens of Crawfordville and the officers. These citizens promised the crowd which surrounded the jail the night of the shooting that, if they would not molest the negroes, they would see that a special term of court was called and the negroes speedily tried and executed. A special term was called for January 3d. Deponent heard repeated remarks that they were going to get the negroes. At the time of the trial feeling was very high on the part of the friends of the dead man and others bent upon mob violence. Deponent heard repeated threats to lynch the negroes himself. He heard, through reliable sources, of plans and threats to lynch them. He was warned a number of times by friends that an effort would be made to do this deponent violence and there was grave danger at that time of violence being attempted upon the negroes and their counsel. Deponent knows positively that this danger still exists, and while he does not believe the danger to deponent himself is as grave as it was, he does know that the danger to the defendants is greater since the Supreme Court decision. There is now a deliberate determination and plan to get them when they are brought back for trial! At the last August court, when it was thought defendants might again be tried, deponent was warned by a number of persons who claimed to know their plans, and depondent does believe that these informants know the plans. These informants even gave the details of the plans to lynch defendants at the last August court if they should have been brought back for trial. Deponent has kept in close touch with the situation. He is intimately acquainted with the situation to-day. He swears positively that there is not only a grave danger of a lynching if defendants are brought back to Taliaferro county for a trial, but he swears that efforts to lynch the defendants are, in deponent’s opinion, an absolute certainty. Deponent himself has heard the threats. He has had reports on the situation from those who were in position to know the facts and who are reliable, and he knows that an attempt to lynch is certain and said efforts will be made with such determination as to be almost certain of success. Defendants show that they are now in jail at Augusta, and that the superior court convenes there in November, and a trial could be had at that court. Police protection will be ample and the trial will be removed from the scene of the tragedy. This affidavit made to be used as evidence in the above-stated ease. Sworn to October 25, 1920.</p> <p>W. J. Sturdivant deposes as follows: He is sheriff of said county. In December, 1919, Will Eainey and Dink Butler got into an altercation, and Will Eainey received a mortal wound, from which he died in several days. There were a number. of shots fired by both Eainey and Butler, according to the testimony at the trial. On the night of the homicide, when the negroes were placed in jail at Crawfordville, a crowd gathered around the jail and there was grave danger of mob violence. A number of prominent citizens of the town came out and a lynching was averted. The next day the negroes were carried to Washington, Ga., where they were kept till the trial on January 3, 1920. They were convicted of murder — Butler sentenced to hang, Pews given life sentence. The case was appealed to the Supreme Court, and the court reversed the lower court, holding that the evidence was not sufficient to convict. The defendants are now in jail at Augusta for safe-keeping, as it is very probable that violence would be done or attempted on them if kept here. Deponent is conversant with the situation in the county now, and believes most strongly that if an attempt is made to bring the defendants back to this county for trial, an attempt to lynch them will be made and might succeed. This has been rendered more certain by the decision of the higher court; and parties, realizing that a conviction of murder may not stand, would be more likely to resort to violence than before. Deponent knows that these threats have been made and believes they will be attempted and possibly carried out.</p> <p>Affidavits of Dr. O. F. Portwood, a practising physician of Crawfordville, W. C. Chapman, chairman of the board of county commissioners, and C. Parham, were to the same effect as those set out above. Parham deposed that at the last August court he “ was invited to join in a plan and purpose to take the negroes away from the sheriff at Barnett when he brought them up, it being thought then that they would be tried at the August term. of court,” that the danger of lynching them was then great, and the same danger still continued to exist. In answer to the following questions, Ralph W. Golucke, clerk of the superior court, testified as follows: Q. “ Do you consider it likely that violence will be done the defendants if brought back here for a trial?” A. “ Well, if I were asked to point out a leader who 1 thought would lead a crowd to do so, I don’t think I could do so.” Q. “ Do you think it likely that violence would be done them?” A. “ Well, not tmless the Rainey boys did it. I do not think any one else would do so. The Rainey boys might. Outside of them, I don’t hardly think any others could get together enough to lynch the negroes. The people in. Mr. Rainey’s community want to see them punished, but know of no one who would act as a leader to do violence. I heard a lot about lynching them just after the killing of Mr. Rainey, and at the trial here and at the last August term of the court, when people thought they would be brought back for trial.”</p> <p>No evidence was offered in behalf of the State.</p> <p>The judgment upon the motion was as follows: “ On hearing the within motion for change of venue and carefully considering the cause (motion), I refuse the motion. I do so without doubting in the least any of the facts or evidence of any witness offered by movants; but I went in person to the county just a few days after the killing, met with many people of the county in a public meeting, I then called a special term of the court, tried movants, and, from my own observation and knowledge of the case and feeling of the people, and knowing the good people of Taliaferro county (and there are many), I can’t get my consent to say to the outside world that these good folks won’t give movants a fair trial. For these reasons I have to deny the motion. I therefore refuse to grant a change of venue. This December 17, 1920.”</p>

<p>Action for damages; from city court of Washington — Judge Sutton. June 12, 1920.</p> <p>1. Exceptions pendente lite, assigning error on the refusal to grant a continuance, are specified in the main bill of exceptions and were sent to this court as a part of the record material to an understanding of the errors complained of, and the main bill of exceptions says: “ and now comes the defendant and assigns error on said judgment and ruling of the court and says that the court erred in refusing such continuance upon each and every of the grounds set out in the motion for continuance and in .said bill of exceptions pendente lite.”</p> <p>2. The action was for damages on account of personal injuries which the plaintiff alleged were received by him while in the employment of the defendant railroad company in the capacity of track supervisor on November 18, 1918. His petition as amended alleges: About 7 o’clock a. m. of said date petitioner was ordered by defendant through its general manager, C. L. Wickersham, to make a trip of inspection over defendant’s railroad on a motor-car to safeguard an east-bound passenger-train, because the track was dangerous and defective; the roadbed being new, wet, and insufficient to safely carry the trains operated over it at that time. He responded to the orders of defendant, but objected to making said trip over said railroad in its dangerous condition, but got up a crew of five men and the only motor-car available which appeared to be in good and safe condition, but when petitioner had gone about 6 miles from Washington, and while he was still in Wilkes county and was traveling at the rate of about 8 or 10 miles an hour, said motor-car mounted the rail to the left, left the railroad-track, and came to a sudden stop, and threw petitioner in front of the car between the rails on the ties, with several of the laborers on top of him. Defendant was negligent in numerous and divers ways which contributed to the injury of petitioner, and especially negligent because it furnished petitioner with a defective and broken motor-car to be used in going over its railroad. Defendant, through A.- C. Pounds, one of its track foremen, had removed from said motor-car a set of good wheels, axle, and equipment, and put in their place the defective wheels, axle, and equipment as aforesaid, and had left said motor-car on one of its tracks as if in good condition and ready for use, and said defective condition was so obscure that petitioner could not discover the defects; and there was no duty of inspection of said motor-car upon petitioner, and the first knowledge he had of its defective condition and its insufficiency for use was when it left the railroad-track and threw him between the rails on the cross-ties and rails, and injured and damaged him as herein shown. Defendant was negligent because said motor-car was set up on a track in position to be operated by defendant through its servants (named) while it had under it a defective wheel, spindle, and axle, and allowed it to be used with several rollers lost or removed from the journal of said car, which was a latent defect known to defendant, or which should have been known to defendant by inspection, but which was unknown to petitioner, and there was no duty upon petitioner to know of said latent defect.</p> <p>In ground 2 of the amendment to the motion for a new trial it is alleged that in charging the jury that “ the master is bound to exercise ordinary care in the selection of servants, and not to retain them after knowledge of ineompetency,” the court erred, because. “ there is no evidence in the record to which to apply said charge, there is no evidence in the record of any incompetent servant being employed by this defendant, nor that any such servant was retained in its employ after knowledge of his incompeteney came to this defendant.”</p> <p>3. The instruction set out in division 3 of the decision is alleged to be error, “(1) because it was an expression of opinion on the part of the court as to what had or had not been proved on the trial of said case; (2) because, the case on trial being an action for damages by an employee of this defendant, no presumption arises or could arise, under the facts of this case, against this defendant as a matter of law; and (3) because, if a presumption had arisen or a presumption did arise at any time during the progress of the trial, against this defendant, and such presumption was rebutted, the duty of the jury would have been to find a verdict for the defendant, and, with such presumption rebutted, the question whether the plaintiff was entitled to recover any amount would not be left to the minds and consciences of enlightened jurors, but they should have been instructed to return a verdict for the defendant, under those circumstances.”</p> <p>4. The amount of the damages awarded against the defendant was $17,500. Upon the mode of arriving at the damages the court, in charging the jury, gave the following instructions, complained of in grounds 7, 8, 9, and 11 of the motion for a new trial:</p> <p>(7) “ That will be a question for you to arrive at, as to what the plaintiff’s expectancy will be, taking into consideration his age and manner of living, his present health, his increase in wages or decrease in wages, the reduction of his earning capacity, or any other matter satisfactory to yourselves, taking into consideration these rules of law which I have given you in charge and the evidence given you as to whether his wages might be increased by his increased ability, in determining what the plaintiff’s loss under this item of damages would be — -that is, lost earning capacity, past, present, and future.” It is alleged that this was error because as applied to the facts of the case it was confusing, and it did not give any rule or direction by which to arrive at the plaintiff’s expectancy, or on which to apply the testimony to arrive at a definite sum to measure the damage arising from lost earning capacity.</p> <p>(8) “ When you arrive at the number of years he woulcl be entitled to live, and when you determine the wages or earning capacity of the plaintiff in the case, then you would multiply the number of years of the plaintiff’s expectancy by his earning capacity, using any method suitable to yourselves, and figuring on a basis of 7 per cent, interest; and in this manner you would arrive at a lump sum, which would be the item of damages caused by the lost earning capacity, past, present, and future.” This is alleged to be error for the following reasons: it was confusing; it did not give any rule for arriving at the present value of the plaintiff’s earnings during the period of his expectancy; the words, “ and figuring on a basis of 7 per cent, interest,” tended to impress the jury with the idea that the correct rule for arriving at the amount of loss to the plaintiff by reason of his lost earning capacity was to multiply the number of years of his expectancy by his annual or other earnings and then add to that sum interest at the rate of 7 per cent.; as applied to this case it did not give any rule by which to measure the damage caused by lost earning capacity arising out of the injury; the words, “using any method suitable to yourselves,” tended to impress the jury with the idea that any sum they might arrive at in any way they might conclude to figure, whether the method was legal or illegal, would produce a verdict which was legal and proper.</p> <p>(9) “In any event you will not reach separate items of damages, but you will take into consideration the previous item of pain and suffering, present, past, and future, and combine the two items, and in the event you do find for the plaintiff, combining your computations on the basis of 7 per cent, interest, you would render your verdict for one lump sum, which would cover the entire.damages in the case.” This is alleged to be error because, from the words, “combining your computations on a basis of 7 per cent, interest,” the jury were left to infer that when they had arrived at an amount as to any item of damages, they might add to it interest at 7 per cent.; and this charge tended to impress on their minds the idea that they should calculate interest at 7 per cent, on the annual earnings of the plaintiff or such other sum as they might determine as a means of arriving at the amount of damages for which they might return a verdict.</p> <p>(11) “I charge you that in computing the items of damages in this case, past, present, and future damages, you can use any method practicable to yourselves, figure it on an interest basis of 7 per cent., and reduce the damages to a present cash value.” This is alleged to be error because the court did not in this part of the charge or elsewhere give to the jury any correct rule for determining the correct measure of damages by reason of lost earning capacity, or direct them how to arrive at the present value of the plaintiff’s life, or the present value of his lost earning capacity, and because the words, “figure it on an interest basis of 7 per cent.,” tendered to impress on the jury the idea that they might be allowed to multiply the plaintiff’s expectancy by his annual earnings and add to that sum interest at the rate of 7 per cent, as a means of arriving at the damages by reason of lost earning capacity.</p>

<p>Indictment for larceny; from Bacon superior court — Judge Summerall. July 34, 1930.</p>

<p>Action for money had and received; from city court of Sanders-ville — Judge Jordan. October 2, 1920.</p> <p>Application for certiorari was denied by the Supreme Court.</p> <p>The contentions of the parties were stated in the charge of the court as follows: “J. A. Brown has brought an action against the Zapf Realty Company; he sues for money, having a receipt. The plaintiff alleges in 1919, in August, he deposited with the Zapf Realty Company the sum of $514, to be applied to the purchase price of a certain tract of land, provided the title to the 'land was merchantable, or provided the owner of the land could make good title, and that if the title was not merchantable or made merchantable within a reasonable time, then the money was to be refunded by the Zapf Realty Company to him. The plaintiff in this case contends, under the terms of the contract, he had until the 5th day of September, 1919, to look into the title and ascertain the condition of the title; he alleges he found various incumbrances outstanding over the land; he alleges that the Zapf Realty Company and the owner of the land did not within a reasonable time remove these incumbrances, so as to make the title to the land merchantable; he demands that his money be refunded and the defendant declines to return the money, and he now brings his suit for $514. The plaintiff further alleges that this contract was procured from him by fraud; that the defendant’s agent represented to him at the time the contract was signed that there was no lien or incumbrance of any character over the land; he alleges if he had known the land was incumbered he would not have entered into the contract, and after ascertaining it was incumbered he demanded his money and thereby [sought] to rescind the contract. The Zapf Eealty Company admits receiving the money, but contends that within a reasonable time, as provided by the contract, the title to the land the plaintiff agreed to buy was made merchantable and put in good shape, and that by the time the plaintiff was required to make his next payment upon the land the title was then in good condition and in merchantable shape. The defendant alleges that the plaintiff really breached the contract. In the motion for a new trial the foregoing statement of the defendant’s contentions was complained of as follows: “ This instruction excludes from the jury the contention of the defendant that before the second payment was due, plaintiff offered to pay the entire amount of purchase-price and take a conveyance of title to land bargained for in the contract. This instruction is further error because, if the facts stated by the court as contentions of defendant constituted a good defense in law, the defendant was entitled to a verdict for the reason that the contentions of defendant as stated by the court were undisputed.”</p> <p>The court charged: “You are to ascertain from your knowledge of human nature and the circumstances of this ease what was a reasonable time for the Zapf Eealty Company to make the title to the land merchantable.” The court then gave the following instruction which is complained of: “ If you believe from the evidence in this case that within a reasonable time after September 5th the Zapf Eealty Company, or the owner of this land, put the title in merchantable shape, that that was done within a reasonable time, I charge you in this case that the plaintiff could not recover; that the amount so paid by him, $514, would go to the purchase-price of the land; that he could not recover. I charge you, however, that if you believe from the evidence in this case that this title was not put into merchantable shape within a reasonable time after September 5th, and after an examination disclosed the incumbrances or liens over the land, if yon find it was not put in merchantable shape within a reasonable time, then in this case the plaintiff would have the right to recover, and the obligation would be upon the defendant, the Zapf Realty Company, to refund the deposit of $514 so received.” It is alleged: “This instruction is error for the reason that, under the terms of the contract, possession of the land, as well as the second payment, was not due until January 1, 1920, and the contract by its terms says the first payment is to bind the trade until January 1, 1920, to cause title to be made merchantable. This instruction is error for the further reason that immediately upon disclosure of lien on land, plaintiff, under his own testimony, repudiated the contract, refused to await any time, reasonable or otherwise, and brought suit for money had and received. The court should have submitted to the jury the question of repudiation of the contract by the plaintiff.”</p> <p>After charging as above, the court gave the following instruction which is complained of: “If you believe in this case the seller of this land, or the agent of the Zapf Realty Company, made representations that there were no incumbrances upon this land nor liens outstanding against it, and if you furthermore believe that the plaintiff, Brown, entered in on that representation in purchasing the land, and you believe the representations were untrue, then I charge you the plaintiff in the case would have the right to rescind his contract and recover for $514, that is, if you believe the contract was entered into by fraudulent representations as to the condition of the title.” It is alleged: “This instruction is error for the reason that there is no evidence of any fraudulent representations. This instruction is error for the further reason that there is an absolute harmony in the evidence of the plaintiff and the defendant that the lien objected to by the plaintiff was mentioned and specifically pointed out to plaintiff by defendant at the time of execution of the contract; and movant contends that said charge led the jury into believing that fraud liad been used by the defendant, when there was no evidence upon which such a charge could be founded.”</p> <p>The charge proceeded as follows: “The defendant contends, of course, that the contract was not founded upon fraud; that no misrepresentations were made as to the nature and character of the title prior to the time the contract was signed. Now, as to the language of the contract, the material parts of it, it is as follows: ‘I have to-day deposited with the Zapf Eealty Company $514 as part of the main purchase money to bind this trade until January 1, 1920, having until September 5, 1919, as time being allowed for examination of title by my attorney. If said title is merchantable I agree to make settlement as above stated, but if said title is not merchantable, and cannot be made merchantable within a reasonable time, cash payment is to be refunded to me and contract canceled.’ Time is the essence of this contract. I charge you it was the duty of the plaintiff under this contract to look into and examine this title by September 5, 1919; that was the time under the contract to look into it; and then it was his duty to disclose to the Zapf Eealty Company any defects, obligations, or incumbrances to the title, and it was incumbent upon the Zapf Eealty Company, or the owners of the land, to cause these incumbrances to be removed within a reasonable time after September 5, 1919. As I have said to you, you are the judges of what is a reasonable time under the circumstances of this case. You may consider the nature or character of the trade; you may consider all the evidence in this case and all the circumstances and all the conditions in order to ascertain what was a reasonable time. If the defendant did not within a reasonable time remove all incumbrances, then the plaintiff ought to recover in this case. On the other hand, if you believe within a reasonable time (of which you are to be the .judges) these incumbrances were removed and this title was made merchantable, then you should find for the defendant.” The charge concluded with instructions as to the form of the verdict.</p>

