Volume 27 — Georgia Appellate Reports

<p>Indictment for sale of alcoholic liquors; from Newton superior court — Judge Hutcheson. December 31, 1920.</p>

<p>Indictment for murder — conviction of manslaughter; from Appling superior court — Judge E. D. Graham presiding. December 18, 1930.</p>

<p>Complaint; from city court of Tifton — Judge Price. January 18, 1921.</p>

<p>Indictment for unlawful inspection of ballots; from Paulding superior court — Judge Irwin. November 10, 1920.</p> <p>Application for certiorari was denied, by the Supreme Court.</p> <p>The indictment was against W. L. Denton and A. D. Bartlett, and charged that on September 14, 1918, they “ did . . unlawfully and . . intentionally and knowingly open and examine the ballot-box and ballots therein contained of the Dallas voting precinct, also known as the 1080th district,. G. M., precinct of said [Paulding] county, being the ballots and ballot-box cast at the election in said county and precinct and district on the 11th day of September, 1918, known and styled as the State democratic white primary for the nomination of candidates for State-house officers and Governor, Judges of the Supreme Court, Judge Superior [Court] Tallapoosa Circuit, and other State-house officers then to be nominated, and being a part of the documents, papers, and a part of the returns of the managers of said election, made and filed with the Clerk of the Superior Court of said county, the said W. L. Denton being Clerk of the Superior Court of said County and having said ballots and ballot-box on file with him and [in] his office as said clerk, and the said W. L. Denton and A. L. Bartlett then and there did as aforesaid examine the ballots cast at said election precinct, . . and inspect the said ballots, contrary to the laws,” etc. Denton pleaded guilty. There was a demurrer to the indictment, on the grounds: (1) that the facts alleged therein do not constitute an offense against the laws of this State; (2) that it is not alleged that the ballot-box and the ballots were sealed; (3) that the allegations show that the defendant Bartlett was neither a clerk of the superior court nor an election manager; and (4) that the statute does not make it penal for any other person than a clerk of the superior court or an election manager to break the seal and examine the ballot box and the ballots of a primary election. The court overruled the demurrer.</p> <p>On the trial of the defendant Bartlett his codefendant Denton testified: “ I was clerk of the superior court here last year. I remember when an election was held in the 1080th district, G. M., Paulding county, known as the Dallas precinct, on September 11, 1918, — State democratic white primary held for the nomination of State-house officers and judges of the superior courts. . . As such the returns were handed to me as clerk of the superior court, filed with me by the managers. The ballot-box was filed with me! When the papers were filed with' me they were in the ballot-box; that is, the ballots were just put in the box, and voters’ list, tally sheet, and so on was in an envelope. They were fastened with lock and key, — just an ordinary little padlock, I reckon you would call it. Those ballots were afterwards opened, in a day or two after the primary. . . They were opened down in my office. After they were opened I carried them to Judge Bartlett’s house. At that place the ballots were examined. . . As well as I remember (and I guess I remember it about correct), I met Judge Bartlett out about the restaurant here in town, late in the evening. . . As I went in the restaurant judge came out and I met him there, and he touched me on the shoulder, or called me to one side, and asked me — well, just said that he would like to see the returns of this box, or would like to see this box, and I just says, ‘ I don’t know hardly how to go about it.’ He said, ‘ I would like to see for a personal reason.’ I says, f I don’t know hardly how to go about it.’ He says, ‘ That is easy.’ He says,f That is all over and can’t hurt anybody. Where will you be to-night ? ’ When I told him I didn’t hardly know how to go about it, he says, ‘ That is easy,’ and my recollection is I asked him didn’t he reckon we had better wait — I had better wait until thirty days expired, and he said couldn’t hurt anybody, couldn’t any harm come of it, or words to that effect. He says, ‘ Where will you be to-night?’ I told him that my wife had said something about going to church, and [he said] You bring all the folks and come down and sit awhile;’ and I did so. I come by and got the ballots and took them down, took them out of the box and put them in a shoe-box, and put the box under my arm and went down there and stayed an hour, T reckon, may be an hour and a half. We looked at the ballots, all the ones that voted against him in this district. When I went in . . I laid the box down on the lounge. . . Judge got up and went and picked the box up and come back and sat down by the fire and opened the box, and looked through it, and made a type-written list of all the ones that voted against him. I called the names off for him to write. At the time he never said anything that I remember. He did not ask me what I had in the box when I went in. He told me — said to come by and sit awhile. I carried the ballot-box to his house to look at it, for me and him to look at it.” On cross-examination the witness testified that Judge Bartlett did not say to get the ballots and bring them down, but said to come by the office and come down and sit awhile; the witness did not remember whether Judge Bartlett asked if the ballots were sealed; they were not sealed; they were under lock and key, the box was in a vault in the court-house, where all the papers of the clerk were kept, and he (the witness) had the key, and, on his way from his home to Judge Bartlett’s house, went in the vault. unlocked the box and took the ballots out, put them in a shoe-box, took the voters’ list that had been opened by the consolidators, put the list in the shoe-box, and took the box to Judge Bartlett’s house.</p> <p>The defendant, in' his statement at the trial, said: “ I did not open the ballot-box or examine any ballot-box. . . I met Mr. Denton with a number of other people in the restaurant or in Mr. Cooper’s store. . . Mr. Denton approached me and his remark was, as I recall it now, that he was in possession of some facts that I would like to know. Of course, my curiosity was aroused, and I asked him what it was, and then he informed me of the information he had there — as he said, of the returns of the election. I then remarked to him, as I remember it (and he may have misunderstood me, I possibly could have misunderstood him, some of them say occasionally that I am hard of hearing. . . ) told him he might get into some trouble about the matter — something said about some trouble about the matter. He said he reckoned not, that they were lying there in the box, open. I asked him were they not closed up, sealed up. He said, ‘ No,’ they were lying there and the box open. Well, as I remember it, there was nothing then to hinder anybody from looking over and seeing what was in the matter, but as to my counselling or commanding him or requesting him to do anything with reference to it, I did not do it. It is true, living here, that is not the first time with him, asking him to come down and sit awhile. That night I told him to come down and sit awhile. He made the remark that he had to go by his office. I says to him, Just come by, come down and sit awhile.’ That ended that upon my part. I thought the matter was ended, left right it was. He came in and had the ballots there. I saw the ballots — I wouldn’t sajr, for I don’t know; I suppose they were. I don’t think he said — I don’t remember, but-1 know I didn’t have anything to do with them. I did not command him or counsel him to do that or anything of the kind, but he gave me the information with reference to one district in the way I have told you. Now that is the whole of the whole matter, so far as I remember it now, and I am quite sure that I remember it about correct. Now, as I stated, he may have misundestood my language. 'We were standing there talking, other people were close around; . . don’t think there was anybody close enough to hear what we were saying; other people were talking. He could have misunderstood me, I could haye misunderstood him^ but I know that I did not in any way command, encourage, counsel, or have anything upon the face of the earth to do with going into that ballot or sorting the ballots.”</p> <p>W. L. Denton was recalled and testified: "I do not think I told Judge Bartlett, when he asked me about coming down, that the ballots were there in the office just lying there in the box, not fastened at all. I told him they were out there in the box, but I would have no occasion to say they were not fastened, when I knew it was locked and I had the key to it, and had the bey in my pocket. I think I told him they were locked and I had the key. I wouldn’t be positive that I told him they were locked, or that I didn’t. I told him they were out there in the box, and in my opinion I told him it was locked and I had the key in my pocket. I wouldn’t be positive whether I told Judge Bartlett that they were locked or not.”</p> <p>A statement made by the defendant on a former trial was introduced by the State, in which he .said that he met Mr. Denton in the restaurant after the election and something was said with reference to the result of the election, and Mr. Denton said possibly he could find the result of the election, and he (the defendant) asked Mr. Denton if the ballots were not closed up or sealed up, and “ he said it was not, that it was lying there in the box, open. . . I think I told him that if they were lying there open and not closed up, that I didn’t see why it would be a violation of the law for anybody to do it. I may have said that. I don’t remember whether I did that or not, but I know that is as far as I would have gone if I had said that, but I don’t think I did. I know there was no intention on my part to tell him to open a closed ballot-box or anything of the kind. ' . . There was no thought on my part, I repeat, to tell him, or myself, to violate the law.” “ I thought the matter was at an end, had no thought of anything else, was at home' busy. I may have asked him to come down, but I say I had no thought of telling him to do an act that was irregular or a violation of the law.”</p> <p>The court charged the jury in part as follows: “ It is a violation of the law to open and examine the ballots and. the ballot-box. Every man has a right to have his ballot kept secret, knd if you are satisfied, from the evidence in this case, that the defendant counseled, aided, and abetted in any way in opening or examining the ballots in this ease, he would be guilty, if he did that, just as though he had opened the box himself. . . It would not malee any difference whether it was sealed or locked; if they were put in the box, nobody has a right to go into that box, whether it is sealed or not. The law requires the managers to seal the box; that is done for the purpose of keeping people from going into it; but the fact that they failed to do their duty and seal the box would not relieve the person from responsibility who goes into that box, whether it is locked or sealed, or whether the box is — if the lid is put on it, then he would be guilty of a violation of the law —■ and examined that box, then he would be guilty of a violation of the law. . . If the ballot box was closed with a lid on it, [the defendant] would have no right to examine the ballots in the box, even though they were unsealed; that would be a violation of the law.” In various grounds of the motion for a new trial the defendant complained of instructions quoted above, and contended that under the terms of the statute the gravamen of the crime is breach of trust on the part of the clerk of the court in whose custody the ballots are left, and none other than those directly named in the statute could violate it, and it did not apply to this defendant; that the statute does not apply to one who merely examines or looks at the ballots after another person has gotten them; that. examination of the ballots is-not a violation of the law where the box was not broken into or unsealed through the advice and procurement of the defendant ; and that there was no evidence that the defendant, directly or indirectly, counseled, or procured, or aided or abetted in the opening of the ballot-box and the taking of the ballots therefrom. It was alleged that the court erred in refusing to charge as follows: “Before you would be authorized to find the defendant guilty, it must appear that the ballot-box in question was closed, sealed, and filed in the office of the clerk of the superior court of this county, and that the defendant counseled, commanded, or procured W. L. Denton to open the seal of the box as charged in the indictment.” Befusal to give other requested instructions is also complained of.</p>

<p>Complaint; from city court of Zebulon — Judge Dupree. December 15, 1920.</p>

<p>A commission on the sale of real estate listed with different brokers and sold by one of them was not recoverable by another, under the facts alleged in the petition.</p> <p>An allegation that “ plaintiff was the procuring canse of the sale ” must be treated as a mere conclusion of the pleader, not sustained by the facts stated in the petition.</p> <p>The petition as amended did not set out a cause of action and the court did not err in dismissing it on general demurrer.</p>

<p>Processioning; from Taylor superior court — Judge Howard. December 4, 1930.</p>

<p>Action for damages; from city court of Hall county — Judge Wheeler. December 31, 1920.</p> <p>1. The ground referred to in the first paragraph of the decision is as follows: “Because the court erred in permitting the plaintiff, on direct examination, to testify to the jury on the trial of said case, over objection, of the defendant, made at the time, as follows : Q. How many shade trees are there on the Prior street side, .yight on the line ? A. There are quite a number right on the line. Q. How many are so close they will have to be taken down, if this sidewalk is put in there 6 or 8 feet in width? A. Ten or more. Defendant’s counsel objected to this testimony at the time it was offered, on the ground that the number of trees which would have to be taken down in the event a sidewalk was placed along the street could not be the subject-matter of a recovery in this case,— was too remote and speculative. The court overruled these objections, and permitted the testimony; the defendant then excepted and now excepts, and assigns said ruling and judgment as error.”</p> <p>3. The plaintiffs introduced in evidence a copy of a notice of the claim for damages on which the suit was based. Testimony in regard to this notice is complained of in the 6th ground of the motion for a new trial, which is as follows: “ Because the court erred in permitting Hon. Jos. G. Collins, attorney for the plaintiffs, to testify in plaintiffs’ behalf to the jury on the trial of said ease, over objection of defendant’s counsel at the time, as follows: ‘I merely wish to state that I made out the claim for damages. 1 think I made three copies at the same time. They were made with paper‘that manifolds, and I served on the city a copy of notice of suit for damages just like this attached to the petition, at some time more than 30 days before the suit was filed. The particular date on which it was served was the 23d day of June, 1917. This suit was filed in August, 1917. We threshed that question out that he makes. It has been decided, when notice is served on another party, you don’t have to give any notice to produce.’ The court: ‘What I want to know is that what you are testifying about is a carbon copy of what you have there ? ’ A. ‘ It is a duplicate, made at the same time on typewriter, made with the same stroke, really both were original. They call them copies sometimes, but they are all made at the same time; not really any difference in anything about it. I signed them both.’ Counsel for defendant objected to this testimony at the time the same was offered, on the ground that the original notice served upon the city would be the highest and best evidence; on the further ground that this testimony with reference to this notice was inadmissible because no notice to produce the original had ever been served upon the defendant; .further because it appeared that the notice alleged to have been served and the one attached to the original petition about which witness was testifying was signed with handwriting of witness and therefore could not be duplicate of originals. The court overruled these objections and allowed this testimony to remain in before the jury. To this ruling defendant then excepted and now excepts, and assigns error thereon.”</p> <p>4. The ground referred to in paragraph 4 of the decision is as follows: “Because the court erred upon the trial of said case in charging the jury as follows: See whether or not there has been any part of the property that originally belonged to these plaintiffs cut off and appropriated by the defendant for a public street. If there has been any part of it cut off, then ascertain what the value of that property would be, from á fair interpretation of the evidence in the case. If there has been any part of the property of the plaintiffs cut off and appropriated to the use of the defendant as to that amount, whatever you find that amount to be worth, the plaintiff is at least entitled to recover that much. If there has been none taken, then, of course, you would not allow anything to the plaintiffs for the value of their property on that part of the contention made by the plaintiffs. Then you would consider whether or not the right of ingress and egress to and from the property of plaintiffs has 'been impaired or destroyed, or whether the property has been injured and damaged in any other way contended for by the plaintiffs in their petition. If it is, ascertain how' much it has been damaged in that 'regard, from the evidence. Then you would consider whether or not the market value of the property has been enhanced or improved by the grading of the street. If the market value of the property has been enhanced or improved by the grading of the street, and that enhancement in value is equal to or greater than any amount that the plaintiff may have been damaged other than by taking the property, you could let one offset the other, and as to that item, if the value of the enhancement was equal to or greater than the damage resulting from the work done, you would find in your verdict in favor of the defendant. Said charge was error in that it instructed the jury to find treble damages for the same tortious act, viz., taking property sued for, destroying ingress and egress -to the property sued for, and for destruction of the market value, and in this particular is contrary to law. Said charge is further erroneous, as defendant contends, because there is no evidence upon which to base it; the evidence at its furthest and as contended for and testified by plaintiff showing that the property taken, if any, was property of the sidewalks, which was property of the city and for which no actual damage could be sustained, consequential damages only being recoverable. For that reason said charge, in so far as it refers to the taking of a strip of land by the city, is absolutely without evidence to support it. Movant excepts to said charge, and assigns error thereon as being contrary to law and the evidence in said case.”</p> <p>5. Paragraph 5 of the decision relates to the following ground: “Because the court erred upon the trial of said case in charging the jury as follows: ‘ I charge you that if there was a strip of land either on Spring or Prior-street that had been originally dedicated or used by the people, so as to make it. subject to a private right of way, and it had been in use for such a length of time that the users of it would be entitled to a right of way over it, so as to make a dedication of it, in a manner to deprive plaintiffs from reasserting their private title to exclude the users of it from that way, and the city did take a portion of that, then the plaintiffs would not be entitled to recover the market value of it; but if you find that to be the fact they would be entitled to recover nominal damages at least. The law does not define what nominal damages are in absolute dollars and cents, but it simply says that nominal damages are some small sum awarded by a jury, where a right has been invaded, for a sufficient amount to carry the cost against the parties. I charge you that a private way may be acquired across the property of another by being used and kept open and in repair by the users for a period of seven years, provided that private way does not exceed 15 feet in width; or it might be acquired in another way. The only way in this case which wotild be applicable under the law here would be a prescriptive right to cross it. Now, it is for you to say whether there were any users of a private way for a sidewalk on either Spring street or Prior street in this case.’ The vice in this excerpt of the charge is as follows: Plaintiff contended the city had taken a part of a strip of land off Prior street, whch had been used as a sidewalk or passway, not (in his words) a ‘legal’ sidewalk, but a pathway. The city contended that this strip, which had been dedicated in this manner by the owners and by permitting its use, the city by taking it would not injure plaintiff. The -first two sentences of the above excerpt were requested by the city and were charged as shown above; but the qualification as set out in the, third sentence had the effect of destroying its value; this sentence and part of the charge was erroneous, harmful to this defendant, contrary to law, and without evidence to support it.”</p>

<p>Actions for damages; from city court of Atlanta — Judge Reid. January 3, 1921.</p>

<p>Under the pleadings and the evidence, a verdict was demanded for the defendant, and the court did not err in so directing.</p>

<p>The finding of the jury upon the issue as to excessiveness of the amount set apart as a year’s support to the widow was authorized by the evidence, and the overruling of the motion for a new trial was not error for any reason assigned.</p>

<p>Eviction; from Carroll superior court — - Judge Terrell. December 27, 1921.</p> <p>J. J. Thomasson, who sought to evict Horton as a tenant holding over and beyond the term of his lease, had purchased the premises from the lessor and was transferee of the lease, which was for a term of fifty-two months, commencing May 1, 1918. The lease was transferred to Thomasson on July 7, 1919. It provides for the payment of a stated sum as rent on the last day of each month, and that if the lessee fails to pay this sum promptly when due, the lessor “ has the right and option to declare this lease and contract void if not received in ten days,' cancel the same, and take possession of the premises.” The plaintiff testified that the leased premises, a store, was on his route between his home and his place of business, and in the months of August and September, following the July in which the lease was transferred to him, the defendant, before the 10th day of the month, stopped him when he was passing the store and asked him to send for the rent, he sent his son for it, and it was paid; that in October his son was asked by the defendant on the 10th to call for the rent and it was paid; that the defendant gave no notice in regard to the rent due on or before the 10th of November, and consequently he did not send for it, and on the 11th he sent to the defendant a notice canceling the contract, and in response the rent was brought to him on .the 12th.</p> <p>The defendant testified that the plaintiff, after purchasing the rented premises, proposed to take the lease off his hands, and told him that on the expiration of the lease he would have to move; also: “ I told him it was the custom of Dr. Hamrick [the lessor] to send over for the rent, and I would be glad if he would do the same thing — more convenient for me. He said he would do that. . . I told him the rent would be ready any time he would come around for it. . . From that time on . . the checks were always sent for. . . I never sent him a check; they were always ready for him within the time, up to this time. When he promised to send by and get the rent I never for a moment thought that he wouldn’t do it. . . I got this notice when he claimed that I slipped by for the rent. I had been ready and this check was ready to pay him for the month’s rent. . . I was expecting him to come by for it. . . I think may be once or twice I cálled attention to it, so that he could get the check, .. . but that time he didn’t send and I just didn’t see him to remind him at that time, but the check was ready for him if he had come for it. . . There was no writing covering this agreement [to “ come by for the rent”],- just a plain man to man word conversation.”</p> <p>In the motion for a new trial it was alleged that the court erred in admitting the defendant’s testimony as to the plaintiff’s agreement to send for the rent, the defendant objecting to this testimony on the grounds that it varied the terms of the written contract, was without consideration, did not amount to a novation, and was irrelevant.</p> <p>The court charged the jury: “ The defendant insists that subsequent to the execution of this lease and its transfer to J. J. Thomasson he had an agreement with the transferee, Mr. Thomas-son, . . whereby Mr. Thomasson would call at his store, the defendant’s place of business, and there collect or receive the rent when due. I charge you that if this be true, . . . if it be true that Mr. Thomasson did agree to call at Mr. Horton’s place of business and receive and collect the rent past due or when due, his failure to call and demand such rent when agreed to, if he did agree to it, would not inure to the damage or detriment of the defendant; and if that be true the plaintiff would not now be heard to plead the default of the defendant. . . If he did not have such an agreement, it would not be incumbent upon Mr. Thomasson to call at the place of business of Mr. Horton; it would be incumbent upon Mr. Horton to see that the rent was promptly paid to the plaintiff when due.” It is contended that the court erred in charging as to the alleged agreement as above.</p>

<p>The alleged newly discovered evidence as to conditional threats by the person killed which were not communicated to the defendant before the homicide did not require a new trial.</p> <p>New evidence that prior to the trial a certain witness for the State said that at the time of the homieide the deceased had a pistol did not require another trial, the only effect that such testimony could have in favor of the defendant being to impeach testimony for the State.</p>

<p>Trover; from Bibb superior court — Judge Malcolm D. Jones. January 12, 1921.</p> <p>Application for certiorari was denied by the Supreme Court.</p> <p>L. B. Moate brought trover against H. G. Griswold for one Alamo electric-light plant, and the case came to this court upon exceptions to the grant of a nonsuit. The evidence of the plaintiff (the only witness introduced) is substantially as follows: He had bought the exclusive right from the W. J. Dabney Implement Company, of Atlanta, Georgia, distributors of the' Alamo electric-light plant, to sell these plants in Hancock county, Georgia. L. M. Rhodes, agent for the Griswold Supply Company, of Macon, Georgia, came to Hancock county for the purpose of selling one of these plants, and through the joint efforts of the' plaintiff and Ehodes one Hussey, a resident of Hancock county, was persuaded to purchase a plant. At the time of this sale the plaintiff had in his store one of these plants. Shortly after taking Hussey’s order for a plant it became necessary for the plaintiff to go to Texas, and on his way he stopped over in Macon, where he and Ehodes had a talk and Ehodes said, if Hussey “gets in a hurry for a plant, we had better get your plant,” and he replied that if Ehodes “ would go over there and get it and pay for it, he could go over there and' install it.” While the plaintiff was in Texas Ehodes went to tiie plaintiff’s place of business, obtained the plant, and delivered it to Hussey, but failed to pay for it. TJpon his return from Texas he found that this was the status of affairs, and he at once went to see Griswold and demanded his commissions on the sale. Griswold at first refused to pay him a commission, but, after considerable negotiations, he and Griswold .agreed upon a settlement, whereby Griswold agreed to pay him $54, one half of the commissions for the sale of the plant, and to ship to him that afternoon another plant in place of the one taken by Ehodes and delivered to Hussey. Griswold gave him a check, signed by the Griswold Supply Company, for the $54, but failed and refused, notwithstanding several demands, to ship another plant to him in lieu of the one taken by Ehodes. The plaintiff cashed the check and got the money, but credited Griswold with the amount thereof. It was in February, 1920, that he agreed to accept the cheek and another plant in settlement of his claim against Griswold. After-wards the Griswold Supply Company went into bankruptcy, and he came to Macon and investigated that. He had returned from Texas about the 20th of November, 1919, when he learned that his plant had been taken by Ehodes. He never received any notice as a creditor of the Griswold Supply Company in bankruptejr, and never filed any claim in the bankruptcy proceedings. He filed his petition in trover after the Griswold Supply Company went into bankruptcy.</p>

<p>Appeal; from Tattnall superior court — Judge Sheppard. January 11, 1921.</p>

Indictment for possessing liquor; from Haralson superior court — Judge Irwin. December 28, 1920. Jim Leatherwood was convicted on an indictment which charged him with possessing intoxicating liquor. From the evidence it appeared that in grass and weeds and in a smoke-house of the defendant’s father, Parker Leatherwood, in a few steps from the dwelling .of the 'father, with whom the defendant lived, several jugs and jars of whisky were found, covered up.

<p>Money rule; from Ben Hill superior court — Judge Gower. February 1, 1931.</p>

<p>Indictment for receiving stolen goods; from Stewart superior court — Judge Littlejohn. January 27, 1921.</p> <p>In special ground 4 of the motion for a new trial an instruction to the jury substantially in the language of section 1013 of the Penal Code (1910) is complained of on the ground that this case rests "entirely, or almost entirely, upon circumstantial evidence,” and that "a strict charge on circumstantial evidence should have been given.” In a note to this ground the judge stated that "the-charge will show that the court charged the law on circumstantial evidence.” To an instruction that before the jury could convict, they must be satisfied of the defendant’s guilt beyond a reasonable doubt, the court added: “ That does not mean all doubt; reasonable doubt does not mean no doubt at all.” This is complained of in ground 5; to which is appended a note of the judge, referring to the charge in full in the record, and stating that the language last quoted is “ only a portion of a sentence.”</p>

<p>Indictment fox murder — conviction of manslaughter; from Liberty superior court — -Judge Sheppard. January 11, 1921.</p>

<p>Indictment for misdemeanor; from Douglas superior court — Judge Irwin. February 10, 1921.</p>

<p>1. Evidence that the defendant’s mother, who lived in the house with the person from whom the property was alleged to have been stolen, had an interest in the land upon which the house was located was properly excluded.</p> <p>2. Proof that certain property alleged to have been stolen was taken from the lawful possession of the person named in the indictment as the owner thereof is sufficient to support the allegation of ownership, although the legal title be in another; and the court did not err in so charging,</p> <p>3. The section of the code which prohibits a trial judge from expressing or intimating his opinion as to what has or has not been proved “refers to the expression or intimation of an opinion touching some fact at issue involved in the case, and not to something that is conceded by both parties.”</p> <p>4. “Where the whole charge is in the record, and the same, taken all together, is fair and full, and lays down substantially the law of the ease as applicable to the facts in evidence, mere inaccuracy in some of the language will be treated as immaterial, tbe correction being virtually made by the general import and spirit of the instructions.”</p> <p>5. The evidence demanded the conviction of the accused.</p>

<p>Accusation of intoxication on highway; from city court of Carrollton — Judge Hood. February 4, 1931.</p>

<p>Accusation of possessing intoxicating liquor; from city court of Carrollton — Judge Hood. February 4, 1921.</p>

<p>Indictment for unlawfully carrying pistol; from city court of Macon — Judge Gunn. February 4, 1921.</p>

<p>Indictment for misdemeanor; from city court of Macon — Judge Gunn. February 4, 1921.</p>

<p>Indictment for assault with intent to murder; from Troup superior court — Judge Terrell. December 31, 1920.</p>

<p>Accusation of possessing intoxicating liquor; from city court of Carrollton — Juclgé Hood. February 4, 1921.</p>

<p>1. Where a petition for certiorari to review a judgment of conviction in a municipal police court does not exhibit a copy of the bond required by the Civil Code, § 5191 (a), and does not state that the bond given was “ conditioned for the personal appearance of the defendant to abide the final order, judgment or sentence of said court or of the superior court in said case,” but recites merely that the petitioner “has given certiorari bond that has been properly approved, ” the latter recital will be held a conclusion inadequate to meet the mandatory requirement of the statute.</p> <p>2. A correct judgment overruling a certiorari should be affirmed, although the reason for this ruling does not appear.</p>

<p>Accusation of violation of liquor law; from city court of Polk county — Judge Tison. February 18, 1931.</p>

<p>1. The court did not err in admitting evidence as to the conduct of members of the family of the accused after the officers arrived at his home, as complained of in grounds 1, 2, 3, 5, and 6 of the motion for a new trial.</p> <p>(a) Where evidence is offered en bloc, some of which is not open to the objections made to it, the admission of such evidence is not ground for a new trial.</p> <p>2. Evidence not of such probative value that its admission could be hurtful to the plaintiff in error is not cause for a new trial.</p> <p>3. Points made in the motion for a new trial but not argued in the brief of plaintiff in error will be treated as abandoned.</p> <p>4. The evidence authorized the verdict.</p>

<p>Accusation of possessing intoxicating liquor; from city court of Houston county — Judge Riley. February 31, 1931.</p>

<p>Accusation of violating automobile law; from city court of Oglethorpe— Judge Greer. February 28, 1921.</p>

<p>Indictment for possessing intoxicating liquor; from Jasper superior court — Judge Park. February 14, 1931.</p>

Accusation of possessing intoxicating liquor; from city court of Waycross — Judge Crawley. February 24, 192Í. After conviction of William Spirakis of having whisky, he moved for a new trial, which was denied, and he excepted. I. As bearing on the defense of alibi, the following appeared in testimony of witnesses introduced by the accused: J. E. McClellan testified: “ I was present with Mr. Warren the night we found some whisky down there close to Bill Spirakis’s place.

<p>Certiorari; from Laurens superior court- — Judge Kent. February 22, 1921.</p>

<p>Accusation, of possessing intoxicating liquor; from city court of Carrollton — Judge Hood. February 12, 1921.</p>

<p>Accusation of disturbing worship; from city court of Carroll-ton— Judge Hood. February 12, 1921.</p>

<p>Whether there was a conversion of the plaintiffs’ cotton, delivered to the defendant to be ginned, was a question for the jury, under the evidence in this case, and the court erred in granting a nonsuit.</p>

<p>Accusation of possessing intoxicating liquor; from city court of Carrollton — Judge Hood. February 12, 1921.</p>

<p>Complaint; from Floyd superior court — Judge Nunnally presiding. June 18, 1920.</p>

<p>1. Pending review on writ of error of a case wherein judgment had been rendered in favor of a minor, there was no jurisdiction in the superior court in vacation, and in a county other than that where the judgment was rendered, to hear and pass on a petition by the next friend of the minor, to be allowed to compromise the judgment.</p> <p>2. Upon affirmance of the judgment in a ease wherein a supersedeas bond has been given, the defendant in error can have execution to issue against the principal and the surety, without entering formal judgment on the bond.</p> <p>3. Payment, after affirmance of the judgment first mentioned, by the defendant to the attorneys for the plaintiff {.who were to have. one half of the recovery) of half the amount of the judgment, and acceptance thereof in full and final settlement of their claim, did not affect the rights of the minor.</p> <p>4. There being no jurisdiction to pass the order allowing the next friend of the minor t.o settle the judgment, payment thereunder did not bind the minor; as the next friend was not authorized, without due judicial examination and approval, to settle the judgment.</p> <p>5. No part of the money so paid to the attorneys, or to the next friend, having ever been received by the minor and retained after his majority, he was not estopped from enforcing the execution issued in his favor; although the unauthorized settlement by the attorneys and the next friend occurred more than seven years before the levy, and more than three years elapsed from the date of the minor’s majority to the date of the levy.</p>

<p>The sums paid to the defendant under the installment contract were recoverable by the plaintiff, under the evidence. The judge of the municipal court properly awarded judgment against the defendant, and the judge of the superior court did not err in overruling the certiorari.</p>

<p>Eviction; from Fulton superior court — Judge Ellis. December 11, 1920.</p>

<p>Mortgage foreclosure; from city court of Monroe — Judge Stone. January 29, 1921.</p> <p>John L. McGarity sold an automobile to T. D. Pannell, under a contract of sale dated October 27, 1819. The parts of the contract that are material so far as this case is concerned are as follows : “ On November 1st, I promise to pay John L. McGarity or bearer eleven hundred and fifteen dollars, with interest from date at eight per cent, per annum. . . This note is given as purchase-money for one five-passenger Maxwell touring car, . . and to secure the payment of same I hereby mortgage to said John L. McGarity the following described property [describing two mules]. . . The title to the property is retained by said John L. McGarity at his option. . . At the maturity of this note, if still unpaid, the vendor, his agent ór attorney, is authorized to take possession of said property and to sell the same for cash at public outcry before the court-house door in the city of Monroe . . and apply the net proceeds from the sale to this debt.” This contract was properly recorded on November 11, 1919. On June 29, 1920, McGarity brought an action of bail-trover against Pannell for the automobile described in the above contract of sale, Pannell having paid nothing on the note for the purchase-money. At the return term of the court Pannell filed his answer, disclaiming all title to the automobile, and tendered it back to the plaintiff, and, it being impracticable to bring the property into court, deposited it with the sheriff of the county, subject to the disposal of the plaintiff, and so notified the plaintiff. On October 4, 1920, McGarity notified counsel for Panneli that he was going to take the car from the hands of the sheriff and sell it under the power of sale contained in the note, and without objection he took possession of the car, advertised it for sale, and complied with all the requirements of the written power of sale contained in the note, and on October 9, 1920, the automobile was sold at public outcry before the court-house door in the city of Monroe and brought the sum of $225, which sum — less $2 paid for the services of the auctioneer — was duly entered as a credit on the note. Subsequently, when the trover suit came on for its final hearing, it was agreed by counsel for both sides that.the only issue in the case was as to which party was liable for the court costs, and after evidence had been introduced on the question of á demand before the suit was brought for the return of the property, the jury returned the following verdict: “We, the jury, find for the plaintiff the property in dispute, and that demand was made for same, so as to entitle plaintiff to recover his costs of suit,” and the following judgment was entered on the verdict: “ Whereupon it is ordered, considered, and adjudged by the court that plaintiff recover of the defendant for use of officers of court-dollars costs of suit.” Subsequently McGarity foreclosed his mortgage on the two mules referred to in the contract of sale, and an affidavit of illegality was interposed by Pannell. Upon the trial of the issue thus formed, the only ground of illegality insisted upon was as follows: “ That said mortgage is void and unenforceable, for that, the same having been given for the purchase-money of one five-passenger Maxwell touring car, 1920 model, serial No. 285829, No. of motor 280642, and the said mortgagee having filed suit in trover for said car in said city court 'of Monroe, returnable to the July quarterly term, 1920, thereof against said mortgagor, and said mortgagor at said term of the court having tendered back said automobile bo' said mortgagee, with reasonable hire therefor, and said mortgagee afterwards having sold said car and retained the proceeds thereof, said proceedings on the part of the mortgagee constituted a rescission of said contract and mortgage, and there is no further liability thereon.” The case was submitted to the judge without the intervention - of a jury, he dismissed the affidavit of illegality, and Pannell excepted.</p>