<p>Complaint — appeal; from Chatham superior court — Judge Meldrim. August 10, 1920.</p> <p>Gregory was discharged from the employment of the Terry Shipbuilding Corporation, and sued the corporation for $100, as salary from April 15, 1919, the date of leaving the defendant’s employment, to May 1, 1919. The defense pleaded is set out in substance in the following opinion. The plaintiff obtained a verdict for the amount sued for; and, the defendant’s motion for a new trial being overruled, the movant excepted. ''</p> <p>1-5. As to those grounds of the motion for a new trial which precede ground 12 it is not necessary to add to what is said in the decision. In ground 12 complaint is made as to language of the trial judge in regard to a letter from the plaintiff to the defendant’s superintendent, Secknicka, dated after notice of the plaintiff’s discharge, the contents of which are not set out in the motion. The judge said: “ I will admit this letter. It appears that it required an answer and contains a statement which, if found true, the defendant had an opportunity to deny.” It is alleged that this constituted an expression of opinion favorable to the plaintiff’s side of the case, and was confusing and misleading to the jury, in that it imposed upon the defendant an obligation of answering a letter which called for no reply.</p> <p>6. It is complained that the court charged the jury that the burden was on the plaintiff to show, to the satisfaction of the jury and by the preponderance of the evidence, that he was wrongfully discharged, “without explaining what was meant by ‘preponderance of the evidence, ’ and without furnishing to the jury any guide or test by which to determine where the preponderance lay or how the preponderance was to be determined.”</p> <p>7-10. The charge of the court, after stating contentions of the defendant at length, and instructing the jury as to the burden on the plaintiff, proceeded as follows: “ On the part of the servant (the plaintiff in this case) there is an implied obligation to enter the master’s service and serve him diligently and faithfully, to obey all his reasonable commands, treat him respectfully, and to perform- the duties incident to his employment honestly, with ordinary care and due regard to his master’s interest and business, and that he is competent to discharge the duties for which he- is employed, that he possesses the requisite skill, and that there is nothing that unfits him physically or mentally for the duties incident to his employment. ”</p> <p>The court then gave the following instruction, which is alleged to be error: “ In order to justify a master in discharging a servant, the servant must have been guilty of conduct that amounts to a breach of some express or implied provision of the contract of hiring. Anything less than that will not amount to a legal justification or excuse. ” It is contended that the court erred in so charging “without anywhere in the charge pointing out-to the jury what would have constituted such a breach of contract, in the light of the contentions made in defendant’s plea. ”</p> <p>The court then gave the following instructions which are complained of: “ The question as to whether the master has waived a breach of contract by the servant by retaining him in service after knowledge of such breach is a question of fact for the jury. Prima facie it is a waiver, and a condonation is presumed; but, if there are circumstances shown that fend to establish a reasonable or proper excuse for delay, it is for the jury to say whether in fact the breach was condoned. If, however, such breach has been in fact condoned, it cannot subsequently be relied on by the master to discharge the servant from the master’s service. ” It is alleged that these instructions were inapplicable to the issues in the case and not warranted by the pleadings or the evidence, and were argumentative and calculated to impress the jury with the idea that the court favored the plaintiff.</p> <p>The charge proceeded as follows: “ If you find that the plaintiff-was incompetent, then the master would have the right to have discharged him. If you find that the plaintiff made false representations as to his qualifications, and that the master acted upon those misrepresentations and took the plaintiff into his employment, and when he found that he, the plaintiff, did not possess those qualifications, the defendant discharged him on that account, then the plaintiff could not recover. ”</p> <p>The court then gave the following instruction, which is complained of: “ But if j'ou find that the plaintiff entered the service of this defendant company under a contract, and if, because of the fact it suited the convenience of the company to change its business, or if, for any other reason not growing out of the fault of the plaintiff, it saw fit to discharge the plaintiff from its service, 3rou would be authorized to find that there was a breach of the contract of hiring, and then you would determine what damages, if any, the plaintiff ’ has sustained by reason of the breach of that contract, and you would be authorized to find a verdict for that amount. ” It is alleged that this instruction “ contained an intimation to the jury that the defendant company had changed its business and discharged the plaintiff from its service for that ■reason, there being no pleadings or evidence on which to properly predicate such a charge; ” that the- court did not in this instruction, or elsewhere in the charge, give any rule or measure by which to determine what ^damages, if any. the plaintiff sustained by reason of his discharge; and that'the court did not in this instruction, or elsewhere in the charge, point out to the jury, on the question of damages, that the defendant would be entitled to a credit or offset against plaintiff’s damages for whatever amount the plaintiff earned in other employment or might by proper application and due diligence have earned in other employment from April 15 to May 1, 1919, the period of time involved in the suit.</p> <p>The charge proceeded as follows: “If, on the other hand, the representations made were false, or the man was incompetent, or for any of the reasons set out in this plea this defendant, the master, was justifiable in discharging the plaintiff, then your verdict should be for the defendant. Look and see what the contract of hiring was; see whether or not there was a -breach of that contract upon the part of the defendant, and what damages, if any, the plaintiff has sustained. If you find that the contract was made, and you determine there was a breach of that contract by this defendant, and you find that the amount of damage? was fixed, or you can ascertain them from the evidence, then you would be authorized to find for the plaintiff. If, on the other hand, you find that the plaintiff in this case made false representations, and that this defendant, upon finding that the representations were false, discharged him, and if that was the reason of this discharge, or'if, for any other good reason set out in this plea, this company, exercising its right to discharge him, was justified in discharging him, then your verdict should be for the defendant.”</p>

<p>Complaint; from city court of Bichmond county — Judge Black. September 20, 1920.</p> <p>The trial judge, on motion of the plaintiff, after striking amendments “ A ” and “ D ” to the defendant’s answer, struck that part of the answer which set up that the Industrial Lumber Company was the owner of the $6,692.55 note sued on, and excluded the defendant’s testimony to that effect; and it is alleged that the striking of this part of the answer was error, “ such issue as to title being necessary in order to let in defendant’s defense as set out in his original plea and in the amended pleas, Exhibits A and D, to the effect that said note sued on had been settled with the consent of the plaintiff since the institution of this suit, and there was no liability on defendant, who had received nothing therefor; it was without consideration as to him. ”</p> <p>The amendment referred to as “Exhibit A” was as follows: Since the institution of this suit (September, 1914) the defendant has become a creditor of plaintiff. In a suit by the Citizens & Southern Bank, a creditor of the Irish American Bank, defendant was held liable on an accommodation note for $1,500, dated December 1, 1913, made to the Irish American Bank, and defendant was held and bound to pay the same, and defendant paid off said judgment thereon against him on or about February 2, 1918, and became subrogated to the rights of the Citizens & Southern Bank against the Irish American Bank and its receiver, and is in equity an assignee of said claim against the Irish American Bank, the plaintiff and its receiver being bound to pay the same; and to the extent of said note for $1,500 defendant is entitled to a set-off, defendant paying in settlement $724.15. Defendant further says that the note for $6,692.55 referred to has been settled in bankruptcy proceedings of the Industrial Lumber Company. The court, on motion of the plaintiff, struck this plea; and error is assigned on this ruling.</p> <p>The amendment referréd to as “ Exhibit D ” contained substantially the allegations made in the preceding amendment, and alleged that after the filing of the original plea the note for $6,692.55 sued on was claimed by the Industrial Lumber Company, and the defendant’s liability thereon was settled, the receiver of the Irish American Bank or his attorney being present a:rd consenting to the settlement; that the defendant did not receive any money from the bank, plaintiff, thereon, and “ did not pay the credit of money made thereon; ” that this was paid by the Industrial Lumber Company and the note was settled by the trustee in bankruptcy of that company since the institution of this suit; wherefore defendant denies all liability on said note. The plaintiff moved to strike this plea, “on the ground that if the defendant had been held liable by a competent court, it was res adjudicata as to him, and did not make a claim against the Irish American Bank or the receiver. ” The court struck this plea, and error is assigned on this ruling.</p> <p>On the back of the note for $6,692.55, referred to above, a credit of $3,781.80 cash, dated June 14, 1913, was followed by the entry, “Note ex. for $3,120.00 int. $120.00, June 16.” Weinges, bookkeeper of the receiver, testified that this note said, “ Note exchanged for $3,120 on June 16, 1913, ” and that this amount was due on the note. He further testified that he did not make the entry, and did not know “what happened in 1913. ” Counsel for the defendant moved to rule out the statement of the witness that there was such an entry on the note, upon the ground that the word “exchange” did not appear in the entry, and the witness was not authorized to testify that “ ex ” meant “ exchange, ” particularly as he did not make the entry and did not know what happened at the time the entry was made; that ordinarily the construction of a 'writing was a question of law for the court, and if there was any ambiguity it was a question for the jury. The court overruled the motion, and this is assigned as error. Other assignments of error relate to the failure and refusal to give certain instructions to the jury.</p>

<p>A bill of exceptions does not assign error on exceptions pendente lite by stating that “ error is hereby assigned upon the rulings of the court as contained in the exceptions pendente lite.”</p> <p>A ground of the motion for a new trial is too incomplete to be considered where it alleges as error that the court failed to state to the jury the defendant’s contentions so that the jury could understand them but does not contain what the court charged, and the charge of the court is not attached to the ground as an exhibit.</p> <p>Relationship which would disqualify the judge from presiding is not sufficiently shown.</p> <p>(a) Relationship to the judge will not be presumed to be prejudicial to a party so related.</p>

<p>1. The suit was properly brought in the name of the owner of the property for the use of the real-estate broker.</p> <p>2. It was not error to disallow the proffered amendment to the defendant’s answer.</p> <p>3. The court erred in rejecting evidence offered by the defendant to show that, because of nonperformance of a condition precedent as to which the writing was silent, the alleged contract sued upon was no contract at all. Luke, J., dissents.</p>

<p>Motion to open default; from Warren superior court — Judge Walker. October 18, 1920.</p>

<p>Certiorari; from Fulton superior court — Judge Bell. October 14, 1920.</p> <p>For a commission as broker, C. A. Forsyth sued J. E. Porter in the municipal court of Atlanta, alleging in the petition that on March 1, 1920, the defendant entered into a written contract constituting the plaintiff his sole agent for 15 days from date to negotiate a sale of certain real estate in the city of Atlanta, Georgia, known as No. 667 South Boulevard, for $4,000, on terms set out in the contract, and that during the said agency, on March 9, 1920, the plaintiff found a purchaser ready, able, and willing to buy the property and who actually offered to buy it for that price and on the said terms, the purchaser being W. M. Walden; and that afterwards the defendant refused to consummate the sale and refused to pay to the plaintiff his commission of 5 per cení as agreed. Attached to the petition was a copy of the alleged contract, in the form of a letter addressed to C. A. Forsyth and signed “ J. E. Porter, owner, ” and headed “ Atlanta, Ga., 3/1/1920, ” saying: “ You are hereby constituted my sole agent for the purpose of selling, exchanging, or otherwise disposing of the property described on the opposite side of this card, in whole or in part, for the space of 15 days from date. If sold or negotiated by you or through your instrumentality, or by me or any one else during this time, I agree to pay you a commission of 5 per cent, for your services. I further agree to make proper deeds or other conveyances to your customer. ” On the back of this paper the price and the terms of sale were given, and the property was described as " S. Boulevard Street No. 667, size of lot 50x200, No. of rooms 6, stories 1, interior finish tinted, ” with additional items of description, such as f< grates, baths, ” etc.</p> <p>The petition for certiorari states that the defendant “ filed general and special demurrers by way of a motion to dismiss, '' the grounds of which are set out, and that the court overruled the plaintiff's “oral motion and proceeded with the trial of the case,'' and error is assigned on the judgment overruling the same. The answer to the certiorari states that the grounds of the “ general and special demurrers by way of a motion to dismiss'' were: No cause of action is set forth'; the description of the real estate is insufficient to create a binding contract; the contract is unilateral; the written contract to purchase should be attached to the petition; “no binding contract is set up in the petition, showing that the purchaser is bound to accept the property; ” the contract is incomplete and can not be connected up with any .other written document, for the reason that no other writing is referred to in the said contract of listing; the contract purports to be complete, and parol evidence would not be permissible to add tp it or to connect it “ with any other contract by which a complete contract could be set forth by which the purchaser would be bound to accept the property as alleged in the petition."</p>

<p>1. The indictment charges that the accused, Charles E. Davis, did “utter and publish as true the false, fraudulent, forged, altered, and counterfeited quitclaim deed purporting to be signed, sealed, and delivered by QJ. D. Kirkpatrick, in the presence of J. O. Scott and Walter Harris, J. P., to Southern Trading & Trust Company, a corporation, of the County of Pulton and State of Georgia, . . . said quitclaim deed being in words and figures as follows, to wit: [A complete copy deed is here set out], by then and there filing said false and fraudulent, forged, altered, and counterfeited quitclaim deed for record with the clerk of the superior court of said county as a bona fide quitclaim deed, with intent to defraud the said J. D. Kirkpatrick and . . . Mrs. J. D. Kirkpatrick, sole heir-at-law and legatee of the said J. D. Kirkpatrick, knowing the said deed to have been so falsely and fraudulently made, forged, altered, and counterfeited, and knowing the said names, to wit, J. D. Kirkpatrick’s, as grantor, and J. O. Scott’s and Walter Harris’, as witnesses, to have been so fraudulently and falsely signed to said deed as aforesaid, contrary to the laws of said State,” etc. Held:</p> <p>(а) As against a general demurrer, the indictment was sufficient. Penal Code (1910), §§ 231, 232, 954.</p> <p>(б) The averment that the grantor’s name was “ falsely and fraudulently ” signed to the deed sufficiently shows, even as against special demurrer, that such signing was done without the grantor’s knowledge or consent.</p> <p>(c) It is not necessary, even as against special demurrer, that the indict- ' ment show that the property described in the deed is or ever was in existence. Penal Code (1910), § 954. If such property was not in existence, that fact is matter of affirmative defense; and even then the real question would be not so much whether the property existed as whether its non-existence rendered vain the alleged intent to defraud. Penal Code (1910), § 232.</p> <p>(d) Such an indictment may properly allege an intent to defraud two or more persons, and the allegation is sufficiently established by proof of intent to .defraud any one or more of them. The State not being restricted in its proof to the specific date alleged in the indictment, the allegation of an intent to defraud the purported grantor of the forged deed and his “ sole heir-at-law and legatee ” did not necessarily render the indictment inconsistent or the allegation impossible of proof.</p> <p>(e) Piling a forged deed for record “with the clerk,” or “in the office of the clerk,” as contemplated by law for the recordation of a valid deed, is an uttering and publishing within the scope and purview of § 232 of the Penal Code of 1910.</p> <p>2. In a trial under an indictment for uttering a forged deed, where the State relied exclusively upon witnesses’ knowledge of handwriting to show that the deed was forgery, and relied wholly upon circumstantial evidence to show that the accused knew it was a forgery,' as well as that his intent in uttering it was to defraud certain designated persons, and where the defendant in his statement denied each of these elements of the alleged offense and introduced evidence tending to disprove them, the failure of the court to instruct the jury as to the weight of circumstantial evidence was error requiring the grant of a new trial, even though no written request for such an instruction was presented. Penal Code (1910), §§ 1010, 1087; Weaver v. State, 135 Ga. 317 (69 S. E. 488) ; Glaze v. State, 2 Ga. App. 704, 708 (58 S. E. 1120) ; Amason v. State, 23 Ga. App. 784 (99 S. E. 631).</p> <p>3. Where an indictment alleges that a forged deed was “ in words and figures as follows, to wit,” and undertakes to set out a complete copy of the deed, beginning with the words “ State of Georgia, Ployd County ” and ending with the names of the purported grantor and of the attesting witnesses, in the usual form, and where the original deed offered in evidence varies from the copy, in that the upper margin contains matter appropriate for the backing of such a deed, together with other matter usually found on printed legal forms for such deeds, and, in the lower margin, the grantor’s name and seal are followed by a blank line and the word “ Seal,” the variance affords no valid ground of objection to the admission of the original deed in evidence. Haupt v. State, 108 Ga. 53(2) (34 S. E. 313, 75 Am. St. Pep. 19).</p> <p>4. A new trial must be granted because, of the error pointed out in headnote 2, supra. If any other error appears from the record, it is not such as will likely recur on another trial of the case.</p>

<p>Certiorari; from Fulton superior court — Judge Bell. October 5, 1920.</p>

<p>Certiorari; from Fulton superior court — Judge Bell. October 6, 1920.</p>

<p>Action for damages; from city court of Atlanta — Judge Beid. September 30, 1920.</p>

<p>1. On a trial upon an indictment for murder, where the defendant’s statement and the evidence tended to show, as one of the legitimate views thereof, that the families of the accused and the decedent were at enmity, that in a quarrel between the accused and his father on one side and the decedent and his companions on the other the decedent shot and .wounded both the accused and his father, and that, although the decedent then ceased his assault, the accused ran to his home near by, armed himself with a pistol, returned to the scene of the assault, and, without additional cause or excuse, save the heat of passion engendered by the quarrel, shot and killed the decedent, the court did not err in giving in charge to the jury the law of voluntary manslaughter.</p> <p>2. Without a mutual intent to fight, there can be no mutual combat; but that intent, like any other intent, may be manifested by the acts and conduct of the parties and the circumstances surrounding them at the time of tlie combat, as well as tbe circumstances leading up to and culminating in such combat. The question of intent is peculiarly for the jury where there is any evidence from which it may be inferred. In the instant case the court did not err in referring that question to the jury, by giving them in charge the law applicable to mutual combat.</p> <p>3. When considered in the light of the entire charge of the court and the facts of the case, none of the instructions complained of contain reversible error.</p> <p>4. The evidence authorized the verdict, and it was not error to overrule the motion for a new trial.</p>

<p>The evidence not being briefed as required by law, and no question being presented that can be determined without reference to the evidence, the judgment of the court below must be affirmed.</p>

<p>Indictment for manufacture of intoxicating liquor; from Douglas superior court — Judge Irwin. October 16, 1920.</p> <p>Paragraph 2 of the decision relates to grounds as to questions to witnesses and admissibility of testimony. In ground 2 it is stated that the judge “ erred in his own motion in ruling out ” the following question of the defendant’s counsel to the sheriff, on cross-examination: “ You get it all back out of the insolvent costs and other things ? ” “ (referring to the expenses of the sheriff).” The judge inquired as to-the materiality of this question, and the defendant’s counsel said: “It is material in so far as it is prejudicial against the defendant. ” The judge then stated that it had nothing to do with the case, and that he would “ rule it all out. ”</p> <p>Jack. Heflin, a witness for the State, having testified that Jess Odom was working with the defendant, making whisky, and Odom having been introduced as a witness for the defendant, counsel for the defendant asked Odom questions (set out, with the answers) as to his employment of Heflin to work for him, the time for which Heflin was employed, and the amount of wages to be paid, and as to Heflin’s leaving him and being sent for and brought back to him. The solicitor-general objected to the questions and answers, as being irrelevant. Counsel for the defendant said that he wished to show the motive of Heflin “in trying to implicate Mr. Odom; that he went and made a contract with him to work for him and then ran off, . . and came back and reported that this man was running a distillery. ” The judge replied: “ I will let you show that he had a contract and went away, but the particulars of the contract can not be proved. ” In ground 3 it is alleged that the court erred “ in sustaining the ■objection of the State’s counsel and in ruling out the questions and answers of the witness as-above detailed.”</p> <p>In ground 4 it is alleged that the court erred in allowing certain questions of the solicitor-general to the witness Odom, on cross-examination, and the answers of the witness, as to the number of times one Lumsden had brought him before the grand jury; counsel for the defendant objecting to tbe questions and the answers as being irrelevant and immaterial.</p>

Accusation of bastardy; from city court of Polk county — Judge Tison. November 26, 1920. 1.