<p>Trover; from Dooly superior court — Judge Gower. January 6, 1921.</p>

<p>Conviction of assault with intent to murder; from Jasper superior court — Judge Park. February 14, 1921.</p> <p>Application for certiorari was denied by tbe Supreme Court.</p>

<p>Indictment for unlawfully carrying pistol; from Jasper superior court — Judge Park. February 14, 1931.</p> <p>Application for certiorari was denied by tbe Supreme Court.</p>

<p>Motion to change venue; from Chattooga superior court — Judge Wright. March 22, 1921.</p>

<p>Trover; from city court of Morgan — Judge Miller. November 25, 1919. See 25 Ga. App. 138; 151 Ga. 227.</p>

<p>Action for damages; from Pickens superior court — Judge Morris. July 5, 1919.</p>

<p>Affidavit of illegality; from Sumter superior court — Judge Littlejohn. September 26, 1919.</p>

<p>Validation of bonds; from Emanuel superior court — Judge Hardeman. December 1, 13, 1919.</p>

<p>Action for breach of contract; from city court of Blakely — Judge Sheffield. November 15, 1920.</p>

<p>Trover; from Marion, superior court — Judge Howard. October 28, 1920.</p>

<p>Certiorari; from Worth superior court — Judge Eve. November 5, 1920.</p>

<p>Action to establish lost deed; from Berrien superior court — Judge Thomas. February 14, 1930.</p>

<p>Action on contract; from city court of Floyd county — Judge Nunnally. October 19, 1920.</p>

<p>Complaint; from city court of Columbus — Judge Tigner. December 8, 1920.</p>

<p>Complaint; from Bibb superior court — Judge Mathews. December 2, 1920.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Certiorari; from Fulton superior court — Judge Bell. October 23, 1920.</p>

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

<p>Action for damages; from city court of Sandersville — Judge Jordan. December 11, 1920.</p>

<p>There was not such evidence of a common-iaw marriage of the plaintiff to the decedent as would show that she was entitled to sue as his wife for his homicide, under the Civil Code, § 4424.</p>

<p>Complaint; from city court of Atlanta — Judge Reid. January 3, 1921.</p>

<p>Where one deals with a special agent it is incumbent’ upon him to ascertain the extent of the agent's authority.</p>

<p>Complaint; from Carroll superior court •— Judge Terrell. December 23, 1921.</p>

<p>Processioning; from Glascock superior court — Judge Walker. December 30, 1920.</p>

Appeal; from Wayne superior court — Judge Highsmith. February 1, 1921. This is a contest over the appointment of an administrator of the estate of Marion Hopwell, decedent. The decedent was a resident of Wayne county, Georgia, and died in September, 1919. He was unmarried, and his heirs at law were his brother, George W. Popwell, and two sisters, Mrs. Georgia A. Nail and Mrs. Martha Harrison.

<p>Action for damages; from Wayne superior court — Judge Highsmitb. January 15, 1921.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Complaint; from Troup superior court — Judge Terrell. December 27, 1920.</p>

<p>Complaint; from city court of Athens- — -Judge West. September 2, 1919.</p>

<p>Levy and claim; from city court of Sparta- — -Judge Johnson presiding. July 10, 1920.</p>

<p>Action for damages; from Walton superior court — Judge Cobb. August 25, 1920.</p>

<p>Distraint; from Montgomery superior court — Judge Graham. July 10, 1920.</p>

<p>Forfeiture of recognizance; from Colquitt superior court — Judge Thomas. October 14, 19.20.</p>

<p>Action for damages; from Bibb superior court — Judge Malcolm D. Jones. December 23, 1920.</p>

<p>Certiorari; from Bartow superior court — Judge Tarver. September 27, 1920.</p>

<p>Action on contract; from Clarke superior court — Judge Cobb. October 26, 1920.</p>

Complaint; from Decatur superior court — T. S. Hawes, judge pro hac vice. December 13, 1920. Bank of Morgan obtained a judgment against Clardy, Lumber Company, a corporation. A return of nulla bona was entered by the sheriff on the execution.

<p>Action on bond; from Grady superior court — Judge Wilson. September 23, 1920.</p>

<p>The petition set forth a cause of action and was not subject to the demurrers, either general or special, and the court did not err in overruling them. There was evidence to support the verdict, and the court did not err in overruling the motion for a new trial.</p>

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

<p>The petition set forth a cause of action for conversion of cotton by the ginner, and was sufficient as against a general oral demurrer.</p>

Levy and claim; from Whitfield superior court — Judge Tarver. January 8, 1931. An attachment based upon the fraudulent debtor’s act was levied on the entire stock of merchandise, etc., of J. L. Collins. A'claim to the property was interposed by Stewart Wright, the ease was tried before the judge without a jury, on an agreed statement of the facts, he rendered a judgment finding the property subject, and the claimant excepted.

<p>Motion to set aside judgment; from Floyd superior court — Judge Wright. January 12, 1921.</p>

<p>Complaint; from city court of Valdosta —Judge Cranford. January 22, 1921.</p>

<p>Action for damages: from city court of Atlanta •— Judge Reid. December 15, 1920. <</p>

<p>Action for damages; from Muscogee superior court — Judge Muuro. January 15, 1931.</p>

<p>Complaint; from city court of Wrightsville — Judge.Kent presiding. February 25, 1921.</p> <p>This was a suit on the following account: “October 3, 1916. 2 bales of middling lint cotton, at 15 cents per pound, each weighing 500 pounds, $150.00.” The defendant’s answer denied the indebtedness, and after the evidence was concluded an amendment to the account sued upon was offered, in the following form: “ To 2 bales middling lint cotton, at 15 cents per pound, each weighing 500 pounds, $150.00, or interest of 7% from March 23,. 1916, on $1,125.00, to Feb. 12, 1917, $72.25.” The defendant objected to this amendment, on the ground that it set out a new cause of action. The judge overruled the objection, allowed the amendment, and then, of his own motion, directed a verdict against the defendant for $72.25 principal, and $22.23 interest on $1,125, at 7 per cent, per annum from March 23, 1916. The case came to this court on exceptions to the allowance of the amendment and to the direction of the verdict.</p>

<p>Complaint; from Ben. Hill superior court — Judge Gower. February 11, 1921.</p>

<p>There being evidence that would have supported a verdict for the plaintiffs for some amount of damages, and no evidence whatever to support a verdict for the defendant, a new trial should have been granted.</p>

<p>Action on insurance policy; from Fulton superior court — Judge George L. Bell. June 30, 1920.</p>

<p>Complaint; from city court of Albany — Judge Clayton Jones. June 14, 1930.</p>

<p>Complaint; from Douglas superior court — Judge Irwin. July 1, 1920.</p>

<p>Action on insurance policy; from Meriwether superior court — Judge Terrell. July 1, 1920.</p> <p>Application for certiorari ivas denied by the Supreme Court.</p>

<p>Complaint; from Taliaferro superior court — Judge Walker. October 8, 1920.</p>

<p>Certiorari; from Eulton superior court — Judge George L. Bell. October 14, 1920.</p>

<p>Certiorari; from Fulton superior court — Judge George L. Bell. October 27, 1920.</p>

<p>Levy and claim; from Worth superior court — Judge Eve. November 27, 1920.</p>

<p>Action for damages; from city court of Savannah — Judge Freeman. January 6, 1931. Companion case, post, 157.)</p>

<p>That the failure of the .plaintiff to have a ticket for transportation was due to absence of the ticket-agent at the station at which she went upon the defendant’s train was sufficiently shown by the evidence.</p> <p>An illegal arrest of the plaintiff at the instance of the defendant’s conductor was shown by the evidence. Touching is not essential to an arrest. If an arresting officer takes charge of a person who knows him to be such and who reasonably thinks, from the conduct of the officer, that he is under arrest, an arrest is made.</p> <p>Arrest without a warrant is a tort where not within one of the statutory exceptions.</p> <p>The verdict for $750 in favor of the plaintiff, a woman who was in a delicate condition and who became so excited and overwrought by her illegal arrest that she remained in bed for about eight days and was confined to the,house about six weeks, does not appear to be so excessive as to show bias and prejudice on the part of the jury.</p> <p>The court did not err in charging in the words of the Penal Code (1910), § 914, as to what constitutes an arrest.</p>

<p>Appeal; from Richmond superior court — Judge Henry C. Hammond. January 19, 1921.</p>

<p>Complaint; from Cobb superior court — Judge Blair. January 15, 1921.</p> <p>Application for certiorari was denied by the Supreme Court.</p> <p>Mount Airy Mantel & Table Company, manufacturer of furniture, , sued Mather Brothers, a partnership dealing in furniture, upon an account for furniture sold to the defendants. The defendants attempted in their plea and by their evidence to set off damages by reason of an alleged breach of contract for the sale and shipment of other furniture to them by the plaintiff. It was contended on the part of the plaintiff that there was no such contract. The court, at the conclusion of the evidence, directed a verdict in favor of the plaintiff for the amount sued for. -The defendants moved for a new trial, the motion was overruled, and they excepted.</p>

<p>Conviction of shooting at another; from Warren superior court — Judge Shurley. February 14, 1921.</p>

<p>By withdrawal of the instructions alleged to be erroneous, and the giving of instructions in lieu of them, of which there is no complaint, the court cured the error if any was made.</p>

<p>Trover; from city court of Tifton — Judge Price. March 7, 1921.</p>

<p>Trover; from city court of Swainsboro — Judge Kirkland January 12, 1921.</p>

<p>l! The evidence showing that the injury sued for occurred in the State of South Carolina, and no statute of that State being pleaded, the legal presumption is that the common law governing the relations of master and servant was in force in that State, and the rights of the parties must be determined by that law. Southern Railway Co. v. Cunningham, 123 Ga. 90 (50 S. E. 979); Rush v. Southern Railway Co., 19 Ga. App. 521 (91 S. E. 898).</p> <p>2. Under the common law, in a personal injury suit, by a servant against his master, the plaintiff cannot recover if he was guilty of contributory negligence, or if the injury sued for was caused by the negligence of a fellow servant. Rush v. Southern Railway Co., supra.</p> <p>3. Under the facts of the ease, it was not error t,o grant a nonsuit.</p>

<p>Action for damages; from Chatham superior court — Judge Meldrim. January 11, 1921.</p>

<p>Complaint; from city court of Carrollton — Judge Hood. March 16, 1921.</p> <p>The petition as amended made the following case. The defendant and the plaintiffs were the only heirs at law of their father, M. S. Hesterlee. Their father sold to the defendant forty acres of land, the lines of which had not been staked off. The land was staked off after the death of their father, and by agreement J. D. Hesterlee acted as agent for all the parties in winding up the decedent’s estate. After the land was staked off it was found that the defendant had seven and one fourth acres more of land than his deed 'called for or than he bought, and he entered into' an agreement with J. D. Hesterlee that if the latter would sell the other land of their father and let him (the defendant) keep the seven and one fourth acres he would pay to the other heirs, the same amount per acre for the seven and one fourth acres that the other land of their father brought at public sale. In making this agreement J. D. Hesterlee was acting for all the heirs of the estate, including himself and the defendant. The defendant agreed to and consented to abide by this agreement, and did not sell or offeT for sale the seven and one fourth acres. The other land belonging to the father and to his estate was sold at public sale and brought $26 an acre, and the proceeds were distributed among the heirs. The defendant consented that J. D. Hesterlee should so act, and knew that he was relying on this agreement when the rest of the land was sold. It is alleged that it would be harmful and a great loss to the estate now for the defendant to repudiate the agreement; that “the part of the contract, so far as all of the balance of the heirs, the plaintiffs in this case, is concerned, has been fully performed and carried out according to the agreement;” that it was agreed between the defendant and J. D. Hesterlee, acting for himself and the other plaintiffs, that the amount of land that the defendant had over and above that which he bought from their father was seven! and one fourth acres of land, and the defendant recognized that this land was a part of the estate of their father; that their father died on June 5, 1914, and that the agreement between J. D. Hesterlee and the defendant was. made in November, 1918; that there was no administration of the estate of their father, nor was any necessary, all of the heirs being sui juris and there being no debts of the estate; that the defendant now fails and refuses to comply with the contract although he has been in possession of the land, and this suit is brought for the purpose of recovering the sum of $188.50, and that demand has been made upon the defendant for this amount and payment refused by him.</p> <p>The petition was dismissed by the judge of the city court, on the ground “that the same appears to be a suit for land under a parol agreement, and this court is without jurisdiction to try the same.” To this judgment the plaintiffs excepted.</p>

<p>Trover; from Taliaferro superior court — Judge Shurley. March 21, 1921.</p>

<p>In a suit upon a promissory note jointly brought against the maker and a person whose name appeared on the back of the note as indorser, where the petition alleges as to the former that he was the maker of the note and is sued as the maker, and that the defendant named as indorser was an indorser for accommodation only, and is sued only as such indorser, and where the alleged indorser .files a sworn plea denying that • the note sued on was executed by him, or by any other person authorized by him so to do, and that the same was not his deed (the sheriff having made a return of non est inventus as to the other defendant, the alleged maker of the note), and the plea is not demurred to, and no motion to strike it is made, but, on the contrary, it is treated by both parties as a plea denying the execution of the mdorsement on the note, and not as denying the execution of the note itself, and the case is fought out before the jury on that theory, and a verdict is returned in favor of ’ the indorser, which finding is authorized by the evidence and approved by the trial court, this court will not order a new trial, on the ground that the plea of non est factum denied the execution of the note only, and did not deny the execution of the indorsement thereon, and that, therefore, the finding of the jury in favor of the indorser was contrary to law..</p>

<p>Accusation of carrying intoxicating liquor; from city court of Richmond county — Judge Black. March 7, 1921.</p>

<p>Action for damages; from Echols superior court — Judge Thomas. January 28, 1921.</p>

<p>Indictment for bigamy; from Hall superior court — Judge Jones. March 5, 1921.</p> <p>The special ground of the motion for a new trial, to which the decision refers, is in an amendment which states that counsel for the defendant has, since the rendition of the verdict, “ ascertained and found out the following newly discovered evidence,” set out, and “ attaches hereto, as Exhibits A and B, affidavits of himself and his counsel,” which “ are hereby made a part of this amended motion for a new trial,” etc. This amendment was allowed by the trial judge in an order which states that “ the recitals of facts contained in the foregoing motion for new trial and the amendment thereto are hereby approved as true and correct only to the extent that the statements are made and affidavits attached.” Gibson was convicted under an indictment for bigamy which charged that, being lawfully married to Erna Boland, he married Ara Lord. Eye-witnesses’testified to each marriage, and it appeared that the marriage to Erna Boland occurred about three years before the other marriage. The defendant, in his statement at the trial, said, in regard to the former marriage: “ The woman they claimed I married to hadn’t been divorced, and that released me from her.” The alleged newly discovered evidence set out in the motion for a new trial-was to the effect that prior to the defendant’s marriage with Ara Lord, which occurred on December 23, 1920, his marriage to Erna Boland was annulled and set aside in proceedings instituted by her in the superior court of Yancey county, North Carolina; and the affidavit of his attorney states that the affiant received a letter of the clerk of that court, dated February 21, 1921, saying, “ In answer to yours of recent date will say that Erner Boland had the marriage annulled, as the records in this office show, between her and Gibson,” and that the record would be made up for a stated sum. The affidavit states that the defendant has been unable to raise the money required for this purpose and that no reply has been received from an attorney who was requested “as a work of charity and justice to get up the records . . without charge.”</p>