<p>One witness having testified positively to the commission of the alleged offense, and the verdict of guilty having been approved by the trial judge, the verdict can not be set aside by this court because of alleged insufficiency of evidence.</p> <p>There is no merit in a ground of the motion for a new trial .in which it is alleged that the court erred in excluding testimony of a named witness that a certain other witness said, as to “ this matter,” that “ it was a lowdown trick,” and said also that he did not “ see him do it,” but a named person did, and he did not know anything except what this person told him.</p> <p>The court did not err “ in not charging the law of circumstantial evidence as embodied in section 1010 of the Penal Code.”</p> <p>Newly discovered evidence which was both cumulative and impeaching and would not probably produce a different verdict on another trial did not require a new trial.</p>

<p>Conviction of assault and battery; from city court of Carroll-ton— Judge Beall. November 10, 1920.</p>

<p>Action for damages; from city court of Thomasville — Judge W. H. Hammond. October 9, 1920.</p> <p>The plaintiff’s petition alleged: (1) The defendant railroad company is a common carrier by railroad, having a line of railroad through an office and agent in said county. (2) Petitioner is a grower of watermelons. (3) During the spring of the year 1920 petitioner grew watermelons for shipment in carload lots, growing them upon his farm near Ochlocknee in said county. (4) A ventilated car, great numbers of which are and were in use by the defendant railroad company, is the only kind of freight car suitable for the transportation of snch products. (5) Being such grower of watermelons, and having a carload of same ready for shipment from Ochloeknee, Georgia, said county, petitioner, on the 6th day of July, 1920, made written application to the defendant railroad company, through its agent at Ochloeknee, Georgia, to wit, C. A. Welch, for a ventilated car to be loaded on the 8th day of July, 1920, at Ochloeknee, for immediate shipment. (6) The following is a copy of the application so served upon the said defendant, to wit: “ Georgia, Thomas County. ■ — ■ To the Atlantic Coast Line Bailroad Company:. In compliance with [section] 2774 of the Civil Code of Georgia, adopted in 1910, and as a grower of watermelons, I hereby make application for a ventilated car for the transportation of such watermelons, that being the only car suitable for such purpose; and you are hereby advised that I desire to load such car on the 8th day of July, 1920, beginning at the hour of 4 o’clock p. m., at Ochlocknee, Georgia. This the 6th day of July, 1920. [Signed] H. W. Thompson.” (7) The defendant company failed and refused to furnish a ventilated car to petitioner in accordance with the foregoing demand, either within the 24 hour period contemplated by law for such case or within any other period. (8) The defendant company failed and refused to respond to the said application by furnishing to petitioner any car of any kind whatever for the loading and transportation of such melons, persisting in such failure and refusal for more than five days following next after the service upon its said agent of the said written application. (9) The fair market value of such melons, loaded in a ventilated car at Ochloeknee, Georgia, was then and there, on the 8th and 9th days of July, 1920, the sum of $175. (10) By reason of the defendant’s failure and refusal to furnish a ventilated car as aforesaid, petitioner failed to receive any sum whatever for his said melons, and the same became a total loss. (11) By reason of the defendant’s failure and refusal to furnish a suitable car for the transportation of the melons aforesaid, it has injured and damaged petitioner in the sum of $175 and now fails and refuses to pay the said sum or any part thereof. Wherefore, petitioner brings this suit to recover his said damages, and prays process and judgment accordingly.</p> <p>The code sections referred to in the decision are as follows: § 2774. “ It shall be the duty of the railroad companies of this State to furnish to any grower of peaches, apples, cantaloupes, watermelons, or other perishable products, suitable icing and refrigerator cars, or other suitable cars for the transportation of such products, whenever application is made therefor in writing by the shipper twenty-four hours in advance of the time such car or cars are wanted for loading. Such application to be filed with the nearest agent of - the railroad company to the point from which shipment is to be made, and it shall state the time and place from which shipment is desired. ” § 2775. “ Whenever any railroad company shall fail to furnish such icing and refrigerator cars as required in the preceding section and the shipper places his product in carload lots, or, in cases of less than carload lots, expresses to the agent of the railroad company his willingness to pay charges for carload lots, then such railroad company shall be liable for the market value of such product with interest thereon. The market value to be determined by the market value of the product less cost of carriage and the usual expense of selling in the market to which the shipper intended shipping same, on the day such product would have arrived, had the same been carried in the usual course of transportation on schedule time for such freight. In order to avail himself of this rule of damage, the shipper shall in writing notify the agent of the railroad company of the market to which he intended to ship his product. Payment shall be made by the railroad company for such product within thirty days after written claim has been filed with the company therefor. In the event that such railroad company shall fail to make payment as herein provided, or tender the correct amount thereof, it shall be liable for an additional fixed sum of fifty dollars for each car as liquidated damages for failure to perform its duty in the premises; such liquidated damages to be recovered in any cause brought for the recovery of damages on the main claim, in the event recovery is had thereon. ”</p>

<p>In corroboration of the defendant’s claim that be purchased from two men dressed as soldiers the car alleged to have been stolen, testimony that two men so dressed tried to sell a car to a witness within a day or two preceding the alleged theft was admissible, though the description of that car as given by the witness was exceedingly vagué. The exclusion of this testimony was error requiring a new trial.</p>

<p>Complaint; from DeKalb superior court — Judge Hutcheson. June 25, 1920.</p>

<p>Action for damages; from city court of Savannah — Judge Freeman. July 10, 1920.</p> <p>The petition alleged that an employee of the defendant, hauling cotton with a vehicle of the defendant, allowed three bales to fall in the street; that the bagging of one of them was so torn as to show a white splotch, and formed such an object as naturally tended to frighten an ordinary roadworthy horse; that the plaintiff was driving along the right side of the street at a rate of speed of from six to eight miles an hour; that his horse was an ordinary roadworthy horse with normal proclivities, and that it suddenly shied from the cotton and plunged into an automobile, and the horse and the buggy were thus injured. The plaintiff sought to recover the cost of repairing the buggy, the amount paid a veterinarian for treating the horse, and the reasonable hire of the horse while disabled. It was alleged that the defendant was negligent in not tying or bracing the cotton so that it would not fall from the dray, in overloading the dray so that it would fall off, and in not keeping a lookout to prevent it from falling and replace it after falling, in allowing the cotton to remain on the street, in not removing it, in permitting it to remain when of such a nature as to frighten horses, and in placing no light on the cotton.</p>

<p>Certiorari; from Thomas superior court — Judge Thomas. June 26, 1920.</p>

<p>1. The fact of agency may be established by declarations of the alleged principal. Taylor v. Young, 21 Ga. App. 40 (1 a) (93 S. E. 558). Declarations of an alleged agent are not by themselves admissible to prove agency, but it may he established by proving circumstances, apparent relations, and the conduct of the parties; and where the extraneous circumstances, independently of and without regard to the declarations of the agent himself, clearly tend to establish the fact of his agency, his declarations, though inadmissible if standing alone,-may, as a part of the res gestee of the transaction, be considered. Williams v. King Hardware Oo., 25 Ga. App. 680 (104 S. E. 454), and cases cited; Galle Oo. V. Walker, 127 Ga. 65 (104 S. E. 454) ; Martin v. Bridges & Jelks Go., 18 Ga. App. 24(2) (88 S. E. 747); White Sewing Machine Co. v. Horkan, 7 Ga. App. 2S3'(3), 285 (66 S. B. 811); Heitman v. Commercial Bank of Savannah, 7 Ga. App. 740, 743 (68 S. E. 51) ; Small v. Williams, 87 Ga. 681(2) (13 S. E. 589); Hall v. Mine, 142 Ga. 395(2), (83 S.'E. 92); Fowler v. Parks, 138 Ga. 786(2) (76 S. E. 85); Hood v. Hendrickson, 122 Ga. 795(2) (50 S. E. 994); Napier v. Strong, 19' Ga. App. 401, 409 (91 S. E. 579). Applying the foregoing principles of law to the evidence in this case, the jury were authorized to find that the fact of agency had been established.</p> <p>2. The judge charged the jury that if the person in charge of the defendant’s car at the time of the injury was driving it “as the servant or agent of the defendant,” the defendant would be responsible for any negligence of which the driver might be guilty. He did not amplify this statement by adding that such alleged acts of negligence by the servant must have'been done in the prosecution of or within the scope of the master’s business. Held, that such a charge cannot be accounted as reversible error; for, while a master is bound by the acts of his servant only when the latter is acting within the scope of his authority (Civil C.ode of 1910, §§ 3593, 4413), still, since the charge limited the accountability of the master for the negligence of the servant to his acts when done “as the servant or agent of the defendant,” this should be taken as the equivalent of a statement that the acts must have been done within the scope of the master’s business. Fielder v. Damson, 139 Ga. 509, 511, 512 (77 S. E. 618). ■</p> <p>3. The court erred in charging the provisions of a municipal ordinance of the City of Savannah, which had not been sufficiently pleaded, or admitted by the defendant, or in any wise proved by the evidence.</p>

Action for damages; from city court of Bainbridge — Judge Spooner. August 4, 1920.

<p>Complaint; from Jefferson superior court — Judge Hardeman. June 28, 1920.</p>

<p>1. The amount of damages found by the jury will not be interfered with by this court unless so small or so large as to justify the inference of gross mistake, undue bias, or prejudice. An inference that the amount of damages in the present ease is excessive is not justified by the evidence.</p> <p>2, 3. The excerpts from the charge of the court on which error is assigned stated correctly principles of law applicable to the evidence, and were sufficient in the absence of timely requests for more specific instructions.</p> <p>4. The charge on the subject of comparative negligence was not applicable to the case, but was not prejudicial to the defendant.</p>

<p>Action for damages; from Newton superior court — Judge Hutcheson. July 23, 1920.</p>

<p>Motion, to set aside judgment; from Douglas superior court — Judge Irwin. June 14, 1920.</p>

<p>Complaint; from city court of Dublin — Judge Flynt. July 19, 1920.</p> <p>Application for certiorari was denied by the Supreme Court.</p> <p>The Citizens Bank of Dublin sued J. A. Wolfe, maker of a promissory note, alleging that the note was made payable to the order of the City National Bank of Dublin, and by it indorsed and transferred to the petitioner. The defendant, in a plea filed at the appearance term, admitted the execution of the note sued on, and alleged that the plaintiff was the successor of the City National Bank, a banking corporation under the laws of the United States, and, as the successor of the said national bank, had taken the note with full notice of all the equities between the defendant and the national bank; and further alleged that the note contained usurious interest which, the national bank had received, charged, and reserved from the defendant when the note was originally made, and that this usurious interest should be allowed the defendant at a set-off against the note. The defendant alleged that he had made, previous to the date of that note, other notes to the national bank, in which there, was a large amount of usury reserved and taken by that bank at the time the notes were made, aggregating the usurious sum of $1,400; and this amount the defendant insisted should be allowed him as a set-off against the principal of the note in suit. Allowing the sums claimed as a set-off, the defendant alleged that there only remained due on the note the sum of $690, which sum he had tendered to the plaintiff before the return day, and that the. tender was a continuous tender and unconditional. At the trial term, of the case the defendant filed an amendment to his plea, in which amendment he alleged that the note sued on was a renewal note and had been renewed for a number of times; that at each renewal thereof interest was charged in the face of the note at the rate of 12 per cent, per annum, and that he was entitled to set-off the usury with which the note was infected. He further alleged that previous to this note he made other notes payable to the '“ plaintiff, ” on which he paid usury aggregating the sum of $1,090, which he asked to be allowed him as a set-off to the principal of the note in suit. And as to the note sued on, amounting to $2,090, the defendant alleged that it was given by him to “plaintiff” in renewal of all his previously existing indebtedness to the national bank, and that this note was infected with usury which was charged and collected when the note was made. The allegation in this amended plea that the notes in question were made by the defendant to the “plaintiff” was not supported by the evidence. The evidence indisputably shows that the note in suit and all the other notes were originally.made by the defendant to the national bank; that the note in suit was the last note made by him, and that it was made to the national bank; and the evidence further shows that all the notes in question, except the note sued on, were fully paid by the defendant — principal and interest — to the national bank, the statement being made that the bank at the time of the execution of the notes in question “ charged and reserved ” the usurious interest. The first plea filed by the defendant was abandoned as' being under the national bank law and therefore not applicable, and the second plea was filed under the State law. The second plea was not formally allowed by any order of the trial court. It was filed in the clerk’s office at the trial term and was specified in the bill of exceptions as a part of the record to be sent up to this court by the clerk. The defendant in error insists here for the first time that this amended plea should not be considered by this court, because it appears that no order was passed in the trial court allowing such plea to be filed. The case was heard by the judge below without the intervention of a jury, and he rendered a judgment for the plaintiff for the amount of the note sued on, with legal interest, after deducting therefrom the usurious interest embraced in the particular note; but he did not allow as a set-off the usury alleged to have been paid by the defendant on the previous notes made by him to the national bank; and the question for decision by this court, on the merits of the case, arises on the exception to the judgment refusing to allow the defendant a set-off of the usurious interest paid by him to the national bank on the previous notes.</p>

<p>Complaint; from Laurens superior court — Judge Kent. July 30, 1920.</p> <p>Simmons sued for a sum alleged to be due him as a commission on the sale of certain real estate owned by the defendant, Corker, in Dublin, Ga., alleging that Corker employed him as agent to negotiate the sale of this real estate and to assist in disposing of it at stated prices, and agreed to pay him stipulated commissions for his services; that “in pursuance of said contract he immediately went to work, in good faith and for the promised consideration, to sell said property and approached some prospects, chief among whom were T. A. Curry and E. J. Schiff, and succeeded .in interesting said prospects in the purchase of said property, thus creating, by his efforts under the contract, a demand for said property, making it possible to sell the. same on account of petitioner’s negotiations and experience in the sale of real estate in the city of Dublin;” that “as a direct result and consequence of his personal negotiations ” Corker “ did consummate a trade for the sale of said property to Dr. W: E. Brigham, ” and that the sale of the property by Corker to Brigham was “ a result of the efforts of agitation and conduct of your petitioner in seeking to sell said property, and that as a result . . Corker got the immediate benefit of petitioner’s labors in the sale of said property to Brigham, as it required no effort on the part of the said Corker to sell said property to the said Brigham, but was merely the consummation of a contract and deal resulting directly and immediately from labors performed by your petitioner pursuant to the contract with the defendant to sell said property, the said labors performed being negotiations with the said Curry and the said Schiff and others, and thus creating a demand for said property, the demand thus created having interested the said Brigham, the said Brigham having become interested as a direct result of the demand thus created. ”</p> <p>A general demurrer to the petition was overruled, and the defendant excepted.</p>

<p>Action for damages; from city court of Savannah — Judge Freeman. July 28, 1920.</p> <p>Application for certiorari was denied by the Supreme Court.</p> <p>This suit was for damages on account of personal injuries received by the plaintiff while in the employ of the director-general of railroads, operating the Central of Georgia Railway, and the case came to this court on exceptions to a nonsuit. The plaintiff’s petition alleges, in substance: The Central,of Georgia Railway Company had an electric charging station at its terminal in Savannah where its trucks were recharged after having finished the day’s work. The Atlantic Compress Company had a cotton compress adjacent to these terminals, and the compress company used the same sort of trucks in its business. The trucks of the Atlantic Compress Company, as well as the trucks of the defendant, were taken care of at this station, the compress company paying the director-general of railroads its proportion of the cost of the labor and supplies used in its behalf. The plaintiff was employed by the railroad company at this station, and it was his duty to recharge the trucks of both companies. There is a shed maintained by the defendant, under which, after the day’s work is done, the trucks of both companies are placed for the purpose of being recharged at night, and it was the plaintiff’s duty to operate the trucks from this shed to the recharging station and there recharge them. On the night on which the plaintiff was injured he undertook to operate a truck of the Atlantic Compress Company from the shed in question (a distance of about thirty feet), from where it had been left by an employee of the compress company at the close of the day’s work, into the charging station. While moving the truck into the station the plaintiff was standing on the front foot-board of the truck, with his back in the direction in which the truck was moving, and when he was within three or four feet of the wall of the charging station he attempted to put on the brake of the truck, but for some reason it would not work, and he was mashed between the truck and the wall of the station. ■The truck was also equipped with a reverse lever by which the truck could be stopped immediately without reference to the brake. The truck so injuring the .plaintiff was found to be the Atlantic Compress Company’s truck. The compress company’s employee who had placed the truck in the shed knew that the brake appliance was out of repair, but when he had finished the day’s work there was no one on the premises fo whom on behalf of the defendant a report of the defect could be made.</p> <p>It is alleged, that, knowing that it was the plaintiff’s duty to operate for the purpose of recharging all the trucks placed in the shed, it was the defendant’s duty to provide some representative to inspect the trucks so placed in the shed and to make a report of the defects and disrepair of any of said trucks, and not subject the plaintiff to injury by reason of defective trucks placed there for recharging, and to warn' plaintiff of any insecurity in any of said trucks; that the defect in the truck was known to the defendant, or in the exercise of proper care and diligence should have been known; that its defects or deficiencies were unknown to the plaintiff and could not have been discovered by the exercise of ordinary care and diligence; that it was no part of the plaintiffs duty to inspect the trucks, and he had a right to rely on the fact of this truck being in good condition, since he found it where serviceable trucks were placed for the purpose of being recharged, and the defendant, knowing of the defect and deficiency, was negligent in placing this truck where only trucks in good condition should have been placed; that this truck was used by the defendant in the business of handling freight, and the defendant used it as the defendant’s own, causing it to be operated by the defendant’s employees, and, irrespective of the ownership of the truck, operated and used it as the defendant’s own instrumentality; and that the plaintiff, in operating it from the shed where it was placed to the recharging station, was in the discharge of his duty.</p> <p>The evidence introduced to support the foregoing allegations was substantially as follows: The truck which caused the injury to the plaintiff was not used by the defendant in any of its business or in any respect, and had never been so used. It was the property of the Atlantic Compress Company, and had always been used by that company in its business, and was so used until its employee placed it in the adjacent shed for the purpose of being recharged by the plaintiff at the defedant’s recharging station. There was no evidence whatever that the defendant knew of any defects or deficiencies in the truck operated by the employee of the Atlantic Compress Company when he placed it in the shed, or at any other time, or that the _ defendant had anything to do with placing it there. The employee of the compress company discovered in the afternoon when he placed the truck in the shed that the brakes were for some reason defective, but he did not know what was the matter with them, and did not report their condition to the defendant or to anyone else. If this employee discovered any defect in the truck it was his duty to report the defect to some officer or agent of the compress company, in order that the truck might be sent to the repair shop, about a half mile away from the charging station. He did not make a report to anybody, as to the defect of this truck, because there was no one at the compress office to whom to make the report, and he did not go to the office of the railroad, company for that purpose, because he had never made any report of the kind to it, although, if he had gone into the office, he might have found an employee of the railroad company therein. The plaintiff testified, in reference to his work, that he would go out and get one of the electric trucks and run it into the charging station, and when he got it in there he would work on the batteries, would clean them, would look to see that all of the wires were connected and in good order, would oil the trucks, and, in order to oil them, would have to go underneath them, below the platform, of the trucks. “ All I was hired, do.wn there for was to charge the trucks, and, if I found anything broke on them, to have it marked, ‘ To the shop.5 I did not actually do the repairing myself. If I found anything defective or broken part of it so that it would not operate, I should chalk it to the shop, and it would be taken to the other place where they repaired trucks before they were operated again. Mr. Pharr (he was my foreman), he told us down there, he said, ‘McKale, if you happen to find anything the matter with these trucks, mark them to- the shop, because some careless driver is liable to leave them outside of the charging station when they need repairs. ’ My business was to work on the trucks, not with the trucks. ”</p> <p>The plaintiff was operating the truck in question over smooth concrete floors on which there was a quantity of oil that had been dropped from thr trucks as they were oiled each night. He was an experienced man, having been employed in this work three years. While running the truck into the charging station he stood on the front end of the truck, with his back to the wall which he was approaching. He did not undertake to put on the brake or to see if it was in working condition until within three or four feet of the wall of the charging station, and he then found that the brake would not work. He did not attempt to use the reverse lever on the truck until the wall had touched his back. His duty was to examine the truck before recharging it, and this work was performed by him sometimes out in the shed before running the truck into the station, but generally in the station, where the light enabled him tó do the work.</p>

<p>Complaint; from city court of Quitman — Judge Baum. August If, 1920. ■ : ' -j</p> <p>Application for certiorari was denied by tlie Supreme Court.</p>

<p>Eviction; from Ben Hill superior court — Judge Gower. August 14, 1920.</p>

<p>Complaint; from Whitfield superior court — Judge Tarver. September 25, 1920.</p>

<p>Trover; from Taliaferro superior court — Judge Walker. August 25, 1920.</p>

<p>Action for damages; from Bibb superior court — Judge Mathews. September 10, 1920.</p>

<p>Complaint; from city court of 'Washington — Judge Sutton. September 11, 1920.</p>

<p>Complaint; from city court of Carrollton- — Judge Beall. October 30, 1920.</p> <p>The Coweta Fertilizer Company sued A. F. Johnson on a promissory note. At the appearance term the defendant filed a plea in which he alleged that he had made a pa3rment of $85 on the note, which was not credited thereon; and when the case was reached for trial the attorneys for both plaintiff and defendant agreed on a consent verdict for the plaintiff for the amount of the note, less a credit of $42.50. Judgment was entered accordingly. During the term at which the verdict and judgment were rendered the defendant made a motion for a . new trial, on the usual general grounds and on the grounds (1) that when the verdict was rendered against him he was confined to his home with an attack of appendicitis and was unable to attend court on the day of trial, and had so notified his attorney by sending him a certificate of his physician; and (2) that his attorney had no authority to permit the verdict and judgment to be taken against him, except in accordance with his plea allowing him a credit of $85; that the agreement by his counsel for a verdict for less than this amount of credit, to wit, a credit of $42.50, was without the knowledge and consent of the movant, and that he objected as soon as he was informed of it, and insisted that the payment set up in his plea was made by him, and that he did not owe the plaintiff the $85 or any part thereof. The movant’s affidavit as to his sickness and the affidavit of his physician were attached to the motion for a new trial. The judge granted the motion, and the plaintiff excepted.</p>

<p>1. Where one has violated a penal statute of this State which forbids the sale of a pistol to a minor, and injury results therefrom, he should be held liable for the injury if it be a natural and probable consequence of the violation of the statute and should reasonably have been anticipated by the offender as a natural and probable result of his unlawful act.</p> <p>2. If, subsequently to the original wrongful act, a new cause intervened", sufficient of itself to stand as the cause of the injury, the former will be considered as too remote. But - if the intervening cause and its probable consequences should reasonably have been anticipated by the original wrongdoer as a natural and probable result or the wrongful act, the causal connection between the wrongful act and the injury is not broken, and an action for resulting damages will lie against the original tort-feasor.</p> <p>.3. A tortious act may have several consequences, concurrent or successive, for all of which the first tort-feasor is responsible; and a consequence of an original wrong may in turn become the cause of succeeding consequences, and should not be regarded as an efficient intervening cause which will excuse the original cause, so long as it appears that the injury is attributable to the original wrong as a result which reasonably might or'ought to have been anticipated and foreseen.</p> <p>4. The allegations of the petition show that the defendant sold to a minor loaded cartridges and a pistol in violation of the criminal statute of the State; that this minor, some days afterwards, lent the pistol to another minor, and the latter shot, injured, and damaged a third minor, who brought suit against the defendant as the original wrongdoer. Held, that these allegations, with others in the petition, presented issuable facts relating to the cause of action and the liability of the defendant which should have been submitted to the jury, and the court erred in sustaining the demurrer and dismissing the petition.</p>

<p>Levy and claim; from Marion superior court — Judge Hutcheson presiding. October 26, 1920.</p> <p>This is a claim case. The evidence in substance is as follows : The defendant in fi. fa. bought certain personal property from the Woodruff Machinery Manufacturing Company, giving therefor promissory notes containing a retention of title to the personalty until paid for, which were duly recorded. He paid the notes and an entry of payment was duly made on the record, and possession of the property was delivered to him by the payee. The execution against him was obtained on April 25, 1916, and on July 8, 1919, was levied on the personalty in question, which was then in his possession. On the part of the claimants it was testified that the property in question was their property at the date of the levy. The claim was based on the following facts: The claimants lent to the defendant in fi. fa. the money to pay his notes for the property, and he paid the notes and took possession of the property. Subsequently, on August 4, 1919, a transfer of the notes, which had previously been marked paid and delivered to the defendant in fi. fa., was made by the Woodruff Machinery Manufacturing Company to the claimants, at the request of the defendant in fi. fa. while the property was in the possession of the levying officer. The defendant in fi. fa. testified that he had never repaid to the claimants the money borrowed to pay the notes. The court, at the conclusion of the evidence, directed a verdict for the plaintiff in fi. fa., and the claimants excepted.</p>

<p>Complaint; from Toombs superior court — Judge Hardeman. November 24, 1920.</p>

<p>Complaint; from Atkinson superior court — Judge Lovett. December 20, 1920.</p>

<p>Levy and claim; from city court of Valdosta — Judge Cranford. July 14, 1920.</p> <p>The defendant’s letters referred to in paragraph 2 of the decision were as follows:</p> <p>“Anniston, Ala., Oct. 23, 1919. The Davis Fur. Co., Valdosta, Ga. — Gentlemen: I have about fifty new spring cots with mattresses and nice feather pillows am offering four dollars each f. o. b. Anniston. The mattresses alone are worth four dollars each and you can easily realize eight dollars each on them. Let me hear from you at once. Tours truly, B. L. Hall, 2012 Gurnee Ave. ”</p> <p>“Anniston, Ala., October 27, 1919. W. J. Davis, Valdosta, Ga. — Dear Sir: Your letter 25th inst. received, and will say in reply there are about five steel cots and about forty or forty-five spring wooden frame cots size of mattresses 2%x6 weight from 12 to 14'pounds with feather pillows 17x25 about 2% pounds. Advise by wire if you want us to ship at four dollars each F. O. B. Anniston. Yours truly, B. L. Hall. ”</p> <p>“Anniston, Ala., Nov. 3, 1919. W. J. Davis, Valdosta, Ga.— Dear Sir: Inclosed you will please find bill of lading for forty-five cots, mattresses and pillows at four dollars ($4.00) per amount to one hundred and eighty ($180.00) dollars. Am inclosing you bill from O’Shield Transfer Co. for the packing and draying of the above cots, which makes a total of one hundred and ninety-five ($195.00) dollars, which please mail me a check for at once, as I may not be in Anniston but a few days. I am figuring on some office furniture here, such as tables and chairs. Let me know if you would be interested in them. Thanking you for your immediate attention, I remain, Yours very truly, B. L. Hall. ”</p> <p>The garnishee testified to receiving these letters and the goods mentioned therein, that the offer made in the second letter was accepted by Mm, and that he still owed the purchase-price of the goods.</p>

<p>1. Where a person hires his servant to another for a particular employment, the servant, for anything done in that particular employment, must be dealt with as the servant of the person to -whom he is hired, although he remains the general servant of the person who hired him.</p> <p>2. Where an undertaker is employed to conduct a funeral and to furnish automobiles in that service, and he hires from a taxicab company the automobiles, with chauffeurs furnished by the taxicab company, and the undertaker has the exclusive right to direct the mode and manner in which the chauffeurs shall perform the special service in connection with the funeral, and as to the funeral the chauffeurs are under the exclusive control of the undertaker, the chauffeurs become particular servants of the undertaker, and he is liable for their acts of negligence.</p> <p>3. The instructions of the trial judge, as to the test by which the jury could determine who was the master at the time the act of negligence was performed by the servant, were correct, and the verdict for the plaintiff, if it was not demanded, was amply supported by the evidence.</p>

<p>Action for damages; from Fulton superior court — Judge Bell. July 15, 1920.</p> <p>Application for certiorari was denied by the Supreme Court.</p> <p>The petition alleged that the plaintiff was employed in the defendant’s candy factory, his particular duty being to operate two machines known as “ cream beaters. ” These machines consisted of two revolving cylinders inside of a box or container which held the candy or cream. Each of the cylinders had teeth, which, when the cylinders revolved, would whip or beat the cream into the proper consistency. The top of the machine was open for a space about 9 inches wide by 40 inches long, and this opening was intended to be covered-by a top made of wire mesh. This covering was made firm by bending the ends of the wire down around the edges of the container, thus preventing it from getting out of place; but by reason of the age of the wire top and the continual bending of the ends of the wire back and forth, the edges of the wire top had become broken off, so that there was no way to fasten it securely in its place. A tin cup full of water stood on top of the wire, cover, it being used from time to time to pour water into, the machine. While the plaintiff was engaged in operating one of these cream beaters the defendant’s superintendent, Logan, took hold of a hose, which was hanging, on the wall near the cream beater, and walked, with the end of the hose in his hands, toward another machine (called a kiss machine); presumably for the purpose of cleaning the kiss machine. His back was to the cream beater, and, as he walked along with the hose dragging behind him, he did not look back to see if the hose cleared the top of the cream beater. As he moved toward the other machine, the hose behind him caught under the wire top of the cream beater and upset it, and also the tin cup, “tipping them over, and putting both.in a position where they were liable to be drawn into the machinery, with the result of spoiling the large amount of cream . . , and of probably damaging the machinery. In order to prevent the wire top and tin cnp from falling into the cream beater, with the results aforesaid, plaintiff, without time for deliberation or reflection, and acting from a natural and sudden impulse to seize the top and the can and prevent them from falling into the machine, thrust out his left hand to catch said articles before the same were drawn into the machine, and in some way his hand became entangled in the wire, and before he could extricate it, it was drawn in between two large rollers and badly crushed.”</p> <p>The petition charged negligence, (1) in failing to provide safe machinery, in that the wire top was worn and defective and there were no means of fastening it securely in its place; and (2) in that the defendant’s superintendent, Logan, handled the hose unskillfully and carelessly in causing it to upset the wire and the tin can, “thus causing the emergency in which plaintiff attempted to save the property of his employer. ” The petition further alleged that “the plaintiff had been running said machine about eight months, and, by being careful, had not had any accident on account of the said defect in said wire top.”</p> <p>The petition was demurred to generally, and at the hearing the plaintiff tendered an amendment, alleging that defendant was negligent also (1) in failing to provide the plaintiff with a safe place to work, and (2) in not furnishing machinery equal in kind to that generally used; and further alleging that,' “ at the time the plaintiff attempted to prevent the water can and wire top from being drawn into the machine, as hereinbefore alleged, his attention was so distracted to and absorbed in said act, he did not have time to think, and did' not think, of any danger to himself in making said attempt.” This amendment was disallowed, and the court sustained the general demurrer, but allowed the plaintiff 10 days to amend. Within the time allowed, the plaintiff filed a second amendment, amplifying the description of the machine that injured him, and describing in detail how the injury occurred. The amendment elaborated upon the allegation made in the first amendment, that at the time the injury occurred, the plaintiff was so absorbed in his work that he did not think of the danger of thrusting his hand in contact with the revolving teeth on the cylinders. The plaintiff amended “paragraph 6, by striking therefrom the allegation that 'plaintiff had been running said machine about eight months, and, by being careful, had not had any accident on account of the said defect in said wire top.’ ” The demurrer was renewed as to the petition as thus amended, and was sustained and the petition dismissed, and the plaintiff excepted to this judgment.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. June 34, 1930.</p>

<p>Complaint; from Wilkes superior court — Judge Walker. August 2, 1920.</p> <p>J. B. Colt Company sued W. L. Dunaway for the purchase-price of certain property stored or retained for him. The undisputed evidence shows the following facts: On June 13, 1918, the defendant gave an order for the goods in question, and on June 17 the plaintiff accepted the order. On June 29 the defendant notified the plaintiff that, owing to war conditions, he would not take the goods, and to consider his order as canceled. On July 17 the defendant shipped the goods by railroad from its factory at Chicago, Illinois, addressed to the defendant at Tignall, Georgia. The goods arrived at destination on August 9, but the defendant refused to accept them. On the plaintiff’s instructions they were returned to the plaintiff at Chicago, and there placed in a warehouse and held for the defendant.</p>

<p>Action for damages; from Bibb superior court — Judge Kent presiding. July 26, 1920.</p>

<p>A petition which alleged a contract of purchase containing a provision that time should be of the essence thereof, and alleged a part payment of the purchase money in cash and the execution of a promissory mote for the balance, a tender of payment of the note and a refusal by the defendants to accept payment, a failure and refusal of the defendants to deliver to the plaintiff the personalty bought, and consequent damage to plaintiff, set forth a cause of action as against a general demurrer.</p>

<p>Complaint; from .city court of Savannah1 — Judge Freeman. July 12, 1920.</p> <p>The Marion National Bank sued Benton Transfer Company on a promissory note originally payable to Indiana Truck Corporation, and dated September 10, 1917, upon the back of which was the indorsement set out in the foregoing decision. In the defendant’s answer it was contended that the plaintiff was “not a holder of said promissory note in due course, and the alleged transfer was and is not an indorsement of said note within the law merchant, but was and is a mere assignment by Indiana Truck Corporation to the Marion National Bank of all its right, title and interest in and to the said note and in and to the said Indiana motor-trucks,” and the plaintiff took and held the note subject to all the defenses and equities of the defendant to which the note was subject in the hands of Indiana Truck Corporation; and it was alleged that on October 17, 1916, Indiana Truck Corporation sold to the defendant a certain truck and agreed to maintain a service station and service truck in Savannah during the life of the truck sold, but that it failed to do so, and for stated periods this failure deprived the defendant of the use of the trucks purchased from the truck corporation; to the defendant’s damage in a stated sum, which it was alleged the defendant had the right to set off against the note.</p>