<p>.Action for damages; from city court of Hall county — Judge Sloan. February 22, 1921.</p> <p>The action was for alleged breach of a contract of the railway company to put stock-gaps in its right of way through the plaintiff’s land. The petition alleged, that he made a deed to the company to a right of way across a 55-acre tract of land, and the deed contained a clause that the company “was to put in all necessary stock gaps;” that on this tract he had a 5-acre pasture where he kept his stock, and he explained to the company that the railroad going through his pasture would shut off his stock from a creek — the only means he had of watering his cattle'; that while no .time was specified in which the stock-gaps were to be put up, it was nevertheless understood that it was to be within a reasonable time and with as little delay as possible; that the company did not comply with the contract and failed to erect the stock-gaps as it had agreed to do; that after the railroad was run through his land the only means he had of watering his stobk was to take them to a well outside his pasture, and the pasture was fully two miles from his residence; that the use of this pasture was practically destroyed for a period of five years preceding the 17th or 18th of September, 1917; that thereby he was injured and damaged in the sum of $500; and that he “ has at all times urgently requested the defendant company to comply with its contract to put in the gaps.” The suit was filed in May, 1918.</p> <p>On the trial the plaintiff (the only witness) admitted that the stock-gaps were put in by the defendant in September, 1917, and 'that he was entirely satisfied with the gaps put in; that he never gave the defendant written notice as to where he wanted the stock-gaps put, but that from time to time be urged the agents of the defendant to put them in, and that the last time he so urged them was in the summer of 1917, when he threatened to bring suit unless the gaps were put in, and that shortly after that they were put in, and were entirely satisfactory.</p>

<p>In a prosecution based on section 553 of the Penal Code (1910), it is a good defense for the accused to show that payment of a bank check, given in payment for farm, orchard, or dairy products, was refused by the drawee bank, when presented for payment, solely because, after the giving of the check and prior to its presentation for payment, the drawer of the check was placed in involuntary bankruptcy, and his funds in the bank, which were sufficient to pay the cheek, were seized by a receiver appointed to take charge of the bankrupt’s property.-</p>

<p>Indictment for abandonment of child; from Warren superior court — Judge Shurley. March 25, 1921.</p>

<p>1. Where in charging the jury the judge makes one distinct and unequivocal statement that before they can convict the accused on trial they must be satisfied beyond a reasonable doubt of his guilt, it is not necessary to reiterate this instruction in charging as to the various phases of the case as developed by the evidence.</p> <p>2. The instructions upon the defenses set up on trial for seduction were in substantial accord with the facts of the case, and afforded no cause for a new trial.</p>

<p>Accusation of larceny; from city court of Tifton — Judge Price. March 11, 1921.</p> <p>The accused was charged with stealing a saw and tw'O axes. There was testimony by Rowland, that he hired accused as a tie-chopper; that he furnished the three tools just mentioned, and lent them to accused, and did not charge them to him; that after working two or three weeks the accused left and went to work for another person, owing Rowland $80 when he quit, which amount Rowland had not been able to collect; and that Rowland had not since seen the tools. For the accused there was testimony to the effect that when he went to work for Rowland he already had a broad ax and a club ax, and borrowed of Williams (a witness) a crosscut saw, which he left in the house of another witness, where it remained; and that he bought a club ax and had it charged to himself. In his statement he denied that Rowland lent him any tools; etc.</p>

<p>Indictment for distilling intoxicating liquor; from Jasper superior court — Judge Park. March 10, 1921.</p>

<p>No harm from the instructions on the law of murder, even if they were erroneous, could have resulted, since the verdict was voluntary manslaughter.</p> <p>A ground of the motion for a new trial, that “ counsel for movant considers that the following material evidence should have gone to the jury in detei’mining the guilt or innocence of the prisoner,” setting out the evidence referred to, is not in proper form for consideration.</p> <p>The verdict was supported by evidence. ,</p>

<p>Accusation of vagrancy; from city court of Swainsboro — Judge Kirkland. March 28, 1921.</p> <p>The marshal of Summit testified: The accused had been around that place three or four weeks, during which period he worked about an hour and a half'. Witness did not know that he did not work any more than that; spoke to him about going to work, and got him a job with one Hicks. He said he was sick. He was tried in the mayor’s court on a like charge, and there confessed that he had not worked much, because he was sick. Witness saw him every day; he did not work for Hicks two days; he was seen at a house in the negro quarter, not in bed. Witness saw him on Monday; did not see him on Wednesday or Thursday. He might have made enough, in the time he worked, to support himself for the rest of the time. Witness did not think (but was not positive) that accused had any property or other means of support. — A physician testified that after the trial in the mayor’s court he examined the accused, who had syphilis; witness considered him able to work; could not say that he was not sick, or that he was able to work, at times other than that of the examination.</p>

<p>Accusation of adultery and fornication; from city court of Dublin — Judge Sturgis. March 29, 1921.</p>

<p>Accusation of larceny; from city court of Macon: — Judge Gunn. March 28, 1921.</p>

<p>Accusation of simply larceny; from city court of Wrights-ville — Judge Moye. March 19, 1921.</p> <p>Fulford, the prosecutor, had been losing seed-cotton by theft. He left two sheets of it in a field one night, and on next day found them in the house of Curvin, a negro. On the night ensuing, as Fulford, a deputy sheriff, and others watched Curvin’s house, the accused (Price and Frost) drove up and asked for water for their car. There was conversation between Price and Curvin, which the watchers did not hear; they talked in a low tone for eight or ten minutes; and then one or both of the two named brought the two sheets of seed-cotton from the house and put them into the car; and thereupon they and Frost were arrested. They did not put any water in the car. From the statements of the accused it appeared, that when they stopped at Curvin’s house for water, Curvin asked accused to make a short trip for him, saying he had two sheets of seed-cotton to carry, and would pay accused for the trip; that Curvin brought the cotton out of the house, and accused helped him to put it in the car; and that Curvin was not locked up, but later gave bond and had forfeited it. Fie did not appear to testify. Price stated that Curvin had admitted, in the presence of a person named, that Price was the innocent victim of a trap set for others, etc.</p> <p>Price was found guilty. Frost was acquitted.</p>

<p>Accusation of assault and battery; from city court of La-Grange— Judge Duke Davis. March 18, 1921.</p>

<p>Where a person who is married marries another person, the lawful husband or wife being alive, knowledge that such lawful husband or wife is alive is an essential element of the crime of bigamy, and must be charged in an indictment for bigamy, and where there is no such allegation in the indictment, no legal judgment can be entered thereon and it should be quashed on motion. Such a defect in an indictment would not be cured by verdict.</p>

<p>Indictment for larceny from house; from Lámar superior court — Judge Searcy. March 30, 1921.</p>

<p>Indictment for receiving stolen goods; from Chatham superior court. — Judge Meldrim. March 21, 1921.</p>

<p>1. The exception to the striking of the special plea of former jeopardy is controlled by previous rulings cited.</p> <p>2. The exceptions to instructions to the jury, as argumentative, and as unauthorized by evidence, are not well taken.</p> <p>3. Allegations that the verdict is contrary to specified parts of the charge to the jury are covered by the general grounds of the motion for new trial.</p> <p>4. Where, upon a verdict finding the accused guilty of robbery, and recommending her “ to the extreme mercy of the court,” the judge imposed sentence as for a misdemeanor (i. e., twelve months on the State farm, instead of service on the county' chain-gang), the form of the verdict resulted in no harm to the accused, and furnished no cause for a new trial.</p>

<p>Indictment for murder; conviction of manslaughter; from Fulton superior court — Judge Humphries. March 17, 1921.</p>

<p>Accusation of cheating and swindling; from city court of Cairo — Judge Bigsby. March 19, 1921.</p>

<p>Indictment for manufacturing intoxicating liquor; from Harris superior court — Judge Munro. March 5, 1921.</p>

<p>An action brought in a State court by a resident plaintiff against a nonresident railroad company and an engineer of the company who was a resident of the State of Georgia, jointly, to recover damages in excess of $3,000 on account of alleged personal injuries to the plaintiff, involves no separable controversy between the plaintiff and the nonresident defendant, entitling the latter to remove the cause on that ground to the Federal court, where the petition states a prima facie case of joint and concurrent liability against both of the defendants. Louisville & Nashville Railroad Co. v. Roberts, 136 Ga. 270 (71 S. E. 425).</p> <p>2. The petition clearly charged that the resident defendant, the engineer of the railroad company, was jointly liable with the company. There was therefore no merit in the ground of the petition for removal to the Federal court, alleging that the engineer was fraudulently joined with the railroad company for the purpose of defeating its right of removal.</p> <p>3. Under the above rulings and the facts of this case, the court did not err in overruling the petition for removal to the Federal court.</p> <p> Judgment affirmed. Broyles, C. J., and Bloodworth, J., concur. Luke, J., dissents. </p>

<p>Certiorari; from Fulton superior court — Judge George L. Bell. October 13, 1920.</p>

<p>Description, and counsel’s names, as in case next-before.</p>

<p>Action for breach of contract; from city court of Savannah — Judge Freeman. November 26, 1920.</p> <p>The contract sued on in this case is contained in a letter from the plaintiff to the defendant company, dated April 22, 1918, and accepted April 24, 1918, which reads as follows: “We are pleased to confirm by the present our closing with you through Mr. P. P. Lopez for 10,000 tons of High Volatile Coal, similar more or less to Westmoreland, for delivery by barges at the ports of Sagua la Grande or Caibarien [Cuba], in accord with our instructions at the price of $13.75 per ton of 2,240 pounds, cost, freight and insurance. Delivery to be made during the months of July to November, 1918, inclusive, it being understood that you will undertake by every possible means to make a proportionate delivery of the entire quantity in each month commencing in July next and finishing in November next. We are to have the privilege on our part of increasing this contract to a maximum of 20,000 tons under the same conditions as applicable to the first 10,000 tons, and which option is to be open to us until the 15th of June, 1918, inclusive. We shall be allowed for the discharge of each barge the time required for tugs to run from port of discharge light to Key West and return to port in Cuba with another barge load, and which time is estimated to be about four days, but in any event we guarantee to take the cargo out as fast as the vessels can deliver same. Payment is to be made 30 days after date of barges clearance for Cuba, or, if preferable to you, by drafts at 30 days’ date of clearance of vessels, payable in this city [New York]. In confirmation of this transaction we will appreciate very much returning to us the enclosed duplicate copy of this present letter duly accepted by you and which we require for our files.”</p> <p>The petition alleged, among other things, the following facts: “that at the time said contract was made said defendant company well knew that petitioner was engaged in the business of purchasing coal for resale to sugar mills in Cuba who required all of their supplies by December 1st in each year for use during the grinding season beginning soon thereafter; and before said contract was reduced to writing Mr. R. P. Lopez, who is referred to in said contract and who negotiated the purchase of said coal, notified said defendant company that petitioner was purchasing said coal for the purpose aforesaid; that said defendant company failed to make a single delivery of coal under said contract- until the month of November of said year; that during the time limit of said contract petitioner repeatedly urged said defendant company to provide means for delivering the 10,000 tons of coal sold to it; that it offered to said defendant company a Cuban tugboat and a fleet of barges which could be chartered from Domingo Nazabal of Cienfuegos, Cuba, which offer was refused; and that it requested said defendant company to divert some of the coal which it was shipping to Havana, Cuba, to the ports of Sagua la Grande and Caibarien, which request was likewise refused; that during the month of October, 1918, said defendant company authorized petitioner to charter for defendant’s account from the Sugar Products Company of New York City a small steamer, the “Hopper,” and several barges to be used in delivering as much coal as possible under said contract from Key West, Florida, to said Cuban ports; but by reason of the fact that said defendant company failed to assemble coal in sufficient quantities at Key West, only-978 tons of coal were delivered by this means during the remainder of the contract time. The petition contained various .letters and telegrams sent by the plaintiffs to the defendant company during the life of the contract, urging and demanding deliveries of the coal purchased, and re-notifying the defendant of the purpose for which the coal was bought. The petition further alleged that the defendant company failed to deliver within the contract time 7445 tons of the coal purchased; that the market price of coal, similar more or less to Westmoreland, at Sagua la Grande and at Caibarien on November 30th, 1918, was $18 per ton; but petitioner was unable to purchase all of the coal remaining undelivered by said defendant company, in sufficient quantities for immediate delivery, in any Cuban market, and was compelled to purchase the greater portion of said coal in the markets of the Hnited States and to deliver it by steamers at said Cuban ports; that “in order to make prompt deliveries of coal to its customers in Cuba, petitioner - purchased and transported from Newport News, Virginia, to Caibarien, Cuba, by tbe steamship ‘ Ottar 1937 tons of coal at a total cost, including the purchase-price, freight and insurance, of $31,928.36; that it purchased and transported from Newport News to Caibarien by the steamship ‘ Nicholas Cuneo 827 tons of coal at a total cost, including the purchase-price, freight and insurance, of $13,371.30; that it purchased and transported from Newport News to Sagua la Grande by the steamship ‘Thyra S. 1603 tons of coal at a total cost, including the purchase-price, freight and insurance, of $25,080.88; that it purchased and transported from Newport News to Caibarien by the steamship ‘ Adonis/ 1955 tons of coal at a total cost, including the purchase-price, freight and insurance, of $32,119.13; and that it purchased at Sagua la Grande, Cuba, 1123 tons of coal at $18.00 per ton, or at a total cost of $20,214.00; making a total of 7445 tons so purchased for the purpose of replacing non-deliveries by said defendant. company at a total cost of $122,713.67;” that “for the purpose of moving said coal from Newport News to Cuba petitioner was compelled to charter from the Munson Steamship Line, as agents for the United States Shipping Board Emergency Fleet Corporation, the steamships ‘ Ottar and f Adonis, and from the Atlantic Fruit Company of New York, the steamship ‘Nicholas Cuneo; and was required in the case of each steamship so chartered to make and execute a Charter Party,” containing provisions for demurrage; that “although each cargo was loaded and discharged as fast as the port facilities at Newport News and Caibarien would permit,” petitioner “ incurred and became liable to pay demurrage bills aggregating the sum of $11,555.11.” Attached to the petition as an exhibit was an itemized statement of each demurrage bill. The petition further alleged that “by reason of the failure of said defendant company to deliver 7445 tons of the coal purchased from it, in accordance with the terms of the contract, petitioner sustained an' actual loss and damage of $31,900.03.” A statement of petitioner’s alleged damages was attached to the petition as an exhibit. By way of amendment petitioner alleged that “ all of the coal, purchased as aforesaid, was of the kind described in petitioner’s contract with said defendant company, except the cargoes shipped On the steamers Ottar and Adonis, which were New River coals once screened, a very lumpy coal, and the best substitute to be found in the market at the time said cargoes were respectively purchased; that said coal was purchased at the lowest prices obtainable for immediate delivery, and that the whole amount was delivered in Cuba by January 20, 1919, at the smallest cost and expense possible.” ,</p> <p>The defendant filed an answer admitting the contract but denying any liability thereunder, and denying that the defendant was notified at the time the contract was made that'the coal was being purchased for the purpose of resale. The defendant admitted also that it had failed to deliver within the contract time 7445 tons of the coal purchased from it, but alleged that deliveries were made after the contract time' with the full knowledge and consent of the plaintiff; also that if the plaintiff purchased and transported coal from Newport News, Virginia, as stated in the petition, the same was not done under any contract with the defendant, and the defendant is not responsible therefor, and that the defendant was given no notice of what the plaintiff proposed to do and no opportunity for furnishing the coal called for by the contract. By an amendment to the answer the defendant expressly denied that it was liable for any of the damages or expenses set out in the petition or that any of them were collectable, even if the damages were sustained and the expenses incurred.</p> <p>No demurrer, either general or special, was interposed; and the court, after excluding certain evidence offered by the plaintiff, directed a verdict for the defendant, the court saying to the jury: “1 have had a great deal of difficulty in coming finally to a conclusion as to the law of this case. It has interested me a great deal, the arguments were illuminating, and the respective positions of the parties forcefully presented. I have given to it every moment of available time since you were discharged on ’Wednesdajq and I have finally come to the conclusion to charge you as per the first request of the defendant in the case; that is to say, that in view of the pleadings and the law [italics ours] the court directs the jury to find in favor of the defendant; and I will ask Judge Adams to enter a verdict to that effect.” To this judgment the plaintiff excepted, and assigned error upon the rejection of the proffered testimony, and also upon the direction of the verdict. In order to avoid repetition, the material evidence excluded by the court, as well as that admitted, is not set forth in this statement of facts, bnt will- be found stated in the following opinion.</p>