<p>Complaint; from city court of Americus •— Judge Harper. October 14, 1920.</p> <p>W. L. English sued John Crawford for commissions on the sale of certain real estate owned and sold by Crawford. The original petition alleges, in substance, that on June 30, 1919, Crawford entered into a contract with J. H. Purvis (a copy of which is attached to the petition), in which he gave to Purvis the exclusive right to sell 1400 acres of land in Sumter and Schley counties, at an agreed price and upon stated terms; that Purvis employed the petitioner to aid him in his efforts to sell the land in pursuance of the terms of the contract, and employed also for the same purpose one P. D. »Williford, and the three of' them worked together from the date of the contract with Purvis until the date of .its expiration on September 30; that the petitioner, while associated with Purvis, had frequent communications with one E. L. McMath with reference to the purchase of the property, and took him over it on several occasions; and that after September 30, when the contract with Purvis expired by its terms, the petitioner had several conferences with Crawford, who wanted him to continue his efforts to sell the property, as Crawford was quite anxious to dispose of it, under the same terms as contained in the contract with Purvis, but he refused to do this, and advised Crawford that he would do all in his power to sell the property on condition that Crawford would pay him the usual commission of five per cent, for making the sale; that following the instructions of Crawford to make said sale he had several other conferences with McMath, and urged McMath to buy, and that following these negotiations, which were continued with the knowledge of Crawford, Crawford in November, 1919, completed the sale of his lands in Sumter and Schley counties, on which he resided, including all his personal property on said place, to said McMath for $17,000, the same being the property Crawford had urged plaintiff to sell for him. He prayed for a judgment against Crawford for $3,850. The written contract attached to the petition was as follows: “Americus, Ga., 6/30, 1919. I hereby give J. H. Purvis, of Americus, power of attorney to sell for me the following property: 1400 acres of land, more or less, in counties of Sumter and Schley, State of Georgia, where I now live, at $50 per acre net to me, to be paid on the following terms: One half cash, balance terms to be agreed upon; deferred payment 7% interest. I agree to pay said J. H. Purvis all over $50 per acre place sells for, on gross amount; and I further agree that said J. II. Purvis shall have the exclusive right of selling, but I reserve the right to revoke this agreement after three months. John Crawford (L. S.).” In paragraph 11 of the original petition it was alleged that 5% was the usual commission on such sales and that the services rendered by the plaintiff were worth the same.</p> <p>By an amendment to the petition the plaintiff alleged that on the expiration of the* Purvis contract the defendant asked the plaintiff to sell “his place, that is, the 1,400 acres of land located in Sumter and Schley counties, Georgia, on which the said John Crawford then resided and which he subsequently sold to E. L. McMath, and being the place in said two counties on the Bumphead public road and the Sumter and Schley county line passing through same, which the said E. L. McMath now owns and is in possession of;” that the plaintiff advised the defendant that he “would undertake to sell it for him at $50 per acre ” if the defendant would pay him 5 % commission and give him until January 1, 1920, to sell, “to all of which the said John Crawford then and there agreed, and insisted that petitioner sell the land as quickly as possible.” It was alleged that, following the understanding and agreement with Crawford, the plaintiff continued to keep as a customer the said E. L. McMath whom lie had first interested in the property under the Purvis contract, and advised Crawford that E. L. McMath was interested, and that he felt sure that he could sell the property to McMath: that he was in constant communication with McMath, and had frequent conferences with him, up to the day immediately prior to the closing of the deal between Crawford and McMath, and that he had a conference with the son of Crawford, who was working with Crawford, in reference to the sale to McMath, on the day before the closing of the sale by Crawford to McMath, and that while the plaintiff was not present when the papers were actually drawn, and had not been notified by Crawford to be present, he procured the purchaser who actually bought and paid for the said property in cash, under the terms given to the plaintiff by Crawford; that the property was sold by CraAvford to the plaintiff’s purchaser, and under and by virtue of the agreement which Crawford entered into with the plaintiff.</p> <p>To the original petition the defendant filed general and special demurrers, contending that the allegations of the petition do not clearly and distinctly set forth a cause of action, that the contract attached to the petition is not -a contract in the petitioner’s own name, and that there is no assignment of it, and that the plaintiff has no contractual rights thereunder as against the defendant; that the suit seeks to recover on an express contract and at the same time seeks to recover on a quantum meruit, and these are not such rights as can be pleaded in one and the same suit; that the contract attached to the suit is not a valid contract, in that its terms are too indefinite to be "the basis of a suit, there being no definite terms stated in the contract giving to Purvis the right to sell the property alleged to have been sold, and no description of the property placed with Purvis for sale; that there is no description of the property alleged to have been sold either in the contract attached to the petition or in the petition itself; that the terms on which the property is to be sold by the plaintiff are not alleged; that the suit is duplicitous and seeks to recover on an express and an implied contract, and that the paragraphs of the petition are so intermingled, referring to both express and implied contracts, that it is impossible to distinguish the one from the other.</p> <p>After the amendment to the petition had been filed, the defendant renewed the demurrer, on the same grounds and on the additional ground that the contract set out in the amendment was unilateral and not binding on the defendant, in that there were no corresponding obligations resting upon the plaintiff; that there was no consideration shown for the making of the contract; that there is a misjoinder of causes of action, in that the original petition seeks to recover on an implied contract and the amendment seeks to recover on an express contract, and that the original petition shows that one Purvis had the exclusive contract of sale of the land and that the defendant was working under Purvis and under the Purvis contract, and no right of recovery was shown in the plaintiff. The court sustained the demurrer as to paragraph 11, which was demurred to as being an effort to recover in the same action on both an express and implied contract, and overruled all the other grounds of demurrer. The defendant excepted.</p>

<p>Action for damages; from Cobb superior court — Judge Searcy presiding. November 3, 1920.</p> <p>This was a suit for personal injuries caused by negligence on the part of the county, in regard to the defective condition of a county bridge which ivas a part of a public highway. The allegations in the petition, in substance, make the following case: A hole about fourteen inches in circumference and about the middle of the bridge had been permitted by the county to remain in the bridge after the county had actual and constructive notice of the existence of the hole, and this negligence of the county was the direct and proximate cause of the plaintiffs injuries, it being alleged that while the plaintiff was riding his mule over the bridge it became frightened at the hole, and jumped and shied and fell down upon the bridge, falling on the. plaintiff and causing injuries to him, particularly described. It is alleged that by reason of the injuries so received the plaintiff was damaged in the sum of $2,000; that his earnings, prior to his injury, had amounted to about $1,500 per year; that by reason of his injuries so received he had been unable to cultivate Ms crop during the year and was forced and obliged to neglect his business, a,nd that he had undergone great pain and suffering. The defendant demurred generally on the ground that the allegations did not show any negligence on the part of the defendant which was the proximate cause of injury to the plaintiff; and demurred specially on the ground that the allegations as to the extent of the injury and the amount of the damages were too indefinite and uncertain to be the basis of a recovery. The demurrer was overruled and the defendant excepted.</p>

<p>Action for damages; from city court of Atlanta — Judge Eeid. November 4, 1920.</p>

<p>Action for damages; from city court of Atlanta — Judge Beid. October 16, 1920.</p> <p>Application for certiorari was denied by the Supreme Court.</p> <p>Nichols sued the Atlantic Ice- & Coal Corporation for damages on account of an injury alleged to have been received while he was running a rip-saw for the defendant at its plant in Atlanta. The allegations of his petition are substantially as follows: Except in a general way, he was unfamiliar with the operation of rip-saws, and did not know when they were in a defective condition. The rip-saw which he was operating was defective, in' that it had no shield over it for the protection of any one who might be operating it, and also had a wobble, or a kink in it which caused it to wobble when it was being used. While he knew of this defective condition and knew that it was difficult to saw wood with the rip-saw in that condition, he did not know that it was dangerous. He had a helper employed to assist him in the operation of the saw, but the day before he was injured this helper was taken away from him by the defendant, and on the day of the injury he was ordered to saw a board about four inches wide and about three-quarters of an inch thick with the s'aw, and having no helper with him it was necessary for him to hold both ends of the board and work the board through the saw, and while he was engaged in doing this the wobble or kink in the saw caused it to catch and jerk up the board, thus catching his hand in the saw and cutting off his fingers. The specific negligence alleged was: (1) that the defendant did not provide the saw with a shield; (2) that the plaintiff had been put to work with this saw in its defective and dangerous condition without proper warning; (3) that the plaintiff’s helper was taken away over his protest at a time when the services of the helper would have prevented the accident; .and (4) that the plaintiff was not provided with a safe place and safe instrument for work. A demurrer was filed, on the following grounds: (1) No cause of action is set forth; (2) the plaintiff was injured by an assumed risk; (3) the petition does not allege that the plaintiff did not know' of the defective condition of the saw and had not equal opportunity with the master of knowing thereof; (4) "the petition discloses that the plaintiff did know of the defective condition of the saw, and with this knowledge assumed the risk of its condition; and (5) the petition discloses that the plaintiff knew that his helper had been removed and that the removal of the helper increased the danger in the work, and, with the knowledge of such increased danger, he nevertheless continued at the work, and therefore assumed the risk of such increased danger. Tbe demurrer was sustained and the petition dismissed, and the plaintiff excepted.</p>

<p>Action for damages; from Twiggs superior court — Judge Kent. February. 36, 1919.</p>

<p>“The act of the General Assembly, approved August 17,1918 (Acts 1918, p. 110), amending section 1202 of the Civil Code of 1910, relating to the compensation of tax-receivers in this State, went into effect from and after the date of its passage; and ‘from and after’ that date (for so much of the year as remained) receivers were entitled to compensation at the rate fixed by the act.” Salmon v. Floyd County, 151 Ga. 313 (106 S. E. 280). The court erred in dismissing the petition on general demurrer.</p>

<p>Indictment for assault with intent to murder; from Forsyth superior court — Judge Blair. April 24, 1920.</p>

<p>Action on insurance policy; from Mitchell superior court — Judge Harrell. April 19, 1920.</p> <p>The insurance company contended that the fire-insurance policy sued upon had been surrendered and canceled before the fire. The plaintiff contended that he delivered the policy to the company’s agent for the purpose of enabling the agent to make an indorsement on it, but not for surrender and cancellation.' The evidence referred to in paragraph 1 of the decision was to the effect that the plaintiff made efforts to see the agent and get the policy on the next day after the night of the fire, and that he then learned for the first time that the insurance company claimed that his policy had been canceled; that thq agent then said that he had canceled it and had sent it to the company, but did not say why it had been canceled. This testimony was admitted over the objection that it was “ entirely immaterial. ”</p>

<p>Action for damages; from Bibb superior court — Judge Mathews. June 24, 1920.</p>

<p>Complaint; from Muscogee superior court — Judge Howard. May 14, 1920.</p>

<p>Attachment, ■ etc.; from Haralson superior court — Judge Irwin. July 8, 1920.</p>

<p>Complaint; from city court of Atlanta — Judge Eeid. October 2, 1920.</p>

<p>Attachment and claim; from city court of Carrollton — Judge Beall. September 15, 1920.</p>

<p>Appeal; from Burke superior court — Judge Hammond. October 5, 1920.</p>

<p>“The evidence against the accused was entirely circumstantial, and, while it raised a suspicion of his guilt, was not sufficient, though given its strongest intendment as against him, to exclude every other reasonable hypothesis. It was therefore error to refuse a new trial.” Williams v. State, 113 Ga. 721 (39 S. E. 487).</p>

<p>Indictment for larceny of automobile; from Fulton superior court- — Judge Humphries. December 4, 1930.</p> <p>Application for certiorari was denied by the Supreme Court.</p> <p>Paragraph 1 of the decision relates to the following ground of the motion for a new trial: “ Because the judge erred in refusing to allow the defendant to exhibit his limb to the jury, thereby showing physical evidence that he was ’incapable of driving an automobile.” From the record it appears that the limb referred to was a leg. In his statement at the trial the defendant said: “ My leg has been broken. I have got a stiff leg, and I haven’t got any pressure against it, and I couldn’t drive an automobile.”</p> <p>The charge of the court as to alibi was complained of on the ground that it “was not in the language of the law on the subject of alibi, and was prejudicial to the rights of the accused.” This part of the charge was as follows: “ Alibi, as a defense, involves the impossibility of the prisoner’s presence at the scene of the offense at the time of its commission, and the range of the evidence in respect to time and' place must be such as reasonably to exclude the ’ possibility of presence. Alibi, as a defense, should be established to the reasonable satisfaction of the jury, not beyond a reasonable doubt, but to the reasonable satisfaction of the jury, and, if so established’, that is to say, if it be established to the reasonable satisfaction of the jury that the defendant was not present at the place at the time of the commission of the offense, if such offense was committed, then it would be the duty of the jury to acquit, or, after considering the testimony on the question of alibi along with all other testimony in the ease, it is the duty of the jury to consider all of the evidence in the case, and if the jury should entertain a reasonable doubt as to the guilt of the defendant, it is their duty to give the benefit of that doubt and acquit.”</p>

<p>Indictment for murder — conviction of involuntary manslaughter ; from Fulton superior court — Judge Humphries. December 4, 1930.</p>

<p>1. Even if it was error to admit evidence that an automobile was being driven at an estimated speed of 40 miles an hour when a quarter of a mile away from and going in the direction of a person whom it struck, causing injury from which death resulted, the error was not so material as to require the grant of a new trial, when there was positive proof that at the time and place of the injury the automobile was running at a much higher speed.</p> <p>2. “ Grounds of a motion for a new trial should be complete in themselves; and when a particular ground is under consideration, reference to other grounds should not be required in order to understand the assignments of error.”</p> <p>3. When read in connection with the entire charge, there is no error in the excerpt of which complaint is made in the 6th ground of the motion for a new trial.</p> <p>4 The assignment of error in the 9th ground of the motion for a new trial, as to failure of the court to charge “the law” on the subjecttliere stated, is' too vague and indefinite to raise any question for determination by this court.</p> <p>5. When all the facts and circumstances are considered, this court cannot, say, as a matter of law, that the trial judge abused his discretion in refusing to declare a mistrial.</p> <p>6. In so far as the principles of law embodied in the request to charge are legal and pertinent, they are covered by the charge given.</p>

<p>Action for damages; from city court of Hall county — Judge Wheeler. November 27, 1920.</p> <p>The motion to dismiss the writ of error was on the grounds, that no brief of the evidence was specified therein or sent up as a part of the record; that the questions raised by the assignment of error upon the exceptions pendente lite could not be considered and determined in this case; and that the bill of exceptions did not set forth or specify the judgments overruling the demurrers, upon which error was assigned. The brief of the evidence was sent up after the filing of the motion to dismiss.</p>

<p>Complaint; from city court of Hall county- — -Judge J. B. Jones presiding. November 15, 1920. ,</p>

<p>Complaint; from Candler superior court — -Judge Hardeman. December 4, 1920.</p>

<p>Indictment for burglary; from Bibb superior court — Judge Terrell presiding. December 11, 1920.</p>

<p>Conviction of assault with intent to rape; from Richmond superior court —■ Judge Henry C. Hammond. December 18, 1930.</p> <p>The ground referred to in the first divison of the decision was that “the court, upon motion of defendant’s counsel, refused to rule out the following testimony of Beatrice White, the prosecutrix: [set out]. Said evidence was prejudicial to the defendant, in that it tended to show that he was seeking a compromise, conscious of his guilt;” it was hearsay, and it impaired defendant’s right to have a fair, legal trial.</p>

<p>Action for damages; from Laurens superior court — Judge Kent. November 11, 1920.</p>

<p>Indictment for burglary; from Putnam superior court — Judge Park. December 15, 1920.</p>

<p>Conviction of assault with- intent to rape; from Laurens superior'court— Judge Kent. November 11, 1920.</p>

<p>The evidence authorized a finding that there was such performance on the part of one of the parties and such acceptance on the part of the other as to take the contract out of the statute of frauds.</p> <p>Tlie seller was entitled to recover as damages the difference between the contract price and the market price of the goods at the date of the breach of the contract.</p>

<p>Accusation of possessing liquor; from city court of Macon — Judge Gunn. January 7, 1921.</p>

<p>Action for damages; from city court of Bainbridge — Judge Spooner. December 23, 1920.</p> <p>The action was by a cropper against his landlord for damages on account of the alleged breach of an oral contract of rental by forcing him to leave the rented premises and abandon his crop, etc. The defendant demurred on the grounds, that the petition failed to set forth a cause of action, that it was not paragraphed as required by law, and that it failed to set out definitely the terms of the contract. The petition was as follows:</p> <p>“ The petition of R. C. White shows that he has been injured and damaged in the sum of $500 by P. D. Moore upon the following stated facts, and petitioner respectfully shows:</p> <p>“ 1. That P. D. Moore is a resident of said state and county.</p> <p>“2. That on or about the 1st day of January, 1919, petitioner moved with himself and family to a farm which petitioner had rented from said defendant in said county, petitioner moving upon and occupying said premises in compliance with a rental contract made and entered into by and between petitioner and the said P. D. Moore, which contract of rental was made orally between said parties on or about the 20th day of December, 1918.</p> <p>“ 3. Petitioner shows that the lands rented to him by said defendant comprised about 55 acres [described], and your petitioner shews that said defendant agreed to furnish him two mules to use in the cultivation of the crop rented in the said described premises, and defendant further agreed that he would build stalls and lot for stock to be used by plaintiff at the tenant house where plaintiff resided, said defendant agreeing and contracting to build said barn or stalls and make said lot immediately after plaintiff moved upon said premises, this being agreed to in a contract of rental; and petitioner further shows that in compliance with his rental contract 7 acres of land of said described premises were prepared and planted in cotton, that 2 acres of same was prepared for and planted in sugar cane, and that about 43 acres of same was prepared and planted in corn and peanuts or pinders, same being planted in rows of two of corn and one of peanuts or pinders, all of said described premises being well prepared and planted as herein stated, and that 2% acres of said land was prepared to be planted in tobacco, all the work necessary having been done on said land for a thorough and complete preparation of the same for tobacco, but defendant forced said petitioner to leave said premises by the manner in which he treated petitioner and his family, and further by proceeding to dispossess your petitioner by process of law to vacate said premises.</p> <p>“4. Your petitioner shows that he complied with his contract and agreement in every way whatsoever made with said defendant, and that when your petitioner requested the said P. D. Moore to carry out the terms of his agreement in the rental contract, by building a barn at the tenant house where petitioner resided, the said P. D. Moore refused to do the same and stated to petitioner that he recalled and remembered that he agreed to build said barn or place for petitioner to keep his stock used in working said farm at the tenant house where petitioner resided, but the said P. D. Moore stated to petitioner that he was not going to build the barn or stalls, and further that he was not going to allow stock used in cultivating said premises to be kept at the tenant house where petitioner then resided.</p> <p>“ 5. Your petitioner further shows that on or about the 6th day of June, 1919, he was served with legal process by the sheriff of said county to vacate the premises occupied by him, said process further requiring petitioner to vacate the property rented from the said defendant as described in the petition, and your petitioner shows that on or about the 16th day of June, 1919, your petitioner vacated and moved away from said described premises as described in this petition.</p> <p>“ 6. Petitioner shows that he complied with his contract of rental with said defendant, and that he in good faith prepared and planted crops on said premises as described in this petition, and that the cotton, cane, and peanuts or pinders were all planted, and the cotton, cane, and corn were all about ready to be cultivated the first time, and that it was the intention and desire of petitioner to plant the tobacco on the land that had been prepared for the same, and to cultivate the entire crop, but that the said defendant refused to comply with his contract with petitioner and further refused to allow petitioner to remain on said premises, and petitioner shows that he did. not do anything whatever to give said defendant the right to take such action as said defendant pursued, and petitioner further shows that the manner in which the said defendant treated his children and the course that was pursued was abusive and tendered in every way possible to make petitioner’s family dissatisfied to live on said premises.'</p> <p>“ 7. Petitioner shows that the said P. D. Moore did not comply with his contract as herein stated, and as a result of the breach of said contract, and, as a result of the said P. D. Moore dispossessing petitioner of said described premises, petitioner has been injured and damaged in the sum of $500, which is a conservative value of the damages to petitioner as the result of his being deprived of the rights to complete the cultivation and gathering of the crop planted, and petitioner further shows that the said P. D. Moore refused to allow him to use stock for the cultivation of the premises rented, and refused to allow the children of petitioner or any one for him to use his stock to cultivate and work said crops, the contract of rental being that of a share cropper in which the .defendant agreed to furnish stock for cultivation of the land rented in the usual custom, and, by such action on the part of defendant and by the further effort on the part of the defendant to evict petitioner, there was no other course as the matter stood, without stock to work and without tools to cultivate the crop, than' to vacate the premises, which petitioner was compelled to do by legal process caused to be issued by said defendant.</p> <p>" Petitioner shows that he complied with his contract and did not in any manner whatever, by himself or any member of his family, do anything that would give the said defendant any right to proceed in the manner that he did in dispossessing your petitioner from said premises.</p> <p>“Wherefore petitioner prays that process may issue requiring the said P. D. Moore to be and appear at the next term of said court to answer petitioner’s complaint, and that petitioner have judgment in the sum sued for in this case.”</p> <p>The defendant having, among other matters of defense, set up an arbitration and award upon the matters in dispute between them, from which it appeared that J. H. Harrison, one of the three arbitrators, was selected by the other two, the plaintiff amended the petition by adding “ that plaintiff refused to the selection of J. H. Harrison as one of the arbitrators in the purported arbitration proceedings, and refused to the further part in the proceedings after said Harrison was selected, and says that any and all further proceedings were fraudulent, in that the proceedings were against the expressed wishes of plaintiff.”</p> <p>The trial of the case resulted in a verdict for the plaintiff. The ease came to this court on exceptions to the overruling of the defendant’s demurrer and of his motion for a new trial.</p>

<p>Certiorari; from Decatur superior court — Judge Wilson. December 31, 1920.</p>

Complaint; from Washington superior court — Judge Hardeman. December 10, 1920. (Same case, 25 Ga.

<p>Indictment for kidnapping; from Thomas superior court — Judge Thomas. December 18, 1920.</p>

<p>Indictment for larceny of cow; from Thomas superior court — Judge Thomas. December 18, 1920.</p>

<p>Accusation of possessing intoxicating liquor; from city court of Hall county — Judge Wheeler. December 37, 1930.</p>

<p>Accusation of possessing intoxicating liquor; from city court of Hall county — Judge Wheeler. December 29, 1920.</p> <p>From the evidence it appears that two policemen in an automobile saw the defendant standing in a road by his Ford car, which had broken down; they stopped and he started across the road, on the other side, and they told him to stop and wait; they “saw his tracks where he had got out of the car and gone down a little bluff;” the ground was muddy, and the tracks were those of a long keen-toed shoe; one of the policemen followed the tracks and found in the woods, at a distance of about 20 or 30 feet from the ear, a jug containing about three gallons of whisky, and brought it back; the other policeman then followed the tracks a little further and found a ten-gallon keg of whisky, which he bro'ught back; the policemen put the jug and the keg in their automobile, and, taking the defendant with them in their ear, went “ back to town.” The defendant said there was a man at Cain’s shop who would make his bond; that a man who had come with him from Pendergrass was waiting at Cain’s shop; they went there in the automobile, and the defendant pointed to a man standing across the street from Cain’s shop and said that this man was the man; the policemen motioned or called to him to come up to them, and the first thing the man said was that he knew nothing at all about “ that liquor;” that he “ just rode up with that man.” The defendant was present and heard this. When the man said this the doors of the car were shut and the man was standing on the sidewalk. In the motion for a new trial it was alleged that the court erred in admitting the testimony of the policeman as to the statement of this man that he knew nothing about the liquor, counsel for the defendant having objected to it as being irrelevant and hearsay, and as being a voluntary expression which would not bind the defendant or connect him with the liquor.</p>

<p>Conviction of manslaughter; from Banks superior court — Judge Cobb. December 17, 1920.</p>

<p>1. There was no error in admitting the evidence as to trailing by bloodhounds, of which complaint is made in the 4th ground of the motion for a new trial.</p> <p>2. (<j) There was ample evidence to authorize the court to charge the jury in regard to evidence as to the actions and conduct of a certain dog, as complained of in the 5th ground of the motion for a new trial.</p> <p>(6) “A correct statement of law embraced in a charge to the jury is not erroneous because the court failed in the same connection to give to the jury other appropriate instructions.”</p> <p>3. That portion of the charge excepted to in ground 6 of the motion for a new trial, as to what is necessary to constitute the offense of assault with intent to murder, is not erroneous for either of the reasons urged against it.</p> <p>4. The judge did not err in failing “ to give in charge to the jury the law regarding the offense of unlawfully shooting at another, as defined in § 115 of the Penal Code.”</p> <p>5. The evidence supports the verdict.</p>

<p>An objection to tlie admission of evidence, “ on the ground that it is not the proper subject-matter of investigation,” is too general and indefinite to be considered.</p> <p>(a) The further objection, that “ it is not responsive to the question,” even if g-ood, did not, under the facts of the case, extend to and apply to evidence subsequently elicited from the same witness by another question, the objection not having been renewed.</p>

<p>Indictment for possessing liquor; from Randolph superior court — Judge Worrill. November 29, 1920.</p>

<p>Indictment for obtaining money by personating another; from Bibb superior court — Judge Mathews. January 3, 1921.</p>

<p>Accusation of 'misdemeanor; from city court of Carrollton — Judge Hood. January 8, 1921.</p>

<p>Indictment for making intoxicating liquor;-from Crawford superior court — Judge Mathews. January 25, 1921.</p> <p>The judge’s question to the defendant, quoted in the first headnote, was alleged to have been prejudicial because it “tended to create in the minds of the jury the impression that the court did not think the defendant’s statement was a sufficient defense.”</p>

<p>Accusation of misdemeanor; from city court of Washington — Judge Sutton. December 13, 1920.</p>

<p>1. Venue could be sufficiently shown by evidence that the liquor which the defendant was charged with having in his possession was procured “ somewhere on the west side of the county ” and at his house, not more than three miles from a certain place which was something like six and a half to seven miles from the county line.</p> <p>2. It was not error to admit testimony that before the alleged date of the defendant’s possession of the liquor the witness made “ some arrangements of some kind with him . . about getting some liquor,” and that it seemed that the defendant told the witness that he knew where he could get some.</p> <p>3. Evidence that the appearance bond of the defendant had been forfeited was admissible as tending to show flight.</p> <p>4. On the trial of one charged with a violation of the provisions of the statute prohibiting any person to “ have, control, or possess ” certain liquors, the use of the word “ custody,” in charging the jury that it was their duty to convict if the defendant was “ in possession, custody, or control” of such liquors, was not cause for a new trial.</p>

<p>Indictment for carrying pistol; from Douglas superior court — — Judge Irwin. December 30, 1920.</p>

<p>Conviction of manslaughter; from Wheeler superior court — Judge E. D. Graham. December 27, 1920.</p>

<p>Indictment for making liquor; from Campbell superior court — Judge Hutcheson. January 25, 1921.</p>

Indictment for assault with intent to murder; from Crawford superior court — Judge Mathews. January 5, 1921. A ground of the motion for a new trial is that the court omitted to charge the jury that the burden is upon the State to prove the defendant’s guilt beyond a reasonable doubt, and that this burden is not shifted until the State has proved such guilt beyond a reasonable doubt.

<p>Accusation of violation of liquor law; from city court of Dublin — Judge Sturgis. January 15, 1921.</p>

<p>1. This court is not authorized to transfer any case to the Supreme Court on the ground that it involves the constitutionality of a statute of the State, where the grounds attacking the statute as unconstitutional fail to point out specifically what provision of the constitution (article, section, and paragraph) is alleged to have been violated.</p> <p>2. Even if the assignment of error in the 5th ground of the motion for a new trial, that “ the oourt erred in failing to charge the jury on the rule of evidence known as circumstantial evidence,” is sufiiieient (see Goen v. State, 24 Ga. App. 370(1), 100 S. E. 479), the failure to charge on circumstantial evidence in this case was not error.</p> <p>3. The judge charged the jury that the accused came before them charged with the offense of “knowingly and wilfully permitting one to locate on his premises in possession an apparatus for distilling whisky and rum,” and read to them the statute which made it unlawful for anyone to “ knowingly permit or allow any one to have or possess or locate on his premises any apparatus for distilling or manufacturing ” such liquors, and told them that they must “ believe, beyond a reasonable doubt and under the rules of law as given them in charge, that the defendant Charlie Miller is guilty of the offense of permitting a still to be located on his premises as alleged in the accusation,” before they should find him guilty. This sufficiently covered “guilty knowledge,” and the complaints in grounds 6, 8, and 9 of the motion for a new trial, in reference to a failure to charge further in reference thereto, are without merit.</p> <p>4. The instruction complained of in the 7th ground of the motion for a new trial is in the exact language of the 2d clause of section 22 of the prohibition act of 1917 (Ga. L. Ex. Sess. 1917, p. 18). So to charge was not error.</p> <p>5. The judge was requested to charge the jury as follows: “You would have to find beyond a reasonable doubt, before you convicted the defendant, that the apparatus in question was located on the premises owned by this defendant.” This was not a correct statement of the law, and the judge properly refused to give it in charge. Under this law others besides the owner of the premises may be convicted.</p> <p>6. The following charge of the court was not error: “ In this case the defendant has made a statement. This is not under o.ath, and shall have such weight only as the jury may think right to give it. You may believe it in preference to the sworn testimony in the case.” See Wilder v. State, 148 6a. 270(2) (96 S. E. 325) ; Suple v. State, 133 6a. 601(2) 602(2) (66 S. E. 919); Taylor v. State, 132 6a. 235(1 a) (63 S. E. 1116).</p> <p>7. The evidence supports the verdict, and the judge did not err in overruling the motion for a new trial.</p>

<p>Accusation of misdemeanor; from city court of Dublin — Judge Sturgis. January 8, 1921.</p>

<p>Indictment for burglary; from Bibb superior court — Judge Mathews. January 5, 1921.</p>

<p>Accusation of possessing liquor; from city court of Hall county — Judge Sloan. January 5, 1921.</p> <p>A policeman of the town of Lula, Georgia, testified that on a certain night two automobiles — one a Ford ana the other a Dodge car — came into Lula, and when the men driving them saw him they began to shoot and drove faster, that they ran into some brush in a road and jumped out of the cars and ran off, and he could not see them well enough to identify them; and that a few days later the defendant came to Lula to see about the car; he claimed that his car was missing. About 50 gallons of whisky were in each car. J. M. Brock testified, that after the shooting, “ on the night that the cars came through Lula, . . some parties ” ran into his yard in Lula; that he could not see them well enough to know them, “ but one of them was a heavy-set man with a mustache.” “ The best I could tell, he filled the description of that man over there. I did not know Mr. Culberson. I sort of believe it was him. It was not light. . . I would not swear it was him; it fills his description.” A county policeman testified, that some days after the night mentioned he “ pointed Culberson out, and Brock said he (Culberson) was the man that ran into his yard on the night of the shooting.” The sheriff testified as to finding the whisky in the cars, and that by telephone he learned from the secretary of State that the Dodge car had a license-tag purchased by H. J. Culberson, and a warrant was sworn out for him; that not many days after the cars were captured, Culberson sent out cards, “ trying to locate his car, that he claimed had been stolen,” and some time later he gave himself up and made bond. Witnesses for the defendant testified as to his statements that his car had been stolen, and his efforts to find it. The defendant, in his statement at the trial, said: “As soon as I found that there was a warrant for me in this county I came to Gainesville and surrendered. I had not committed any crime in this county. I don’t know who drove the automobile.”</p>

<p>Indictment for murder — conviction of involuntary manslaughter ; from Tattnall superior court ■ — ■ Judge Sheppard. January 1, 1921.</p>

<p>Indictment for larceny of automobile; from Clarke superior court — Judge Cobb. January 11, 1921.</p> <p>As to recent possession of stolen goods the court charged the jury as follows: “If you are satisfied, after giving due consideration to all of the evidence and the statement of the accused, that the offense alleged in the indictment was committed by some one, and that, very soon after the commission of that offense, the goods alleged to have been stolen at the time of its commission were found in the recent possession of the defendant, such possession, unless explained to the satisfaction of the jury, is a circumstance which the jury may consider in determining the guilt or innocence of the accused.”</p> <p>In the motion for a new trial it is alleged that this is erroneous: (1) because the evidence showed that possession of the ear by movant was not recent, and therefore this charge was inapplicable; (2) because the court assumed in this charge to pass upon the question of what is recent possession of stolen goods, which is a fact for the determination of the jury; (3) because if it was proper to charge upon the subject of recent possession, the court erred in failing to instruct the jury that they were the judges of whether the possession was recent or not; (4) because the court erred in failing to instruct the jury that the charge upon the subject of recent possession of stolen property should not be considered unless they believed, from the evidence, that the possession of the car was recent, in the meaning of the law; (5) because the court erred in failing to charge the jury as to the legal meaning of the words, “ recent possession.”</p>

<p>Accusation of cbeating and swindling; from city court of Tbomasville — Judge W. H. Hammond. January 18, 1921.</p> <p>The accusation was as follows: “By virtue of the affidavit of Clarice Leggins, filed in said court, and in the name and behalf of the citizens of Georgia, H. Goldstein is charged and accused with having committed the offense of misdemeanor, for that the said H. Goldstein, on the 22d day of November, in the year 1920, in Thomas county, State of Georgia, with force and arms, then and there did unlawfully, wrongfully, and fraudulently represent to Clarice Leggins that he would put aside and keep for her a certain brown coat suit which she then and there selected, if she would pay him $3 in cash and $20.98' at any time before Christmas, 1920; when the said Clarice Leggins paid the full amount of $23.98 as aforesaid, he would deliver her the said coat suit; the said Clarice Leggins paid the said BE. Goldstein $15.50 on said suit, and on the 20th day of December, 1920, the said Clarice Leggins tendered the said H. Goldstein the $8.48 that was still due, and demanded the suit; the said H. Goldstein refused to deliver her said suit or return her the said $15.50 she had already paid on thé same; that the said representations were made with intent to defraud, and that they had deceived and defrauded the said Clarice Leggins; that the said BE. Goldstein knowingly made said false representations; that Clarice Leggins, relying on said representations, was induced to part with the sum of $15.50, thereby being cheated and swindled by said H. Goldstein out of the said sum of $15.50, contrary to the laws of said State, the peace, good order, and dignity thereof.”</p> <p>The ground of the motion in arrest of judgment was that the accusation “ sets out no offense under the laws of the State of Georgia.” In the bill of exceptions it is alleged that the judgment overruling this motion was erroneous because (1) the accusation “ showed on its face that it was only a breach of a promise to perform in .the future,” and (2) the accusation “showed on its face that there was no false representation as to a past or existing fact.”</p>

<p>Indictment for murder — conviction of manslaughter; from Rockdale superior court — Judge Hutcheson. January 24,1921.</p>

Action on insurance policy; from city court of Sylvester — Judge Monk. January 13, 1920. See Thornton v. Germania Fire Insurance Co., 151 Ga. 312 (106 S. E. 26.4). Mrs. Mary E. Thornton, doing business in the name of Bridgeboro Mercantile Company, brought suit against the Germania Eire Insurance Company upon a policy of fire insurance.