<p>Kule;. from Franklin superior court — Judge W. L. Hodges. December 13, 1921.</p>

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

<p>A county is not liable for damage from the negligent operation of an engine by its servants in duly authorized public-road building, whereby sparks emitted from the engine set fire to a house.</p>

<p>Condemnation under liquor law; from city court of Quitman — Judge Baum. January 11, 1921.</p>

<p>1. The accusation was subject to some of the special grounds of the demurrer, and the court erred in overruling the whole demurrer.</p> <p>2. The error in overruling the demurrer rendered the further proceedings in the case nugatory.</p>

<p>Accusation of stealing ride on train; from city court of Swainsboro — Judge Kirkland. March 28, 1921.</p>

<p>Accusation of larceny; from city court of Tifton — Judge Price. March 7, 1921.</p>

<p>1. “ The eighteenth amendment to the constitution of the United States, and the ‘ national' prohibition act,’ popularly known as the Volstead act; do not superseüe or abrogate the existing State law known as the prohibition act, approved March 28, 1917 (Act Ex. Sess. 1917, p. 7).”</p> <p>2. Both the sovereignty of the United States and the sovereignty of the State of Georgia having jurisdiction over the illegal act of possessing liquor, the same may constitute a criminal offense equally against both sovereignties, subjecting the guilty party to punishment under the laws of both, and the punishment in one, sovereignty is no bar to his punishment in the other; and a conviction for the same offense in both the Federal and State courts is not m violation of those provisions of the Federal and State constitutions that provide, in substance, that, no person shall be twice put in jeopardy of life and limb for the same offense.</p> <p>3. Under the above rulings, the trial court did not err in striking the defendant’s plea of former jeopardy, in which he alleged that he had previously plead guilty in the United States district court to the same offense — possessing the same whisky at the same time as charged in the State indictment, and that a conviction in the State court would be in violation of certain named provisions of the.Federal and State constitutions which declare that no person shall be twice put in jeopardy of life and limb for the same offense.</p> <p>4. Moreover the national prohibition law, known as the Volstead act, when construed, as it must be, in the light of the 18th amendment, does not prohibit the possession of liquor or other intoxicants for the personal consumption of the owner thereof, his family, and his bona • fide guests; whereas our State prohibition law does prohibit and make penal the mere possession of liquor, regardless of the purpose for which it is to be used by the owner; and therefore, the two laws being clearly separate and distinct in this particular, a conviction of the national offense is no bar to punishment for the State offense.</p>

Action for breach of contract; from Fulton superior court — Judge George L. Bell. June 15, 1920. C. H. Mann sued J. EL Bennett for breach of a contract of sale, the petition alleging, after certain parts thereof had been stricken upon demurrer, that the defendant refused to accept and pay for 2,000 hides, and that the hides were resold for the defendant’s account at a certain loss, for which judgment was prayed.

<p>Complaint; from city court of Carrollton — Judge Beall. November 6, 1920.</p>

<p>Complaint; from city court of Tifton — Judge Price. November 34, 1930.</p> <p>Suit upon an open account for tbe sum of $104 was brought in the city court of Tifton, which court has no jurisdiction of a civil case in an amount under $100. The proof authorized a recovery for the plaintiff in a sum not exceeding $98; and the plaintiff in open court, without amending the petition, abandoned his claim for the full amount and contended only for the amount proved. A verdict having been rendered for the plaintiff in the Ruin of $98, the defendant made a motion to arrest the judgment, upon the ground that the verdict and judgment were for an amount not within the jurisdiction of the court. The motion was overruled, and exception was taken.</p>

<p>Distraint; from city court of Blakely — Judge Sheffield. November 18, 1920.</p>

<p>Appeal; from Carroll superior court —Judge Terrell. October 26, 1920.</p>

<p>Complaint; from Walton superior court — Judge Cobb. November 28, 1920.</p>

<p>The allegations of the petition set forth a cause of action, and the court erred in sustaining the demurrer.</p>

<p>Complaint; from Bibb superior court — Judge Malcolm D. Jones. February 7, 1921.</p>

Certiorari; from Fulton superior court — Judge Ellis. January 24, 1921. Application for certiorari was denied by the Supreme Court. On November 26, 1919, Mahoney leased from McKenzie an apartment in Atlanta, for a term beginning on the completion of the-building and ending on August 31, 1921, for a specified rental payable on the first of each month in advance at the office of the agent of the landlord named in the lease.

<p>Complaint; from Crisp superior court — Judge Gower. March 8, 1921.</p>

<p>Money rule; from Milton superior court — Judge Blair. August 27, 1920.</p>

<p>1. Abuse of the judge’s discretion in overruling the motion for continuance does not appear. Luke, J., dissents.</p> <p>2. Refusal to allow a renewal of the motion, later in the same day, was not erroneous.</p> <p>3. The evidence sustained the verdict of conviction.</p>

<p>Certiorari; from McDuffie superior court — Judge Henry C. Hammond. March 7, 1921.</p>

<p>Complaint; from city court of Waynesboro — -Judge W. H. Davis. April 13, 1921.</p>

<p>Complaint; from city court of Macon — Judge Gunn. March 23, 1921.</p>

<p>Complaint; from city court of Carrollton — Judge Hood. April 1, 1921.</p>

<p>Accusation of carrying pistol without license; from city court of Carrollton- — ■ Judge Hood. April 1, 1921.</p>

<p>Indictment for incestuous adultery; from' Tattnall superior court — Judge Sheppard. March 17, 1921.</p>

<p>Where a draft is given for the purchase-price of land, with the understanding that the payee of the draft is to make a deed conveying the land to the drawer, and no such deed is ever given or tendered, the maker of the draft is not liable thereon to the payee.</p>

<p>Indictment for cheating and swindling; from Tattnall superior court — Judge Sheppard. April 6, 1921.</p>

<p>Indictment for possessing intoxicating liquor; from Cobb superior court — Judge Blair. April 9, 1921.</p>

Complaint; from city court of Savannah — Judge Freeman. March 14, 1921. The petition is as follows: Georgia, Chatham County.

<p>Indictment for larceny; from'Laurens superior court — Judge Kent. April 9, 1921. . ,</p>

<p>Indictment for murder; conviction of manslaughter; from Eranklin superior court — Judge W. L. Hodges. April 2, 1921,</p>

<p>Accusation of possessing intoxicating liquor; from city court of Dublin — Judge Sturgis. April 18, 1921.</p>

<p>Accusation of violating liquor law; from city court of Macon — Judge Gunn. May 3, 1921.</p>

<p>Accusation of enticing cropper; from city court of Miller county — Judge Geer. April 16, 1921.</p>

<p>Whether or not a plea of guilty, freely and voluntarily entered, may be withdrawn after judgment, is within the trial judge’s discretion, which will not be controlled unless abused.</p>

<p>Accusation of larceny; from city court of Albany — Judge Clayton Jones. April 12, 1921. See Walker v. State, ante, 270.</p>

<p>1. That the court refused a request of counsel to allow the twenty-four jurors put upon the defendant to be called separately, and required to rise and remain standing until the next juror was called, was no cause for new trial; a list of twenty-four jurors having been furnished (with direction to strike therefrom) to counsel, who, after the twenty-four were put upon the accused, accepted the first twelve and went to trial.</p> <p>2. An assignment of error, that the court refused to allow counsel to prove “ other statements made under oath ” by the accused as a witness at the trial of a different case in another court, saying that it made no difference what other statements were so sworn to, shows no cause for a new trial, it not appearing what other statements counsel desired to prove. Complaint in the brief of counsel in this court, but not in the assignment of error, that the judge, in rejecting the offered testimony, expressed an opinion “ as to what the evidence showed or did not show,” does not avail.</p> <p>3 No error requiring a new trial is shown by the exceptions to instructions to the jury.</p> <p>4. The evidence authorized the verdict.</p>

<p>Action for damages; _ from Fulton superior court — Judge Pendleton. October 27, 1919.</p>

<p>Action for damages; from Cobb superior court — Judge Blair. June 16, 1920.</p>

<p>Attachment; from Thomas superior court — Judge Thomas. June 19, 1920.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Action for damages; from city court of Valdosta — Judge Cranford. September 14, 1920.</p>

<p>Complaint; from city court of LaGrange — Judge Duke Davis. October 9, 1920.</p> <p>Two notes for $32.68 each were sued on. Tbe defendant pleaded as shown by the headnote, and tendered $8.15 as the amount of principal and interest he owed the plaintiff. Exception was taken to a refusal to strike the plea on motion.</p>

<p>Complaint; from city court of Atlanta- — -Judge Keid. October 1, 1920.</p> <p>The action was against the director-general of railroads and the Central of Georgia Eailway Company; it being alleged that they were indebted to the plaintiff \$577.30, by reason of the following facts: He began work for the railway company as a machinist’s assistant or helper on October 1, 1917, and received regular pay of 22 cents per hour. He so continued until February 15, 1919, when he was discharged by defendants without cause or justification, and immediately obtained other employment, in which he is now engaged. About January 1, 1918, the railway company was taken over by the United States government, which has since operated and controlled it by lawful agencies. Plaintiff is entitled to an increase of pay of 23 cents per hour, for what is known as back time from January 1, 1918, until September 15, 1918, making a total of $577.30, “being the raise and back time” to which he is entitled under Supplement No. 4 to General Order No. 27, issued by the director-general of railroads on July 25, 1918, providing that “ helpers in the basic trades herein specified will be paid 45 cents per hour;” payment of which has been demanded and refused, and for which he prays judgment.</p> <p>Each of the defendants demurred on the grounds: that no cause of action appeared; that the agreement to pay an increase for back time for work already done and paid for appeared to be a gratuity without consideration, and not legally enforceable; and that it did not appear what if any amount the plaintiff claimed to be due for work done after Supplement No. 4 to General Order No. 27 became effective. The railway company demurred on the further ground that no obligation upon it was stated; the court judicially knowing that, during the times when plaintiff claims to have worked, the company was not in possession of or operating its properties, and was not employing any persons working thereon.</p>

<p>Petition to remove cause; from -Chatham superior court — Judge Meldrim. January 4, 1921.</p>

<p>Indictment for burglary; from Glynn superior court — Judge Highsmith. March 39, 1931.</p>

<p>Trover; from city court of Houston county — Judge Riley. March 21, 1921.</p>

<p>Indictment for assault with intent to rape; from Catoosa superior court — -Judge Tarver. March 25, 1921.</p>

<p>Complaint; from city court of Americus — Judge Harper. March 22, 1921.</p>

<p>Conviction of manslaughter; from Coffee superior court — Judge Summerall. April 9, 1921.</p>

<p>Indictment for assault with intent to murder; from Bibb superior court — Judge Mathews. March 28, 1921. -</p>

<p>Indictment for larceny of hog; from Bacon superior court — Judge Suinmerall. April 8, 1921.</p>

<p>1. None of the excerpts from the charge of the court, set out in the motion for a new trial, when considered in the light of the entire charge and the facts of the case, contains reversible error.</p> <p>2. The ground of the motion for a new trial complaining- of the admission of certain documentary evidence cannot be considered, as the evidence is not set forth in the ground, either literally or in substance, nor attached thereto as an exhibit.</p> <p>3. Upon the trial the plaintiff landlord did not prove any demand for the possession of the premises in dispute, but the tenant did not raise this issue in his counter-affidavit, and therefore the plaintiff was entitled to recover double rent, if entitled to recover any rent, from the date of the issuance of the dispossessory warrant.</p> <p>4. The verdict was authorized by the evidence, and the court did not err in overruling the motion for a new trial.</p>

<p>Indictment for larceny; from city court of Dublin — Judge Sturgis. April 18, 1921.</p>

<p>Accusation of larceny; from city court of Miller county — Judge Geer. April 16, 1921.</p>

<p>Attachment; from city court of Floyd county' — Judge Nunnally. March 20, 1920.</p>

<p>Accusation of drunkenness on highway; from city court of Swainsboro — Judge Kirkland. May 9, 1921.</p>

<p>Complaint; from city court of Hazlehurst — Judge Knox. December 11, 1920.</p>

<p>Complaint; from Warren superior court — Judge Hardeman presiding. January 3, 1931.</p>

<p>Complaint; from Bryan superior court — Judge Sheppard. April 11, 1921.</p>

<p>Accusation of assault and battery; from city court of Dublin — Judge Sturgis. May 16, 1921.</p>

<p>Complaint; from city court of Blakely — Judge Gray. February 22, 1921.</p>

<p>Action for damages; from Fulton superior court — Judge Pendleton. April 26, 1921.</p> <p>Miss Leila Roberts sued Willys-Overland Incorporated for damages, and in her petition alleged substantially tlie following facts: that on May 15, 1920, she purchased from the defendant an automobile, for which she paid in cash certain sums of money, and signed certain papers promising to pay other sums; that the defendant induced her to do this by certain representations and agreements, which it failed to carry out, and which she later found to be false and fraudulent; that in the writing which she had been induced to sign the defendant reserved title to the automobile until payment of all the sums stipulated to be paid, and on her failure to make the payments the defendant had the right to sue in "trover” for the recovery of the automobile, although the plaintiff in a court of equity would have had the right to have the whole transaction set aside because of defendant’s fraudulent representations; that when the plaintiff failed to make certain payments as stipulated in the contract, instead of filing " merely a suit in trover ” for the recovery of the property, the defendant instituted a bail-trover proceeding, making the necessary affidavit for that purpose, and as a result of said proceeding the plaintiff was, on October 28, 1920, arrested by the marshal of the municipal court of Atlanta, taken in custody, and held for several hours, subject to the gaze of the public; that plaintiff would not have been arrested had the defendant been sued in trover instead of bailtrover; that the affidavit made in the bail-trover proceeding was maliciously and wilfully issued and -was absolutely false, and was made for the sole purpose of humiliating the plaintiff; that the plaintiff is a woman fifty years of age, has resided in the city of Atlanta for a number of years, owns certain property, is highly respectable, and has never been arrested or held in custody before; that the property -was not likely to be eloigned or moved away, and this fact was well known to the defendant; that by reason of the above-stated acts, which were malicious and unwarranted, plaintiff has been damaged in the sum of $10,000; that there were two alternatives whereby the plaintiff could have prevented the arrest, to wit, by giving bond for the forthcoming of the property or by surrendering possession of the same, but because certain parties were at the time of her arrest out of the city she could not give the required bond, and that she was unable to surrender the automobile, because it was in a garage undergoing repair.</p> <p>The defendant filed a general and special demurrer to the petition, and, upon the hearing of the demurrer, the plaintiff filed an amendment, in which she alleged that the damages claimed were for- the malicious abuse of legal process. After allowing this amendment the trial judge sustained the general demurrer; and to this ruling the plaintiff excepted.</p>

<p>Trover; from city court of Greenville — Judge Hood presid- ' ing. May 10, 1921.</p>

<p>Accusation of misdemeanor; from city court of Carrollton — Judge Hood. May 13, 1921.</p> <p>The bill of exceptions in this case states that “the defendant was tried and convicted on June 14th, 1920, and sentenced to pay a fine of three hundred dollars or serve six months in the county chain-gang. Motion for new trial was filed, which was dismissed for failure of defendant to file a brief of evidence. The defendant then filed an extraordinary motion for new trial, which was also dismissed for the reason that defendant had failed to file a brief of evidence. Defendant then filed a motion or presented same to the court, asking that the judgment and sentence of the court in said case be set aside, on the ground that the accusation was drawn under section 722 of the Penal Code, and that the evidence adduced on the trial showed that if the defendant was guilty of anything at all, he would be guilty under section 723 (a) of Park’s Penal Code; the defendant asking that a rule nisi be granted, .directed to the solicitor of the city court of Carrollton, to show cause why said judgment should not be set aside. Hpon the motion being presented to the judge of the city court he refused to grant said rule nisi, and passed the following order: ‘ The within motion to set aside judgment having been presented to me, and after considering same, it is ordered, considered, and adjudged that the rule nisi prayed for be and the same is denied.’ ”</p>

<p>Distraint; from Eulton superior court — Judge Ellis. November 5, 1920.</p>

<p>Conviction of manslaughter; from Toombs superior court — Judge Hardeman. April 19, 1921.</p>

<p>Motion to change venue; from Paulding superior couit — Judge Irwin. May 3, 1921.</p>

<p>Accusation of attempt to commit burglary; from city court- of Lawson — Judge Edwards. May 7, 1921.</p>

<p>The evidence in this case demanded a finding that the landlord had no lien for supplies, since the supplies were furnished to his tenant by a third person on the tenant’s credit, and the mere furnishing of the money, three or four weeks thereafter, by the landlord to enable the tenant to pay promptly for the fertilizer already purchased and partly used was not necessary to make the crop; and the judgment of the trial judge (who tried the ease without a jury) in favor of the landlord is contrary to law and 'the evidence.</p>

<p>Conviction of shooting at another; from Muscogee superior court — Judge Humphries presiding. May 16, 1921.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Indictment for larceny from house; from Taliaferro superior court — Judge Shurley. May 23, 1921.</p>

<p>Indictment for manufacturing intoxicating liquor; from Walker superior court — Judge Wrigbt. May 16, 1921.</p>

<p>Indictment for larceny of automobile; from Polk superior court — Judge Irwin. May 17, 1921.</p>

<p>1. There is no error in the instructions defining a “ reasonable doubt,” or in those relating to corroboration of an accomplice, of which complaint is made in the motion for a new trial.</p> <p>2. “ The sufficiency of the corroboration of the testimony of the accomplice to produce conviction of the defendant’s guilt is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting the defendant with the crime, it can not be said, as a matter of law, that the verdict is contrary to the evidence.”</p>

<p>Accusation of cheating, etc.; from city court of Morgan — Judge E. L. Smith. May 28, 1921.</p>

<p>Accusation of drunkenness on highway; from city court of Dawson— Judge Edwards. May 7, 1921.</p> <p>The accusation was under the Penal Code, § 442, and charged the drunkenness manifested by stated misconduct as having occurred on the Dawson and Brownwood public road. The.evidence did not show that the misconduct occurred on the public road designated, but showed that it occurred on a little road leading into the highway designated, three or four hundred yards therefrom, and in front of the home of witnesses. The accused and others with him were driving toward the public road, and went to it; but the witnesses did not know what occurred on the public road designated. The accused was seen on the same day on the public road, standing up in the buggy and beating the mule, apparently to make it go faster. He and his companions in the buggy were pursued by a deputy sheriff; they turned out of the public road into another side road, where, as the officer was overtaking them, the accused jumped from the buggy and fled. The officer supposed that the accused was drunk, but not “ plumb drunk.” He did not observe any boisterous conduct, or hear the accused say anything.</p>

<p>Indictment for forgery; from Bibb superior court — Judge Mathews. May 14, 1921.</p>

<p>Indictment for simple larceny; from Cobb superior court — Judge Blair. May 7, 1921.</p> <p>According to the testimony, Mr. Black gave his wife money from time to time, which she kept in a little sack that she pinned to the shirt she wore. The last time she saw the money, as she recollected, was on Sunday morning, when she put into the sack what money was then given to her, tied it up, and pinned it to the shirt she was wearing. She slept in this shirt with the money pinned on it. She pulled off the shirt on Monday morning between 7 and 8 o’clock, when her laundress (the accused, who for several years had done her washing) came for the clothes, and did not see the money then. She threw the shirt in with the other clothes, tied them up, and they were taken away by the accused. She did not notice that the money was gone until later on Monday, or ('as the testimony in one place indicates) on the next day, Tuesday morning. Then Mr. Black went to the house of the accused, and asked her about it. She said she had not seen it, did not have it, and knew nothing about it. The clothes had then been washed,' and were hanging on the line. “ She showed me [Black] where she said she hung it on the line, but it was gone. She said somebody had stolen it.” The premises were searched, hut the money was not found. The father, mother, and brother of Mr. Black lived in the house with him and his wife. No testimony was offered by the accused. According to her statement, she was a woman over seventy years old, and was innocent of the charge.</p>

<p>Indictment for murder; from Wheeler superior court — Judge Eschol Graham. May 21, 1921.</p>

<p>Indictment for disturbing worship; from Taliaferro superior court — Judge Shurley. May 23, 1921.</p>

<p>Indictment for manufacturing intoxicating liquor; from Webster superior court — Judge Littlejohn. May 11, 1921.</p>

<p>Accusation of possessing distilling apparatus; from city court of Douglas — Judge Henson. May 14, 1921.</p>

<p>Indictment for manufacturing intoxicating liquor; from Wheeler superior court — Judge Graham. May 21, 1921.</p>

<p>Illegality of execution; from Grady superior court — Judge Wilson. September 23, 1920.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Certiorari; from Fulton superior court — Judge George L. Bell. October 27, 1920.</p> <p>T. J. Cheshire brought suit iu the municipal court of Atlanta against Walter B. Hines, director general of railroads. When Federal control was terminated, under the provisions of the transportation act of 1920, John Barton Payne, as Federal agent, automatically became the defendant. The petition alleged, that on May 7, 1918, there was delivered to the defendant’s agents at Norfolk, Va., for the purpose of transportation to Atlanta, Ga., thirty cases of fresh cakes which were consigned to the plaintiff, and that he was damaged by the negligence of the agents of defendant, in that the cakes “ were not delivered to plaintiff in Atlanta until the 16th day of May, 1918, and, when they were delivered, such cakes of bakery goods were badly spoiled and deteriorated, and largely unmerchantable; to the damage and injury of petitioner in the sum of $281.12.” This amount was arrived at by deducting the salvage from the invoice price of the goods. Tile defendant denied liability. On the trial of the ease the plaintiff introduced a bill of lading issued May 7, 1918 (on whicli was endorsed “too late for to-day’s forwarding”), and a way-bill “from Portsmouth, dated May 8th, 1918, showing that the car was received at Howells (near Atlanta) at 2:50 a. m., Sunday, May 12th, and that it was placed at Spring street (Atlanta) at 3 a. m., May 15th, and was delivered by Morrow Transfer Company on May 17th.” The plaintiff showed also that the cakes when delivered at Norfolk were in good condition, but that when they were delivered to him in Atlanta they “ were moldy and were not fit for human consumption,” and were sold for hog feed. The defendant sought to show that the delay was caused “ by an accident to another freight train,” and “on account of all available power being used to handle troops,” and the consequent congestion of freight resulting from these causes. After excluding certain evidence, the court directed a verdict for the plaintiff. To these rulings the defendant excepted.</p>

<p>Without first obtaining leave from the court which appointed them, suit can not be brought against the receivers of a railroad company to recover damages arising from personal injuries to one not an employee of the receivers, and caused by the operation of the railroad by the receivers.</p>

<p>1. It was not error to overrule the demurrer to the accusation.</p> <p>2. An allegation as to admission of specified testimony, not verified by the answer to the writ of certiorari, cannot be considered.</p> <p>3. An assignment of error not argued in the brief of counsel for the plaintiff in error is treated as abandoned.</p> <p>4. Under the evidence demanding a conviction under the Penal Code, § 703, on which the accusation was based, and under the court’s specific instructions to the jury, the error at the beginning of the charge, of inadvertently reading P. C. § 719, and stating that the accused was being tried thereunder, was harmless. Luke, J., dissents.</p> <p>5. Where the court charged the jury substantially as to the elements of the offense in question, if the precise words of the statute were desired for instruction, a timely written request therefor should have been presented.</p> <p>6. The certiorari was properly overruled.</p>

<p>Complaint; from Fannin superior court — Judge Blair. May 24, 1920. See 151 Ga. 573 (107 S. E. 860).</p> <p>Application for certiorari was denied by tbe Supreme Court.</p>

<p>Motion to set aside judgment; from city court of Nashville — Judge W. E. Smith. April 24, 1920. Sec 151 Ga. 624 (107 S. E. 866).</p>

<p>Action for breach of contract; from Gordon superior court — - Judge Tarver. August 3, 1920.</p> <p>The Southern Wood Preserving Company sued E. E. Strain for breach of an alleged contract to furnish certain lumber to the plaintiff, which contract, the petition alleges, “is in the form of a written order placed by ” said company with said Strain and accepted by him in writing. The writing constituting the alleged contract is as follows: “Southern Wood Preserving Company, Creosoting and Wood Block Paving. Order. Atlanta, Ga., 10-1-17. Placed with E. E. Strain, Hill City, Ga. Please furnish us the -following material at prices stated below per M., f. o. b. ears Tunnel Hill, Ga., or other places equal or less frt. rate. Ship to Atlanta, Ga. Delivery start at once — complete sixty days. 10 cars [described], $16.50. Accepted 10/1/17. [Signed] E. E. Strain, J. N. Jones.”</p> <p>The petition alleges: “(5) Hnder said contract, said defendant, E. E. Strain, was to furnish petitioner ten carloads of lumber, which amount to 100,000 feet, of the kind and quality stated in Exhibit A, at the price of $16.50 per M. board feet. (6) Said defendant furnished to petitioner, on said order and acceptance thereof, only 7785 feet, leaving a balance due on the order of 92,215 feet of lumber. (7) Said defendant failed and refused to furnish said balance of 92,215 feet of lumber, and has breached and violated his said contract by such failure, and has continued to fail to comply with said contract although repeatedly requested by petitioner to comply therewith. (8) By reason of said defendant’s failure to furnish said balance of 92,215 feet of lumber, petitioner was forced to purchase other lumber to take the place of lumber which defendant agreed to furnish petitioner. (9) In rebuying said lumber, which was made necessary by failure of said defendant to fill his said contract, petitioner was forced to buy 92,215 feet of lumber at an advance of $8.50 per. M. board feet; said 92,215 feet of lumber costing petitioner S783.83 over and above the purchase-price from defendant, which is the actual loss sustained by petitioner by reason of defendant’s breach of and failure to carry out the terms of said contract and to furnish said lumber. (10) By reason of said breach and failure, petitioner sustained an actual loss and damage of $783.83 principal, on which petitioner is entitled to interest at 7% per annum from December 10th, 1917. (11) Petitioner further shows that defendant knew that petitioner was engaged in the manufacture of lumber in various forms and kinds of material for sale for use in the commercial and industrial world, and knew said lumber was purchased by petitioner for such use and for such purpose. (12) When defendant failed and refused to perform his said contract with petitioner and failed and refused to deliver balance of said lumber, petitioner was thereby compelled to buy other lumber to take its place, and to fill orders which petitioner had accepted for material, which orders could only be filled by petitioner by rebuying lumber, which defendant had failed to deliver. Petitioner did so buy, using all diligence in the purchase thereof. (13) Said sum of $783.83, herein sued for, represents and is the difference between the contract price at which defendant agreed to furnish said lumber to petitioner, and the price which petitioner had to pay for the lumber petitioner was forced by defendant’s breach of said contract to buy to take the place of the lumber which defendant had contracted and agreed to furnish, but failed to furnish.” Judgment for $783.83 and interest is prayed for.</p> <p>The demurrer was on the following grounds: “(1) Because under the facts alleged plaintiff is not entitled to recover. (2) Because no cause of action is alleged against defendant in plaintiff’s petition. (3) Because the contract sued upon is unilateral, wanting in mutuality, in that plaintiff does not agree to receive and pay for the lumber when delivered as per the contract. (4) Because the measure of damages under the contract as sued for is not recoverable; the measure of damages under the facts alleged being the difference between the contract price and the market price at the time and place of delivery on thé date of the breach of contract. And the damages sued for cannot be measured by profits of a contract of resale, in the absence of an allegation that the seller, that is the defendant, at the time of making the contract of sale had notice of such contract of' resale; that is, that plaintiff had purchased the lumber for the purpose of filling contracts made on the date of the making of the contract sued upon. (5) Because, under the facts as alleged, plaintiff was not authorized to go into the market and buy lumber and charge defendant with the price thereof, in the absence of an allegation that defendant knew, at the time of making of the alleged contract, that plaintiff had sold the lumber, the prices for which plaintiff had sold it, and to whom plaintiff had sold it, and the profit plaintiff would realize by the sale of the lumber. In the absence of such allegations the measure of plaintiff’s damages would be the difference in the contract price and the market price at the time and place of delivery when the contract was breached. (6) Defendant demurs specially to paragraph seven of plaintiff’s petition, because the date defendant is alleged to have failed and refused to furnish the balance of said lumber is not alleged; nor is the date alleged that plaintiff requested defendant to comply therewith; the allegations of this paragraph being mere conclusions. The facts with reference to what is attempted to be alleged should be given. (7) Defendant demurs specially to paragraph eight of plaintiff’s petition, because 'what is therein attempted to be alleged is a mere conclusion. (8) Defendant demurs specially to paragraph nine of plaintiff’s petition, because it is not alleged from whom plaintiff purchased said lumber, the time it was purchased; and because the facts as alleged incorrectly state the measure of damages plaintiff can recover, if anything. (9) Defendant demurs specially to paragraph ten of plaintiff’s petition, because what is attempted to be alleged are mere conclusions. The fact's with reference to what is alleged should be stated. (10) Defendant demurs specially to paragraph twelve of plaintiff’s petition, because the date when defendant failed and refused to perform the alleged contract is not alleged. The date when defendant failed and refused to deliver the balance of said lumber is not alleged. It is not alleged where and from whom and the date petitioner purchased other lumber to take the place of that alleged to have been purchased from defendant. Nor is it alleged from whom petitioner had taken orders, from whom orders had been accepted, the date of such orders, the amounts thereof. Nor is it alleged why plaintiff could not fill said orders without rebuying lumber. The facts attempted to be alleged in this paragraph being mere conclusions. (11) Defendant demurs specially to paragraph thirteen of plaintiff’s petition, because what is alleged therein are mere conclusions. It is not alleged in this paragraph, or elsewhere in the petition, from whom petitioner bought said alleged lumber, the date it was bought, the amount bought from each party, if there was more than one. The facts with reference thereto should be definitely and specifically alleged, so as to put the defendant upon his defense.”</p>

<p>Certiorari; from Fulton superior court — Judge George L. Bell. October 14, 1920.</p>

<p>Trover; from city court of Carrollton — Judge Beall. Novem-ber 12, 1920.</p>

<p>Lien foreclosure; from city court of Newnan — Judge Post. November 26, 1920.</p>

<p>Claim; from Columbia superior court — Judge H. C. Hammond. June 12, 1920. See 151 Ga. 53 (105 S. E. 641).</p>