<p>Complaint; from city conrt of Albany — Judge Clayton Jones. November 10, 1920.</p> <p>On general demurrer the court dismissed the petition as amended, which alleges: The defendant .is indebted to the plaintiff in the sum of $250, on the following state of facts: On August 26, 1919, defendant authorized plaintiff to sell his house and lot in the City of Albany, Georgia, at the corner of Broad and Monroe streets for $10,000 net to him, and plaintiff, in pursuance of this authority, finally succeeded in selling the premises to Samuel Weldon, of Albany, Georgia, on March 3, 1920, for $10,250, said Weldon being ready, willing, and able to buy, and offering to buy said premises on the terms stipulated by the owner; and on the same day plaintiff telegraphed defendant that he had sold the said premises on the authority given him on August 26, 1919, and that a part of the purchase-price had been paid, and that the balance would be paid upon his giving possession of the premises and executing a satisfactory deed. The defendant replied that conditions had changed and that he would not sell the said property, and he refused and has continued to refuse to execute a deed to it as provided for in the sale. The authority given plaintiff on August 26, 1919, to sell said property has never been revoked, and plaintiff, by his failure and refusal to consummate the trade as provided for in the said authority to sell, has damaged plaintiff in the sum of $250, the difference between the net price required by defendant and the sale price to the said Weldon, which overplus defendant agreed to give plaintiff as brokerage for selling the premises, in that the circumstances surrounding the giving of, and the intent and meaning of, the authority to sell, taken in its entirety, indicate, include, and constitute an offer to give plaintiff all overplus received for the property as his brokerage for selling the land, and which the defendant admits in writing. Attached to the petition were a copy of the letter of the defendant to the plaintiff, dated August 26, 1919, authorizing the sale for $10,000 net to the defendant, and a copy of the telegram referred to above. It is alleged' that to a letter of the plaintiff, dated April 21, 1920, requesting a check for $250 as the amount of his compensation, the defendant replied by a letter, set out, in which the defendant referred to the change of conditions with him, and said that the sale was not and would not be confirmed, and " I also regret the loss of the commission to yon.” It is alleged that this statement as to the com-, mission shows that the defendant intended to give and did give to the plaintiff, as his commission for finding said purchaser, all overplus in the sale above $10,000, and the same was so understood by both plaintiff and defendant. It is further alleged, by amendment, that the words of the authority to sell the property for $10,000 net were ambiguous and not sufficiently definite to express the defendant’s mind, and that parol evidence should be permitted to show what the defendant meant by the authority set forth.</p>

<p>1. Tie petition in tie instant case was not subject to dismissal on demurrer upon tie ground that tie defendant’s negligence was not the proximate cause of tie death of petitioner’s minor child.</p> <p>2. Where, on demurrer to a petition, the petition is amended without objection, and the judgment thereon states that the “within demurrer is sustained and the petition as amended dismissed,” the petition as amended, and not the petition as it originally stood, will be looked to in determining whether there was error in sustaining the demurrer.</p> <p>3. Where the petition sets out a good cause of action for the loss of the services of a minor child during her minority, it should not be dismissed on demurrer because of impertinent and unnecessary allegations.</p> <p>4. The petition as amended was not subject to any of the objections interposed by the demurrer, and the judge erred in sustaining the demurrer and dismissing the petition. ■</p>

<p>1. There was no harmful error, if error at all, in sustaining paragraphs 1 and 3 of the demurrer to the original answer, in view of the amendment to the answer, subsequently allowed.</p> <p>2. Under the facts of the ease the court erred in directing a verdict for the plaintiff.</p>

<p>Accusation of larceny; from city court of Albany — Judge Clayton Jones. December 24, 1921.</p>

<p>Indictment for murder — conviction of manslaughter;' from Dougherty superior court — Judge Wilson. December 27, 1920.</p> <p>The 6th and 8th divisions of the decision relate respectively to assignments of error set out below:</p> <p>6. Ground 13: Because the court erred in charging the jury as follows: "The court charges you that, if the deceased was not carrying a pistol at the time and place of the killing, the evidence which the defendant has offered, to the effect that the deceased habitually carried a pistol, will be considered by you only in the event that you believe the defendant had knowledge of such habit, and only for the purpose of illustrating whether the defendant killed under a reasonable fear that a felonious assault was about to be committed upon him ”— the error in said charge being: (a) it is incorrect as an abstract proposition of law; (6) the court confined the effect of the evidence submitted by the defendant, that the deceased had habitually carried a pistol, to the purpose of illustrating whether the defendant killed upon a reasonable fear that a felonious assault was about to be committed upon him, whereas such evidence was admissible under the circumstances stated, to wit, that the defendant had knowledge of such habit, not only within the limits confined by such charge, but also for the purpose of illustrating all the circumstances surrounding the killing, and particularly illustrating the conduct of the deceased at and immediately before the time of the killing; (c) it is an intimation of opinion by the court that there was no evidence that the deceased had a pistol at the time of the killing, whereas movant contended during the trial of the case that the deceased might have had such pistol, and the pistol might have been moved from his person in the same manner as some other evidence, as movant contends, had been concealed prior to the trial of the case.</p> <p>Note by the court the foregoing ground: “ The following excerpt from the charge was given by the court on request of defendant: e If you believe from the evidence in this case, including the statement of the defendant, that the deceased carried a pistol, and that the deceased habitually carried a pistol, and that this was known to the accused, you may consider such evidence for the purpose of determining whether the killing in this case was done by the accused under the influence of the fears that the deceased was about to commit a felony upon him, or take his life, even though it may appear that upon the occasion of the homicide the deceased did not actually have a pistol upon his person.’ ”</p> <p>8. The instructions set out in the 8th division of the decision are complained of “because the use of the words, *means of inflicting the threatening danger, if any, must be apparently at hand at the time,’ excluded from the consideration of the jury the theory and contention of the defendant that the deceased intended to commit a felonious assault upon him, or to take his life at the time he shot, and that the defendant in good faith thought that the deceased had a pistol in his possession; the language quoted apparently impressing the jury with the idea, as movant contends, that in fact the deceased must have had a pistol or other means of inflicting the threatening danger; and because the charge quoted excluded from the consideration of the jury the contention and theory of the defendant that the deceased was endeavoring to take, and would have succeeded in taking (on account of his superior physical weight) from the defendant, the pistol in the possession of the defendant, and then would have committed a personal felonious injury upon the defendant.”</p>

<p>Indictment for burglary; from Bibb superior court — Judge Mathews. January 5, 1921.</p> <p>Julius Glover was convicted under an indictment which charged him with having broken and entered the smokehouse of J. N Davis and taken from it certain flour, lard, hams, and side meat, with intent to steal. His brother, Reese Glover, testified, in part: “I am charged with my brother with breaking into Mr. Davis’s smokehouse. . . On the night of the 24th of May of this year I saw my brother Julius; my brother came to my house . . about 11 o’clock, . . and he asked me to come and go with him. . I went on up there . . and he was at the smokehouse. . . I stood at the door and he got 50 pounds of flour and 100 pounds of lard, and . . he got some meat. I don’t know what he did with it. He left there with it. His wagon was down the road there somewhere. He carried it in the direction of the wagon. I suppose he unlocked the smokehouse to get in it. The door was not unlocked. He was there before I got there. . The door was open. . . He was not in a wagon when he came to my house. I live with Mr. Davis on his place; it is not very far from Mr. Davis’s dwelling house, it may be about 200 yards. . . Julius went through the path that goes through the woods to my house, and that was the way he went back. I didn’t see the wagon. I don’t know where he carried the stuff. I didn’t go with him any further. . . I didn’t give him the key. ■ Standing around there looking is all that I did. . . He took three turns to carry it.”</p> <p>None of the stolen property was found, so far as appeared from the evidence, but there was testimony as to traces of flour and of a wagon and a mule in the road for some distance from the premises of J. N. Davis, and as to flour on the defendant’s hands and his being in a wagon and driving a mule' the next day after the taking of the things from the smokehouse. Davis testified that he lived about seven miles from Macon, and that on the 25th of May between 12 and 1 o’clock in the day he met the defendant with a wagon and a mule in the road about 5 miles from Macon, peddling cabbages, potatoes, and onions; “he had a stiff-kneed mule in his hind foot, and that heel hardly ever touched the ground; it walked on that tip; . . the crippled foot was the left foot;” the mule could be tracked “ by the foot, and the same foot.” There had been rain the preceding night. The witness further testified: “We had his house searched, but we couldn’t find anything. I didn’t see any flour in his wagon. I saw flour all over his hands and in the crack of his hands. They were all cracked open. . . I called the sheriff’s attention to it. . . His brother Reese Glover lives with me. . . I had two sets of keys to the smokehouse, . . and Reese had mine to feed with, and three or four weeks before this happened my wife’s bunch of keys disappeared. . . I never found the keys that were lost.” The deputy sheriff, who arrested the defendant, testified that Mr. Davis called his attention to the defendant’s hands, and “ he looked like he was handling flour, or lime, white, in the cracks of his hands.”</p>

Indictment for manufacture of liquor, etc.; from Haralson superior court — Judge Irwin. December 20, 1920. The indictment charged John Oswalt with violation of the prohibition law by manufacture of liquors, possession of liquors, and possession of apparatus for the manufacture of liquors. There was a general verdict of guilty.

Action for damages; from city court of Atlanta — Judge Eeid. June 8, 1920. Mrs. E. S. Smith sued the Director-General of Eailroads, the Western & Atlantic Railroad Company, and the Eeed Oil Company, for damages on account of the homicide of her minor son, Zion Smith, she being a widow.

<p>Indictment for larceny of cotton; from Grady superior court — Judge Wilson. December 31, 1920.</p>

<p>Trover; from Muscogee superior court — Judge Howard. July 10, 1920.</p>

<p>Complaint; from city court of Tbomasville — Judge W. H. Hammond. July 19, 1920.</p>

<p>1. By section 3101 of the Civil Code (1910), which provides that “the fees of the ordinaries of the several counties of this State, for making out commissions of lunacy and all other services connected therewith, shall be five dollars and no more,” the fixed amount of costs thus given the ordinaries in such a proceeding must be held to include their compensation for all services necessary or incidental thereto, including the swearing of the commissioners, when such act is performed by the ordinary.</p> <p>2. The fact that erroneous charges for such an additional item of cost were made in good faith by the mutual mistake of the ordinary and the county commissioners, and that such erroneous items were paid to the ordinary on warrants drawn by the county commissioners, would not prevent the county from bringing a suit for their recovery, within the four-year period of limitation.</p>

<p>Action for damages; from Campbell superior court — Judge Hutcheson. June 35, 1930.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>1. If the original petition contain enough to amend by, a plaintiff may, at any stage of the cause, as matter of right, amend his petition by adding another and separate count based upon the same cause of action. Civil Code (1910), §§ 5681-83;. Maxwell v. Harrison, 8 Ga. 61(2); Gainesville &c. Ry. Co. v. Austin, 122 Ga. 823, 824(3) (50 S. E. 983); Cooper v. Portner Brewing Co., 112 Ga. 894(3), 900 (38 S. E. 91); Southern Ry. Co. v. Chambers, 126 Ga. 404(5) (55 S. E. 37, 7 L. R. A. (N. S.) 926) ; National Surety Co. v. Farmers Bank, 145 Ga. 461(1) (89 S. E. 581); 31 Cyc. 409; 6 Stand. Enc. Procedure, 710.</p> <p>2. Where, in order to prevent a dismissal of the plaintiffs’ petition, under an order of the court sustaining a demurrer setting up a different construction of the contract sued on, the plaintiffs tendered an amendment, as permitted by the order of the court and conforming to the court’s construction of the contract, but made in the form of a second and independent count, it was error to disallow such ah amendment and dismiss the petition,. where the construction of the contract as thus sued on was the proper and correct one. In such a case it is unnecessary to determine whether or not, after offering such an amendment, as in compliance with the court’s order on the demurrer, the plaintiffs, might complain not only that the court erred in dismissing the petition as amended by the second count, but also that the petition was good on the original count. See Glover v. Savannah Ry. Co., 107 Ga. 34(3) (32 S. E. 876); Fai-rer v. Edwards, 144 Ga. 553(1) (87 S. E. 777) ; McConnell v. Frank E. Block Co., 26 Ga. App. 550 (106 S. E. 617); Gainesville <&o. Ry. Co. v. Austin, 127 Ga. 120(1) (56 S. E. 254) ; Hay v. Collins, 118 Ga. 243(2) (44 S. E. 1002) ; Southern Ry. Co. v. Chambers, 126 Ga. 404(5) (55 S. E. 37, 7 L. R. A. (1ST. S.) 926); National Surety Co. v. Fwmers Bank, 145 Ga. 461, 467 (89 S. E. 581)-.</p> <p>3. The court did not err in its construction of the contract, but erred in refusing to allow the proffered amendment by which the plaintiffs sought to add to the petition a count in accordance with such construction, and in dismissing the petition.</p>

<p>Action for damages; from city court of Bainbridge — Judge Spooner. August 16, 1920:</p>

<p>Distraint; from DeKalb superior court — Judge Hutcheson. July 26, 1920.</p>

<p>Action for damages; from city court of Thomasville — Judge W. H. Hammond. July 19, 1920.</p>

<p>Trover; from city court of Greensboro — Judge Brown. July 17, 1920.</p> <p>Tbe exceptions, are to the-overruling of the defendant’s motion for a new trial, based on general grounds only. According to the plaintiff’s evidence, he and the defendant exchanged mules upon the express agreement that if the defendant’s mule " was not sound and all right, it was no trade,” and the mule delivered to the defendant was to be again the plaintiff’s mule, and vice versa. The mule received by the plaintiff proved to be deaf, and, immediately on his discovery of the defect, he sough", to restore the original status. By trover he sought to recover the mule delivered to the defendant, and the verdict was in his favor. The contention made in the brief of counsel for the plaintiff in error is that deafness is not "unsoundness” or such a defect as would prevent the animal from being considered “ sound and all right.”</p>

<p>Attachment; from Calhoun superior court — Judge Harrell. June 7, 1920.</p>

<p>Certiorari; from Evans superior court — Judge Sheppard. July 19, 1920.</p>

<p>Certiorari; from Fulton superior court — Judge Ellis. June 28, 1920.</p>

<p>Levy and claim; from Taliaferro superior court — Judge Walker. August 23, 1920.</p>

<p>Levy and claim; from Montgomery superior court- — -Judge Graham. August 6, 1920.</p>

Distraint; from Barrow superior court — Judge Cobb. October 28, 1920. A distress warrant was levied for rent alleged to be due in 1917. A counter-affidavit was made and bond given, as provided by statute, and on the trial of the issue thus made the verdict was adverse to the plaintiff. Her motion for a new trial was overruled, and she excepted.

<p>Attachment; from Colquitt superior court — Judge Thomas. November 9, 1920.</p>

<p>Action on contract; from city court of Polk county — Judge Tison. November 19, 1920.</p> <p>In this suit J. J. Williamson & Company sought to recover as damages the difference between the contract price and the market price in the purchase and sale of 150 bales of cotton alleged to have been purchased by them from the defendant, J. A. Morgan. The facts briefly stated make the following case: Both parties were engaged in the business of buying and selling cotton. On October 22, 1918, the plaintiffs’ agent, at Rockmart, bought for them from the defendant by parol contract 150 bales of cotton, and the contract was confirmed by the defendant on the same day by letter as follows: “Rockmart, Ga., Oct. 22, 1918. Messrs. J. J. Williamson & Co., Atlanta, Ga. Dear Sirs: Beg to confirm the sale of 150 bales of cotton sold to you to-day at 37% basis Atlanta 4’s Atlanta grades and differences, f. o. b. Rockmart. Yours truly, J. A. Morgan.” No actual date of delivery of the cotton is fixed by the contract. The evidence of the plaintiffs shows, however, that in the territory where this contract was made it was the custom for the purchaser to take up deliveries within ten days after purchase, and, according to their agent, the seller knew, at the time of making the contract, that the purchasers, through their agent, would not take the cotton for some days, as the agent was then leaving Rockmart to inspect and receive cotton bought at other points. On the afternoon of October 27, five days afterwards, the plaintiffs in Atlanta called up the defendant over the telephone, and asked what date would be agreeable to deliver and pay for the cotton. The defendant answered that the time for such delivery would expire that day at sundown, and that if the cotton were not called for and paid for before that time, the trade would be off. It was then too late for the plaintiffs to reach Rockmart by any train that afternoon and the defendant was notified that the plaintiffs considered the trade still binding and would caU for the cotton the next day and their agent was sent by the next morning’s train with the money to receive and pay for the cotton. On arriving at Rockmart the agent found that the defendant had already sold the cotton and was in the act of delivering it to another party, and refused to carry out the contract with the plaintiffs. The evidence is uneontrádicted that the difference in the contract price and the market price was $1,312.50, for which amount the suit was brought.</p> <p>According to the testimony of the plaintiffs’ agent, he asked the defendant at Rockmart if he (the defendant) was offering any cotton that day, and the defendant answered that he had offered 150 bales at 37% cents that day, and the agent asked if the defendant would allow him to make that offer if the other party did. not take it. The agent testified: After a while “ he said I might make the offer. I went over to the hotel and offered it to my house at 37% cents and they took it. I went back and told him they would take it, and wrote out a confirmation. I gave it to him and he said it was all right.” This refers to the confirmation heretofore set out in full in this statement. The defendant in his testimony admitted substantially the facts as stated above. He admitted the sale of the cotton, the confirmation of the sale of the cotton, and all that took place subsequently, but denied that there was a custom to give ten days for delivery by the seller to the purchaser of the cottou bought; stating that he did not know of any such custom, but that usually, in making sales in Eockmart, time was sacrificed for delivery, unless the cotton was taken up at the time of the sale, and as to this sale it was understood by the plaintiffs’ agent and himself that the 150 bales of cotton which had been sold on October 22 would be taken up “any time during the week or any time during the day of October 28, Tuesday.” There was no mention of any custom or reasonable time to take up the cotton. At the conclusion of the evidence, on motion of the defendant, a nonsuit was awarded. The plaintiffs’ motion for a new trial, based upon the usual general grounds, was overruled, and they excepted.</p>

Affidavit of illegality; from city court of Nashville — Judge Henson presiding. November 24, 1920. The only questions submitted to the juiy by the charge of the court were as to whether the affidavit of illegality was filed for the purpose of delay, and if so, the amount of damages. The verdict was “ in favor of the fi. fa. and against the illegality,” as directed by the court, and for $50 damages.