<p>Complaint; from Troup superior court — Judge Terrell. December 10, 1920.</p>

<p>Mortgage foreclosure; from City court of Sandersville — Judge Goodwin. March 4, 1921.</p> <p>Cornett & Company sold to Newsome a pair of mules, to which they retained title by a conditional bill of sale of the mules. As additional security, in the same instrument Cornett & Company took from Newsome a mortgage covering another pair of mules belonging to Newsome. This instrument was in the usual form, and, as to the two mules sold to Newsome, gave to the seller, upon default in payment, no option to retake without legal process the two mules in question. As to the mortgage oh the other two mules, the right to retake by the seller upon default was given in the instrument. Newsome failed to pay part of the purchase-price of the two mules on maturity of the obligation in question, and, in the absence of Newsome from home and without legal process, Cornett & Company sent to Newsome's farm and took possession of these two mules, and they subsequently sold the mules for their own benefit, giving to Newsome no credit on the instrument for the amount of the purchase-price. . Subsequently Cornett & Company foreclosed the instrument in question as a mortgage, alleging that the entire amount of the principal and interest was due, and the mortgage fi.' fa. was levied upon the two mules belonging to Newsome and covered by the mortgage. To the affidavit of foreclosure Newsome filed a counter-affidavit, denying any indebtedness and setting up a rescission of the contract by reason of the retaking and selling by Cornett & Company of the two mules to which title had been retained. On the trial Cornett & Company admitted the retaking and contended that it was with the consent of Newsome and under an express agreement. This was denied by Newsome, who alleged that the retaking was without his consent and without his knowledge, and he asserted that the plaintiffs sent to his home and took the mules without lawful authority and disposed of them without his con-sent, and that he had. protested against the unlawful retaking. The trial court submitted to the jury the question of rescission, and the jury found in favor of the defendant; the plaintiffs’ motion for a new trial was overruled, and the case is before this court on exceptions to that judgment. In the motion for a new trial error is assigned upon an extract from the charge of the court, the movant complaining generally that this excerpt was not sufficient to furnish any “ comprehensive idea ” of the issues as submitted to the jury by the court. The charge as a whole is not a part of the record in the case. The plaintiffs filed also a demurrer to the defendant’s counter-affidavit to the foreclosure proceeding, the demurrer was overruled, and exceptions pendente lite to this ruling were allowed and ordered filed as a part of the record, but in the main bill of exceptions no assignment of error was made as to this judgment, and no assignment of error on the exceptions pendente lite was made in this court.</p>

<p>A minor son, while driving an automobile belonging to his father, collided with and damaged the automobile of the plaintiff. . The evidence presented an issue for the jury, as to whether at the time of the accident the son was acting, expressly or by implication, for his father and within the scope of his father’s business. The judgment of nonsuit was erroneous.</p>

<p>Certiorari; from Bibb superior court — Judge Mathews. January 22, 1921.</p>

<p>Claim; from city court of LaGrauge — Judge Duke Davis. March 8, 1921.</p>

<p>Complaint; from city court of Carrollton — -Judge Hood. April 1, 1921.</p> <p>Suits against Maxwell were, separately brought by ZeiglerFrankel Manufacturing Company, All Star Manufacturing Company, Trotty Trunk and Bag Company, Queen Costume Company, Greenbaum & Sons, Wilson & Company, and Eleanor Dress Company. Demurrer to the defendant’s answer in.each case was sustained, and he excepted. There was no exception to a final judgment.</p>

<p>Complaint; from city court of Sylvania — Judge Evans. April 11, 1921.</p>

<p>Trover; from Stewart superior court — Judge Littlejohn. April 22, 1921.</p>

<p>1. Under sections 2718 and 2719 of the Civil Code (1910) it is not only the right, but the express duty, of street-railroad conductors to assign all passengers to seats in the cars in which they are riding, “ so as to separate the white and colored races as much as practicable.” To effectuate these provisions of law designed for the benefit and protection of both races, so as to preclude the possibility of racial contact and fric tion, conductors are invested with ample police powers. Under section 2719 it is a misdemeanor for any passenger, white or colored, to remain in any seat “ other than that to which he may have been assigned.” A reasonable construction of this power of a conductor includes not only the right to thus assign a seat at the time a passenger enters the ear, but the right to make such necessary reassignments as the exigencies of the traffic may require. For a violation by a passenger of the penal provisions of this statute, not only may he be ejected from the car, but he is subject to summary arrest by the conductor, without warrant. Civil Code, § 2719. Furthermore, under the general police powers vested in railroad and street-railroad conductors by sections 926 and 927 of the Penal Code, any passenger may oe ejected or summarily arrested, by the conductor for the violation within his presence of the penal provisions of this statute, or of any other penal statute or valid municipal ordinance, or for words or acts amounting to a breach of the peace.</p> <p>2. In a suit for false imprisonment a plea of justification, while not admitting all the facts as alleged by the petition, does admit the act of detention. (Smith v. Savannah Electric Co., 25 Ga. App. 59, 102 S. E. 549; Rigden v. Jordan, 81 Ga. 668, 7 S. E. 857; Civil Code (1910), § 4488); and where the arrest is made for a misdemeanor without a warrant, in order for the defendant to overcome the prima facie case thus made to arise it is incumbent upon him to plead and to prove that a criminal offense was committed by the plaintiff in the presence of the defendant or his agent making the arrest. Civil Code, § 4488; Ratteree v. Chapman, 79 Ga. 574, 579 (4 S. E. 684); Kerwich v. Steelman, 44 Ga. 198; McPherson v. Chandler, 137 Ga. 129, 130 (3) (72 S. E. 948); Ocean Steamship Co. v. Williams, 69 Ga. 251, 258, 5 C. J. 405.</p> <p>3. “ However loose and informal the plea of justification may be, when it is not demurred to, but is considered by the parties and the court as a sufficient plea of that character, and a trial is had under it, defects in it are not to be scrutinized after the trial is over; indeed it has been held that where the parties treat it as sufficient, the trial court should do so likewise.” Henderson v. Fox, 83 Ga. 233 (3), 242 (9 S. E. 839), citing Bryan v. Gurr, 27 Ga. 378.</p> <p>4. The infringement by a street-railway passenger of the provisions of some special rule or regulation of the State railroad commission, providing specifically and in detail the manner and method whereby the separation of the races is to be effected, but which rule neither does nor can (see Southern Ry. Co. v. Melton, 133 Ga. 277, 291, 65 S. E. 665; U. S. v. Keitel, 157 Fed. 396; U. S. v. Sandefuhr, 145 Fed. 49, 51) impose a penalty upon the passenger for its violation, while authorizing expulsion, does not authorize his arrest, in the absence of disorderly conduct. Thus, the rule of the State railroad commission, introduced in evidence by the defendant and given in charge by the court, providing “that the Savannah Electric Company, in seating passengers on all of its cars, shall seat white passengers from the front of the car towards the rear, and colored passengers from the rear of the car towards the front, and that conductors shall be required to enforce this rule strictly by requiring colored passengers, beginning with the first seat in the rear, to occupy such seat to its capacity before taking the next seat in front, and so on,” while having the full effect of a valid and binding civil statute (Union Dry Goods Co. v. Ga. Public Service Cor., 142 Ga. 841 (83 S E. 946, L. R. A. 1916E, 358) ; Civil Code, § 2663), and while under the statute law it might be held to have penal force as against the common carrier, its officers, agents, or employees (Civil Code §§ 2668, 2666, 2667), does not nor does it purport to provide a penalty for its violation by a passenger; and consequently the infringement of such a rule by a passenger, unless, as here, it amounts also to a violation of the statute, would not, in the absence of disorderly conduct, authorize his arrest.</p> <p>5. The plaintiff, in her petition against the street-railway company, set forth certain municipal ordinances of the City of Savannah which she alleged had been violated by the defendant, and which in effect provide for the furnishing of separate accommodations for white and colored street-railway passengers, by providing either separate cars or dividing the same car into separate divisions, each marked and designated by a described sign or placard so as to indicate for which race such part of the ear is maintained. These ordinances further provide that any conductor or other official operating a street-car not so provided with indicating signs shall be guilty of a criminal offense, and that any person “ wilfully occupying as a passenger ” any part of a car- other than that so set apart and designated for persons of his or her color shall on conviction be punished as for disorderly conduct. On the trial the ordinances were not formally introduced in evidence, and the defendant company excepts to the charge of the court relative thereto, (1) because the ordinances, for the reason that they were not formally tendered in evidence, were not properly before the court at all; (2) be- ' cause the court erred in instructing the jury that “ if there is a conflict between the State law and the city ordinances, then the State law takes preference,” the contention being that any question of such a conflict was purely a question of law for determination by the court; and (3) because the court charged in reference to the ordinances as follows: “ I want you to bear in mind, however, that if you find in this case that this plaintiff was not occupying a seat reserved under the city ordinance for white passengers, and where under the law she had a right to be, then she had a right to decline to move therefrom, and there would be no right on the part of the conductor to arrest her or expel her from the car.” Held-.</p> <p>(а) While, in the absence of proof, the court cannot ordinarily take judicial cognizance of municipal ordinances (Collier v. Schoenberg, 26 Ga. App. 496, 106 S. E. 581), yet where, as here, the ordinances have been pleaded in the petition, and the trial court has certified that “ while the ordinances pleaded were not formally tendered in evidence, they were read to the court in the presence of the jury,” such treatment of them' by counsel without objection will be taken as equivalent to a formal tender. Ga. Excelsior Co. v. Hartfelder-Garbutt Co.. 12 Ga. App. 797 (78 S. E. 611).</p> <p>(б) Any question as to the validity of a municipal ordinance and whether or not it conflicts with a State statute is properly a question of law to. be determined by the court. As we construe these ordinances, they do in a sense conflict with the plan and method of procedure outlined ■by the rule of the railroad commission; and since the commission has jurisdiction, of the subject-matter, its order has superior and binding force and effect as a civil rule, to the exclusion of the municipal ordinance which attempts to legislate otherwise. Consequently, while it is true that the court charged the jury that even a violation by the defendant company of any obligation sought to be imposed upon it by the ordinances would not justify the plaintiff in transgressing the statute laio, still it seems reasonably possible, if not probable, that the excerpts from the charge quoted relating to the ordinances might have'been confusing to the jury, on the theory that, since the plaintiff was undoubtedly occupying tbe rear portion of tbe car (either the second or third seat from the rear), she was therefore within her legal rights under the ordinances in so remaining, despite the direction of the conductor acting under the duty and authority of the statute law that she exchange her seat so as to occupy one further back.</p> <p>6. The character of the person seeking damages for false imprisonment is not ordinarily in issue, so far as the mere right to recover is concerned: but where the petition alleges good character, which allegation is denied by the answer, evidence in support of good character becomes relevant in the consideration of the amount of damages. Fire Asso. of Philadelphia v. Fleming, 78 Ga. 733 (2) (3 S. E. 420); 19 Cyc. 365.</p> <p>7. Under the statute law set forth in the first division of the syllabus, and under the undisputed evidence in the case, the conductor was acting within the reasonable scope of his rights, duty, and authority in directing the plaintiff to exchange her seat for another located behind her, the purpose being in this way to “separate the white and colored races as much as practicable;” and since, under such circumstances, the statute makes it a misdemeanor for any passenger, white or colored, to remain in any seat “ other than that to which he may have been assigned,” the undisputed refusal of the plaintiff to obey such direction authorized her arrest, and consequently she could not be entitled to damages therefor.</p>

<p>Claim; from Camden superior court — Judge Highsmith. December 14, 1920.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Action for damages; from Fulton superior court — Judge Ellis. December 7, 1920.</p>

<p>Action for damages; from city court of Macon — Judge Guerry. June 28, 1920.</p> <p>Application for certiorari was granted by the Supreme Court.</p>

<p>Action for damages; from Colquitt superior court — Judge Tbomas. July 20, 1920.</p>

<p>Action for damages; from city court of Savannah — Judge Freeman. July 23, 1920.</p>

<p>Action, upon insurance policy; from Chatham superior court — Judge Meldrim. September 8, 1930.</p>

<p>Action for breach of contract; from Baldwin superior court — Judge Park. November 29, 1920.</p>

<p>Complaint; from city court of Waynesboro — Judge W. H. Davis. October 25, 1930.</p>

<p>Appeal; from Fulton superior court — Judge Pendleton. September 15, 1920.</p>

<p>Action for damages; from Habersham superior court — Judge J. B. Jones. November 22, 1920.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

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

<p>Complaint; from city court of Zebulon — Judge Dupree. July 9, 1920.</p>

<p>Action for damages; from Newton superior court — Judge Searcy. July 17, 1920.</p>

<p>Action for damages; from city court of Americus — Judge Harper. July 27, 1920.</p>

<p>Action for damages; from Haralson superior court — Judge Irwin. June 19, 1920.</p>

<p>Action for damages; from Fulton superior court — Judge Ellis. July 22, 1920.</p>

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

<p>Lien foreclosure; from Bibb superior court — Judge Mathews. August 19, 1921.</p>

<p>Appeal; from Richmond superior court — Judge Henry O. Hammond. July 24, 1920.</p>

<p>Action for damages; from Bibb superior court — Judge Mathews. August 18, 1920.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

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

<p>Certiorari; from Fulton, superior court — Judge George L. Bell. October 37, 1930.-</p>

<p>Trover; from city court of Macon- — Judge Gunn. November 10, 1930.</p>

<p>Appeal; from Fannin superior court — Judge Blair. October 19, 1920.</p>

<p>Lien foreclosure; from Bibb Superior court — Judge Malcolm D. Jones. December 11, 1920.</p>

<p>Complaint; from Troup superior court — Judge Humphries presiding. November 20, 1920.</p>

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

<p>Lien foreclosure; from city court of Swainsboro — Judge Kirkland. November 22, 1920.</p>

<p>Complaint; from city court of Camilla — Judge BurSon. July 3, 1920.</p>

<p>Complaint; from city court of Jesup — Judge Clark. August 27, 1920.</p>

<p>Mortgage foreclosure; from city court of Waynesboro — Judge W. H. Davis. October 28, 1920.</p>

Action on bond; from city court of Bainbridge — Judge Spooner. January 11, 1931. On September 14, 1907, the plaintiff in error obtained judgment against Sam and Will Donalson as principals, and W. E. Griffin as indorser. Execution was issued and was entered on the general execution docket on September 17, 1907.

<p>Action for damages; from Chatham superior court — Judge Meldrim. November 24, 1920.</p> <p>Application for certiorari was granted by the Supreme Court.</p> <p>The action was for damages on account of injuries to a workman at the plant of the shipbuilding company. The petition alleges: On July 14, 1920, the defendant was constructing at its plant a large iron vessel known as No, 1395, and the plaintiff was in the defendant’s employ, working in the lower forehold of the vessel, engaged in constructing a tank. He had occasion to leave the forehold and proceed to the anglesmith shop of the defendant for the purpose of obtaining a staple for use in building the tank, and had to climb scaffolding through hatchways in two decks to get to the main deck. The forecastle deck is about eight feet above the main deck and in the front part of it. Through the forecastle deck and directly above the hatchway in the main deck through which the plaintiff had climbed was a circular or oval hole about 28 inches in diameter, known as the hawse-pipe hole. There was standing on the forecastle deck and within two or three feet of the hawse-pipe hole a portable forge which was being used for heating rivets to red-hot temperature, and the rivets were being passed through the hawse-pipe hole to be used by workmen of the defendant on the main deck. The ^portable forge was constructed in three parts and supported on three legs; the said parts being the three legs, a shallow basin connected by braces, and a heavy iron ring of about 20 inches in diameter, 8 inches in depth, and about three quarters of an inch in thickness, the said basin being mounted on the said legs but not fastened to them, and the ring being mounted on the basin but not fastened to it. The ring added to the depth of the basin, and the basin and the ring were full or partly full of burning coal and rivets being heated to redness. Paragraph 6 alleges: In some manner unknown to plaintiff the portable forge described was upset, and the heavy iron ring, glowing coals, and hot rivets were precipitated through the hawse-pipe hole upon him as he stepped upon the main deck below, the said ring striking him upon the head, rendering him unconscious, and causing injuries described. It is further alleged: The defendant knew that the portable forge had been located in the position where it was immediately before the plaintiff was injured for several days before the day mentioned above. The proximate cause of his injuries , . was due to the negligence and carelessness of said defendant company in permitting said portable forge to be in the position in which it was at the time that it was upset and . . petitioner injured as hereinbefore set out, there being no necessity for its being placed so near to said hawse-pipe hole, andi to the neglect and carelessness of said defendant company, in failing to notify or warn . . petitioner that said forge was located where it was at the time that it was upset, said defendant well knowing that . . petitioner would necessarily, in the scope of his employment, be many times during the day immediately under said hawse-pipe hole and liable to be injured should said forge or part thereof fall through said hawse-pipe hole.” Petitioner did not know that the forge was in the position where it was at the time he was injured, and in the exercise of ordinary care could not have known.</p> <p>The demurrer was on the grounds: (1) No cause of action is set out. (2) The allegations of paragraph 6, as to the manner in which the forge was upset, are too vague and indefinite. (3) It is not shown what caused the forge to become upset and fall on the plaintiff. (4) There are no facts alleged that show that negligence of the defendant was the proximate cause of the injury.</p>