<p>Action for damages; from city court of Atlanta — Judge Eeid. October 9, 1920.</p>

<p>Certiorari; from Pulton superior court — Judge Bell. October 15, 1920.</p>

<p>Appeal from Bibb superior court — Judge Malcolm D. Jones. September 17, 1920.</p>

<p>Action for damages; from city court of Macon — Judge Gunn.' December 31, 1920.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

Action for damages; from city court of Atlanta —■ Judge Beid. May 22, 1920.

<p>Eviction; from Eulton superior court — Judge Bell. July 15, 1920.</p>

<p>Action for damages; from Chatham superior court — Judge Meldrim. August 4, 1920.</p>

<p>Action on contract; from city court of LaG-range — Judge Duke Davis. September 24, 1920.</p>

<p>(Certiorari was granted by the Supreme Court.)</p> <p>Actions for damages; from city court of Atlanta — Judge Eeid. June 12, 1920.</p> <p>Mrs. Bolader was injured by the fall of an elevator in which she was a passenger, while a guest in a hotel, and she sued for damages on account of pain and suffering, and obtained a verdict for $5,000. Her husband, in a separate action, tried at the same time, recovered for loss of her services. There were separate motions for a new trial and separate bills of exceptions in the two cases, and both cases were heard in this court together. Mrs. Bolader testified that when she came to herself at the place where she was taken off the elevator she was drawn double, her back was bent, and her left foot and leg were twisted around, and the top of the foot was “on the bottom where the bottom should be;” that she was taken to a hospital, where her foot was “ kind of straightened around” and a plaster east was placed'around her leg and ankle; that when she was taken from the hospital about a month later she was still drawn double, and had a strained back, and that until and at the time of testifying (about a year later) she suffered across the small of her back and from her ankle, and was a nervous wreck, and that her foot continued turned to one side and she limped and could not walk straight, and could not without suffering stand on it, as she was required to do in her trade of milliner; that her back and her foot and leg would give out when she stood for a short time; and that'before the injury she was in good health and none of these conditions existed. Her physician testified that the injury to the foot might “very likely cause permanent trouble,” but he “would not say positively so, because some do recover quite completely from such injury;” and that the injury would tend to shock the nervous system.</p>

<p>Affidavit of illegality; from Mitchell superior court — Judge Wilson. October 10, 1920.</p>

<p>Complaint; from city court of Americus — Judge Harper. November 5, 1920.</p> <p>Paragraph 4 of the decision relates to the following ground of the demurrer: “4th. Defendant demurs specially to the whole petition as drawn, because it is hot shown that the McMath Plantation Company ever breached the contract that is alleged was made with plaintiff, in that it is not alleged that the McMath Plantation Company ever sold the said plantation to the purchasers, or ever failed or refused to sell to them on the terms or under the contract alleged in the plaintiff’s petition.”</p> <p>The petition alleges, that in June, 1919, the McMath Plantation Company employed the plaintiffs to sell for it at any time between June and December of that year a described plantation and all the personal property thereon, and to pay to the plaintiffs a commission of 5 per cent, if the sale should be made according to the terms hereinafter stated; that the price at which the McMath Plantation Company authorized and instructed the plaintiffs to sell the property was $70 per acre, which would include the personal property; that a few days after the pláintiffs had been so employed they interested named persons in the property, after showing it to them on different occasions, and in September, 1919, were advised by these persons that they expected to buy the property at the price stated above, .and at the solicitation of the plaintiffs they called during that month on R. L. McMath, the president of the McMath Plantation Company, and who was acting for it, and proposed to buy the property at the price stated above; that they were financially able to pay that price, and proposed to do so prior to December 1, 1919, during the time when the plaintiffs were authorized and employed to make the sale; that R. L. McMath, the president of the said company, acting for it, employed the plaintiffs to make the sale upon the terms aforesaid, and the plaintiffs succeeded, as stated, in finding the said purchasers, who were ready, willing, and able, and offered to buy on the terms stated above; that the said persons never knew of this property until the plaintiffs showed it to them and interested them in it, and it was through the efforts of the plaintiffs, during their term of employment by the McMath Plantation Company, that the company and the said persons were brought together and the said offer to buy was actually made, and therefore the said company is indebted to the plaintiffs in a stated sum, payment of which the plaintiffs have demanded of the said company, and payment has been refused.</p>

<p>Certiorari; from Fulton superior court ■— Judge Bell. October 27, 1920.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Action for damages; from Bibb superior court- — -Judge Mathews. October 6, 1920.</p>

<p>Condemnation under liquor law; from city court of Hinesville — Judge W. C. Hodges. October 20, 1920.</p>

<p>Action for damages; from city court of Tifton — Judge Price. November 10, 1920.</p> <p>Application for certiorari was denied by the Supreme Court.</p> <p>The exceptions are to the dismissal of the plaintiff’s petition, on general demurrer. The action was for damages on account of injuries to live stock in transportation by the defendant carrier between points in this State in December, 1918. The petition was filed in February, 1920. By amendment, after the defendant had filed a plea setting up the stipulation mentioned in the decision, the plaintiff alleged: “ That part of said contract of affreightment which limits the right to bring action for damages under said contract to six months has been waived by the defendant, for the reason that they invited this plaintiff to file with it a claim for said damages, taking into their possession the bill of lading, expense bill, and all the other necessary papers to constitute said claim, promising to make investigation, and if found to be liable would pay the same. . . They kept said claim under the pretext of investigating their liability until about three months ago, when they notified this plaintiff that they were not responsible and would not pay the claim, and have not as yet returned the claim papers. Plaintiff says that on account of said conduct of defendant as above set forth the defendant is estopped from claiming any right under the statute of limitation clause in said contract of affreightment.” The judgment dismissing the petition says: “ On the call of the case the defendant submitted orally a general demurrer to the petition as amended, on the ground that the waivers charged are invalid, contrary to law, and the petition as amended shows no cause of action, The said demurrer is hereby sustained/’ etc.</p>

Action on contract; from Cobb superior court- — -Judge Blair. November 28, 1920. The action was by the Marietta Publishing Company against the Times Publishing Company. The facts of the case are stated in the opinion of this court. The judgment of the court below was as follows: “The issue involved is as to the remedy sought.

<p>Attachment; from Stephens superior court — Judge J. B. Jones. October 23, 1920.</p>

<p>Certiorari; from Gilmer superior court — Judge Humphries presiding. October 13, 1920.</p>

Complaint; from city court of Leesburg — Judge Martin. October 18, 1930. 1. Tbe motion to dismiss the writ of error' was upon the grounds: (1) There is no sufficient assignment of error in the bill of exceptions to authorize this court to entertain jurisdiction of the writ of error. (3) There is no valid and legal assignment of error. (3) There is no proper exception to any final judgment. (4) There is no proper assignment of error upon any final judgment.

Action on contract; from city court of Savannah — Judge Freeman. November 6, 1920. Application for certiorari was denied by the Supreme Court. This is a suit to recover damages for the breach of a contract. The ease made by the plaintiffs petition, substantially stated, is as follows: In May, 1912, the plaintiff was employed by the defendant as a salesman, at a salary of $100 per month and his expenses in traveling through various States as directed by the defendant.

Complaint; from city court of Savannah — Judge Freeman. November 6, 1920. Application for certiorari was denied by the Supreme Court. Mrs. Cora B. Harrell, as maker, and'her husband, as indorser, were sued upon a promissory note payable to the plaintiff, R. H. Knox. No defense was made by the husband.

<p>Pendency of a suit' against the Peachtree Soda Company, alleged therein to be a corporation, was not ground for abatement of a suit subsequently brought against the Confectioneries Corporation, based upon the same cause of action, and alleging that the defendant therein “ is owner and operates ” the Peachtree Soda Company.</p>

<p>Action for damages; from city court of LaGrange — Judge Duke Davis. December 14, 1930.</p>

<p>Foreclosure of mortgage; from city court of Bainbridge — Judge'Spooner. January 10, 1921.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. December 8, 1920.</p>

<p>Complaint; from city court of Atlanta — Judge Reid. January 24, 1921.</p>

<p>Complaint; from Twiggs superior court — Judge Kent. February 28, 1921. .</p> <p>The Southern Cotton Oil Company sued W. Y. Brownlee and W. C. Mason, as partners, on an open account for advances made during the cottonseed season of 1915. The defendants filed a plea of no partnership. The correctness of the account was admitted and the case went to the jury on the sole issue of partnership or no partnership, and the verdict was in favor of the defendants. The plaintiff’s motion for a new trial was overruled, and it excepted. The evidence relating to the shipment of cottonseed consisted of letters between the parties and oral testimony on the issue relating to the plea of no partnership. The first of these letters was from the Southern Cotton Oil Company to the defendant W. C. Mason and was dated August 9, 1915. It said:" Seed season will soon be on us, and we hope that we are to be favored again with your shipments from Ettrick. Please advise if we shall send you contract. . . We shall be glad to write the same contract for the coming season.” In reply W. O. Mason wrote to the Southern Cotton Oil Company, on August 10, as follows: " Mr. W. Y. Brownlee is interested with me at Adams Park this year, but we will use the same contract as last year.” On August 11 the Southern Cotton Oil Company replied, acknowledging the receipt of that letter and enclosing the contract, the writer saying: " While I note your statement that Mr. W. Y. Brownlee is interested with you, I presume that what you do will be satisfactory with him, and would be glad if you would handle accordingly. If you wish contract made otherwise, kindly advise us just how, that is, in what name, and will give matters proper course. We shall, of course, keep in touch with Mr. Brownlee and render him all the assistance possible.” The contract referred to in this letter was returned to the Cotton Oil Company by W. C. Mason, signed by him alone, with a letter which made no statement as to the writer’s relationship with W. Y. Brownlee. On August 36 thereafter W. C. Mason wrote to the Southern Cotton Oil Company, directing it to send to " W. Y. Brownlee, Adams Park, 6a., $50.00 to start off the seed business.” Subsequently the corespondence was continued between Mason and the Cotton Oil Company and W. Y. Brownlee and the Cotton Oil Company. It does not appear that reference to a partnership between Brownlee and Mason was made in any of the letters. The trial judge instructed the jury very briefly, and on the subject of partnership confined the charge to section 3158 of the Civil Code of 1910, as follows: “ A joint interest in the partnership property, or a joint interest in the profits and losses of the business, constitutes a partnership as to third persons.” There was no request to charge on the subject. The motion for a new trial contains two special assignments of error: (1) that the undisputed evidence demanded a verdict for the plaintiff, and (2) that the charge on the subject of partnership was not applicable to the evidence, and confused and misled the jury, the court nowhere instructing the jury that a partnership could arise as to third persons from admissions on the part of one or both parties, and that when such admissions were acted upon by third persons, to their injury, the partner making them would be estopped from denying such partnership as against such party; that the foregoing principle of law was applicable and controlling under the evidence in the case, and the failure of the court to charge, thereon, even* without request, was error prejudicial to the plaintiff and required the grant of a new trial.</p>

Indictment for murder — conviction of manslaughter; from Gilmer superior court — Judge Humphries presiding. January 22, 1921. In the report of this case in 24 Ga. App. there is an error in the sixth line from the bottom of page 311, where the name “ Hudson ” appears instead of that of the person killed.

<p>Accusation of violation of prohibition law; revocation of parole under sentence; from city court of Bichmond county — Judge Black. September 27, 1920.</p>

<p>Complaint; from Cobb superior court — Judge Blair. October 4, 1920.</p> <p>Application for certiorari was denied by tbe Supreme Court.</p> <p>Tbe grounds of tbe motion for a new trial referred to in paragraphs 1, 2, and 3 of the decision respectively were:</p> <p>“ 1. Plaintiff bad already introduced in evidence tbe agreement of sale between L. B. Carnes, as agent for B. E. Hamby, to „C. L. Durham, and approved by R. E. Hamby, selling that farm, dated July 22, 1919. The suit was for commissions growing out of the sale made and evidenced by this particular contract. One of the contentions of the defendant was that plaintiff had acquiesced in Durham’s backing out from the contract, and had thereby relieved Hamby from any claim of commissions on that particular trade. On cross-examination of the plaintiff, counsel for defendant asked the following question: Q. *After you received this letter from Durham [the letter set out in the brief of evidence from C. L. Durham to L. B. Carnes, dated October 26, 1919], who else did you take out to Hamby’s to try to sell this property ?’ A. ‘ I did take Mr. Neel out there, but — ’ Before the witness finished his answer, counsel for plaintiff made objection to the question, and the court sustained the .objection, and the question (and the answer, of course) went out. Although the court permitted the defendant later on to testify that plaintiff brought Mr. Neel out there and tried to sell him the same lands after the contract of sale had been signed up with Durham, after Durham wrote Carnes the letter that the trade was off, still defendant insists that he should have been allowed to prove the same thing by the plaintiff on cross-examination if he could, and that thé refusal of the court to allow the witness to answer this question was error, and that the sustaining of the objection above set out was error. Defendant excepted to said ruling at the time; he excepts now, and assigns the same as error.”</p> <p>“ 2. There was no 'evidence in the record, when plaintiff was being cross-examined, that Durham had Clay employed as his lawyer. On further cross-examination of plaintiff, defendant’s counsel asked plaintiff the following question: Q. ‘ Mr. Clay told Mr. Durham— your lawyer — if he didn’t go up there and offer that money, that he owed you $450 ?’ Plaintiff’s counsel objected. The court made inquiry as to whether or not this remark by Mr. Olay to Mr. Durham was before or after the tender to Hamby. The reply was that it was before. The court then ruled that the objection was sustained, in the following language: c You can’t go into the advice of a lawyer to his client.’ In further ruling on the objection the court ruled: cThe question is what was done. The question is, Was this money taken out there and tendered; was it or not; and, if it was, did the defendant make a deed ?’ To this ruling the defendant excepted, he excepts, now,' and assigns the same as error. He insists that there was nothing in the record and nothing in the evidence that showed Mr. Clay to be the attorney of C. L. Durham at the time of the conversation or remark asked about, and that the assumption of the court that such was the case was unwarranted by the record or the evidence, or by both taken together, nor was the objection put by counsel upon ' that ground. The truth is, it was not put upon any ground. Upon the second section of the ruling, that the sole question was whether ■or not the tender was made, and whether or not the deed was signed by the defendant, defendant insists that this was not the only question involved in the issues being tried. He insists that the question of the bona fides of the tender was being made, and that the plaintiff, knowing that Hamby was acting upon the letter of October 26, 1919, and the conversation between himself and plaintiff had placed himself where he could not make a deed, coerced the plaintiff to make a tender the plaintiff knew he, the defendant, could not accept, and in this way build a foundation for a recovery in his contemplated suit.”</p> <p>“3. After the evidence of plaintiff was all in and defendant was on the stand being examined in chief, he testified that after he got the letter of October 28, 1919, from C. L. Durham he told the plaintiff that Durham had backed out, and ‘ Your contract for 90 days has expired, Mr. Durham has refused to take the place, and I am going to pull it down; your contract for 90 days has expired and [ ?] have no more right than anybody else has;’ he says, f You can let the old man down easy if you want to, but he has got to pay me.’ The defendant’s counsel asked this question: cAfter that did you sell any part of the land yourself?’ Objection was made by plaintiff’s counsel that the question was irrelevant, incompetent, and immaterial. The court sustained the objection and the witness was not allowed to answer. To this ruling the defendant excepted; he now excepts and assigns the same as error and contrary to law. . . Defendant insists that this evidence was clearly admissible to show a release of the defendant, and that he should have been allowed to show that acting upon this release he placed himself, by selling a part of the same land, in such condition that he could not make a deed when plaintiff made the tender. Defendant insists that if plaintiff’s acts and words had been conducive to defendant’s selling part of the land to some one else, so that he could not accept the tender even if he so desired, plaintiff would be bound by his acts and words allowing defendant to let Durham back out, and that when plaintiff acquiesced in allowing Durham, to call the trade off, he by such acts and words relinquished any claim to commissions from defendant.” To this ground the judge added the following note: “ The defendant made no contention in his pleadings that he had sold any part of his farm or so changed its status that he could not convey to Durham. The amendment allowed July 20th was not presented until after the evidence was closed, and the evidence was not offered until after the amendment was allowed.” This amendment was to the effect that after the plaintiff and the defendant received letters from Durham refusing to carry out the contract of purchase of the defendant’s lands, the plaintiff told the defendant that he (the defendant) could let Durham out of the trade, but that he (the plaintiff) intended to make Durham pay him (the plaintiff); and that, acting upon this statement, the defendant sold a part of the property before the alleged tender; that both he and the plaintiff agreed that the sale was off, and he did not know that the plaintiff claimed the right to have the sale carried out, until after he (the defendant) had' sold a part of the property.</p>

<p>Wliere a draft by one person on another is indorsed by a third person, whose indorsement is neither necessary nor proper for transmission of title, in the negotiation of the draft, but is for the sole purpose of guaranteeing payment, the person so indorsing becomes a surety thereon.</p> <p>(a) The liability of a surety can not be extended beyond the actual terms of his engagement, and will be extinguished by any act or omission which alters the terms of the contract, unless it be with his consent.</p>

<p>1. A correct statement of law, embraced in a charge to the jury, is not erroneous because the court failed in the same connection to give to the jury other appropriate instructions.</p> <p>2. There being some evidence to support the verdict, and the verdict having been approved by the trial judge, this court is powerless to interfere with it.</p>

<p>Action for damages; from Newton superior court — Judge Hutcheson. December 3, 1920.</p>