<p>Action for damages; from Grady superior court — Judge Wilson. December 31, 1920.</p>

<p>Certiorari; from Chatham superior court — Judge Meldrim. November 29, 1920.'</p>

<p>Complaint; from city court of Miller county — Judge Geer. January 10, 1921.</p> <p>J. W. McMullin and C. M. Lewis executed to Blakely Mule Company three promissory notes. After certain payments had been made in cash on one of the notes the company gave notice of intent to sue upon the notes and for attorney’s fees provided for therein, and suit was accordingly brought. By amendment all reference to one of the notes was stricken from the petition; and the petition was further amended “ by adding an additional paragraph, immediately following paragraph 6, to be known as paragraph 7 as follows: ‘ that a credit on the indebtedness evidenced by the two above-described notes of $275.00 is hereby admitted, the same being of date January 1st, 1915, the said credit arising from the sale by plaintiff of four mules for the account of the defendants, said sale being at auction to the highest bidder and being had by direction of said defendants.’ ” Separate pleas were filed, in each of which the defendants admitted that they signed the notes sued on and 'that the plaintiff was the holder and owner thereof, but denied that the sale of the muLes at auction was made by their consent as stated in the amendment to the petition, and alleged that the mules were sold without notice to them, and were bid in by the plaintiff for $275, and that at the time of the sale the mules were “ reasonably worth on the market $590.00, and that defendant is entitled to a credit of $590.00 on said notes for said four mules which he returned.” A verdict was rendered against both defendants for $132.90 as principal, $56.60 as interest, and $13.20 as attorney’s fees. The plaintiff made a motion for a new trial, which was overruled, and it excepted.</p>

<p>Complaint; from city court of Eastman — Judge Franklin. January 10, 1921.</p>

<p>The grounds of the motion for a new trial as to the admissibility of evidence are not in proper form for consideration.</p> <p>The verdict was supported by evidence.</p>

<p>1. Where, in a suit against two or more defendants, the verdict and judgment are adverse to the defendants, and one of them makes a motion for a new trial, which is overruled, the movant can except to the judgment overruling his motion, and bring the case to the Supreme Court without making any of the other defendants a party to the bill of exceptions; and a failure to do so will not work a dismissal of the writ of error.</p> <p>2. The court did not err in any of its rulings on the pleadings, complained of in the exceptions pendente lite.</p> <p>3. None of the grounds of the motion for a new trial point out any error which would require a reversal of the judgment of the court below.</p>

<p>Action for ’damages; from city court of Swainsboro— Judge Kirkland. March 3, 1921.</p> <p>The petition as amended alleges: that the plaintiff, in April, 1918, at night and at his home, bought from defendant a new automobile; that “ the trade between plaintiff and defendant was fully executed at the time the trade was made;” that “ (3) defendant, after making said sale, told your petitioner that he would deliver the car on the following morning, as he would have to use same to return home that night. (4) On the following morning defendant delivered to your petitioner a car of the same make and size, but a different car altogether from the one petitioner had bought. The car delivered was an old car polished over. It was a car that had been much used, and was badly worn and almost useless to your petitioner. (5) Petitioner is old, and inexperienced in automobiles, and did not detect that a substitution of cars had been made by defendant until a few days after said car had been delivered to Mm. He discovered this by parts of the automobile giving way, and upon examination found that the automobile was worn out, and that it would not give service without expensive repairs being made. (6) &s soon as petitioner discovered that a substitution had been made as aforesaid, he called to see defendant and insisted that he take the car back, but defendant refused to do so. (7) Petitioner avers that the expense of repairs and the purchase-price of new parts necessary to.put said car in running condition have been of greater value than the value of the service lie has received from said automobile, and that he has, therefore, been damaged in the full amount of the purchase-price paid for said car, to wit, $1,550, for which amount plaintiff sues.” The petition was dismissed on oral motion, and the plaintiff excepted.</p>

<p>Appeal; from Bryan superior court — Judge Sheppard. February 16, 1921.</p>

<p>Complaint; from city court of Soperton — Judge Wallace. March 12, 1921.</p>

<p>Action on contract; from city court of Savannah — Judge Freeman. March 14, 1921.</p> <p>Application for certiorari was denied by the Supreme Court.</p> <p>It was contended, in the assignments.of error, that, “the request of plaintiff in error, that defendant in error hold up shipment of the two cars until ordered out by plaintiff in error, having been agreed to by defendant in error, there was a novation of the original contract as to delivery dates and a substitution making the contract one for delivery on demand of buyer; and, it appearing from the petition that'the buyer had not requested shipment, no cause of action was set forth ;” and that “ if the request for delay in shipment, referred to above,, did not amount to a novation and substitution, then the legal effect was not to extend the time for delivery beyond August 1, 1919, and, the defendant in error not having tendered delivery by that date, plaintiff in error thereby became released from the contract and absolved from any liability thereunder;” and further, that, “ it appearing from the petition that ice-cream cones are a seasonal product and that the season begins in April and ends August 1, the request by plaintiff in error to defer shipment must be construed, in the light of this fact, as deferring the shipment to some period between June 9, 1919 (that being the date when the defendant in error notified plaintiff in error that it was ready to ship the remaining two cars), and the date of August 1, 1919, which was the ultimate date of delivery fixed by the contract, and that defendant in error was not authorized to extend the contract over into the next season without the consent of plaintiff in error, and, the petition showing on its face that defendant in error made no proffer of delivery until in May, 1920, the contract expired by operation of 'law;” also that “ if there was any breach by plaintiff in error of the contract sued on, that breach occurred August 1, 1919, and the measure of damages would be the difference between the contract price or value of August 1, 1919, and not, as alleged in the petition, of August 11, 1920;” and that the allegation that the defendant in error held the two cars ready for shipment on demand of the plaintiff in error shows that “ defendant in error elected to store the property for account of plaintiff in error; and hence its • cause of action, if any, is a suit for the contract price, and not one for damages for breach of contract.”</p>

<p>Complaint; from Bibb superior court — Judge Malcolm D. Jones. April 1, 1921.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

Action for damages; from city court of Oglethorpe- — -Judge Greer. March 22, 1921. Because of having been carried beyond the station at her destination by a railroad-train upon which she was a passenger, Mrs. Meadows sued the Federal director-general of railroads for damages. She obtained a verdict for $350. The case came to the Court of Appeals on the defendant’s exceptions to the overruling of a demurrer to the petition, and of a motion for a new trial.

<p>1. Under tlie ruling in Bonner v. Standard Oil Go,, 22 Ga. App. 332 (96 S. E. 573), the petition in this case set out a cause of action, and the court properly overruled the demurrer.</p> <p>2. The evidence authorized the verdict.</p>

<p>Commissions on the sale by the defendant were recoverable by the plaintiff, under the allegations of the petition, from which it appeared that the defendant agreed to turn over to the plaintiff the control and management of a certain wood-yard until all.the wood and lumber in the yard should be disposed of, and that in consideration of his services the plaintiff should receive 15 per cent, of the gross proceeds of wood and lumber “ sold in any form ” from the yard as long as he devoted his time to the yard; that under the terms of the contract the plaintiff immediately “ took over the active management ” of the yard, and “ fully performed all services as required ” by the contract, and that a few days after the plaintiff took charge of the yard tile defendant sold all the wood and lumber in it to a third person for a stated sum.</p> <p>Although the agreement was signed only by the defendant, it was divested of its unilateral character and rendered mutual by the action of the plaintiff in taking over the management of the yard and performing the services required by the contract.</p>

<p>Complaint; from Bryan superior court — Judge Sheppard. April 11, 1921.</p>

<p>Petition to distribute money; from Dade superior court- — ■ Judge Tarver. April 2, 1921.</p> <p>After paying all insolvent costs due officers of court for the year 1920, there was left a balance of $1,406.60 in the fines and forfeitures fund of Dade county. . A petition was brought for the distribution of this sum, the parties interested therein being L. S. Lyemance, clerk of the superior court; W. Ii. Cross, former sheriff; W. N. Tatum, former sheriff; S. J. Hale, former clerk; Lonnie Smith, executor of estate of Martin G. Smith, deceased, former clerk. The case was submitted to the trial judge upon the following agreed statement of facts: “ It is admitted that L. S. Lyemance, clerk of the superior court of Dade county, has in his hand's the sum of $1,406.60, belonging to the fine and forfeiture fund of said county, having accrued in the year 1920. it is further admitted that the minutes of the court show that Joe M. Lang, solicitor-general, for the use of Dade county, has still unpaid as insolvent costs, for the term 1917 to 1920 inclusive, the sum of $122.4-3; that L. S. Lyemance, clerk, for the same term, lias due Mm the sum of $102.70, and that W. H. Cross, sheriff, for same term, has due Mm $11.1.09. It is further admitted that L. S. Lyemance lias issued subpoenas for witness to come before the grand jury during the term 1917-20 to the number of 513, and that there are four no bills returned by the grand jury for which said Lyemance now claims judgment. It is further admitted that L. S. Lyemance, as for former clerk, has due him for the term 1915-1916 inclusive, the sum of $29.55 for grand-jury subpoenas which has not been included in any judgment for insolvent costs, for which sum he is now claiming a judgment. It is further admitted that L. S. Lyemance, former clerk, has due him, according to the minutes of the court, as insolvent costs for the term 1915-1916, the sum of $215.16, for which judgment has been taken. That W. N. Tatuih, former sheriff, has due him for the term 1915-1916, according to the minutes of the court, as insolvent costs, the sum of $302.04, for which judgment has been taken. That Joe M. Lang, former solicitor-general (now for the use of Dade county), has due him for the term 1915-1916, as shown by the minutes of the court, as insolvent costs, the sum of $836.85, for which judgment has been taken. That Lonnie Smith, as executor of M. G. Smith, deceased former clerk of superior court, has due him for insolvent costs for term 1913-1914, as shown by the minutes of the court, $142.95, for which judgment has been taken. That W. N. Tatum, former sheriff, has due him for the term 1913-1914, as insolvent costs, as shown by the minutes of the court, the sum of $24.37, for which judgment has been taken. That the former solicitor-general, for the use of Dade count}', for the term 1913-1914, has due as insolvent costs as shown by the minutes of the court, the sum of $268.50, for which judgment has been taken. That S. J. Hale, former clerk, has clue him for the terms covering 1903 to 1913 inclusive, for which judgment has been taken in 1912, as shown by the minutes of the court, as insolvent costs, the sum of $724.89. That W. N. Tatum, former sheriff, has due him for term 1911-12 as insolvent costs, for which judgment has been taken, as shown by the minutes of the court, the sum of $215.08. That the solicitor-general for the use of Dade county has due him for terms covering 1903 to 1912 inclusive, for which judgment has been taken in 1912, as shown by the minutes of the court, as insolvent costs, the sum of $720.18. It is agreed that there has been no lack of diligence of either or any of the above claimants; and that nothing has been left undone towards the collection of said judgments, or keeping them alive, that could. have been done. It is further agreed by all parties that all technical pleadings are waived, and that the court shall pass upon the legal priorities of above claims and award the funds to the claimants legally entitled to the same, irrespective to any technicalities or lack of proper pleadings.”</p> <p>The judgment of the court decreed that the fund in question be disbursed and paid among the claimants as follows: “ L. S. Lyemance, clerk, W. IT. Cross, sheriff, and Joe M. Lang, solicitor-general, for the use of Dade county, in full for all costs accruing during the term 1917 to 1920 inclusive, as set out in the agreed statement of facts, including the° amount claimed by L. S. Lyemance, clerk, for grand-jury subpoenas issued during that period, which amount is declared a charge against the- fine and forfeiture fund and payable therefrom, and judgment for which is hereby given as prayed. . . The balance of said fund be divided between the former officers, the claimants herein, in proportion to the amounts of their claims (allowing to the said L. S. Lyemance, former clerk, the amount due for grand-jury subpoenas during the term 1915-1916, as a charge against the fine and forfeiture fund, to be added to his other insolvent costs and share pro rata) so that the balance of said fund shall be disbursed as follows . . ”</p> <p>This judgment was excepted to on the ground that it was contrary to law.</p>

<p>Authority for the plaintiff’s attorneys to accept in settlement of the suit a sum less than the amount sued for will not be presumed. The evidence in this case does not show such authority, or that the plaintiff ratified the act of its attorneys in accepting the sum received in settlement of the suit; and the court did not err in directing a verdict against the defendant for the amount of the difference between the sum sued for and the sum so received.</p>

<p>Certiorari; from Fulton superior court — Judge Bell. March 24, 1921.</p>

<p>Trover; from city court of Amerieus — Judge Harper. May 11, 1921.</p>

<p>Rule; from Eloy cl superior court — Judge Wright. May 21, 1921.</p>

<p>Complaint; from Wheeler superior court — Judge E. D. Graham. December 24, 1921.</p>

<p>Action for damages; from city court of Macon — Judge Gunn. March 11, 1921.</p>

<p>Certiorari; from -Fulton superior court — Judge Pendleton December 8, 1930.</p> <p>The main defense of the owner to the foreclosure suit was that the written contract executed by the plaintiff’s employer, the contractor, and herself had never been completed. The amount of the lien claimed was $65. The agreed price for the work to be done on the floors of the owner was $115, and the contract provided that this work was “ to be done in a first-class workmanship maimer,” that certain fillers, varnish, and floor polish were to be used, that the owner should not be liable for labor or material furnished on the work to any one whomsoever, but that when the contract was completed by the contractor, the work accepted by the owner, and affidavits and receipts showing the payment for all labor and material should be submitted by the contractor to the owner, the contract price would become due- The evidence showed that the plaintiff was employed and earned his wages by the hour, bnt was not a party to the owner’s contract with his employer, and had no knowledge of its conditions until after completion of his work. Under the contractor’s evidence, the contract had been fully performed, but, under the owner’s evidence, this was a disputed issue of fact. There was also evidence that the plaintiff had properly and fully performed his own particular duties. There was no proof that the owner had any one else perform work not done by the contractor. The trial resulted in a judgment in favor of the plaintiff. A new trial was refused by the judge of the municipal cornet of Atlanta who tried the case, certiorari was sued out, and the certiorari was overruled by the judge of the superior court.</p>

<p>Action on insurance policy; from Jasper superior court — Judge Park. December 6, 1920.</p>

<p>Trover; from city court of LaGrange — Judge Duke Davis. December 8, 1920.</p>

<p>A careful examination of the record in this case discloses no error of law. The judge’s charge, when considered as a whole, fully eliminates any apparent merit in any exception thereto; and, while the evidence on the issues of fact is in conflict, there is ample evidence to support the verdict.</p>

<p>1. The words, “goods, wares, and merchandise,” as used in the “bulk-sales act” (Civil Code of 1910, §§ 3226 et seq.), are not to be taken in such a restricted sense as to exclude the usual and customary fixtures or accessories used in connection with the business to which they are appropriate, whenever their transfer is included in an absolute sale in bulk, out of the usual course of the business or trade, of the entire, or substantially the entire, stock. Parham v. Potts-Thompson Co., 127 Ga. 303 (7) (56 S. E. 560); Cooney v. Sweat, 133 Ga. 511, 513 (66 S. E. 257, 25 L. R. A. (N. S.) 758); Virginia-Carolina Chemical Co. v. Bouchelle, 12 Ga. App. 661 (1), 662 (78 S. E. 51).</p> <p>2. The bulk-sales law, being in derogation of the common law, must be strictly construed, and a bill of sale made to secure a debt is not such a transfer as comes within the purview of the act. Wright v. Cline, 27 Ga. App. 129 (107 S. E. 593); Avery v. Carter, 18 Ga. App. 527 (89 S. E. 1051). However, the provisions of the law apply to a sale of a stock of goods in bulk by a debtor to a creditor, in total or partial extinguishment of his debt secured by a bill of sale, and such a sale made in disregard of this act is. fraudulent and void as against other creditors of the common debtor. Sampson v. Brandon Grocery Co., 127 Ga. 454 (56 S. E. 488, 9 Ann. Cas. 331).</p> <p>3. In order for a creditor to levy an execution upon property covered by a valid bill of sale made to secure a debt, the creditor must first redeem the property by paying- off in full the security debt, and a levy made without a compliance with such condition precedent is void. Civil Code (1910), §§ 6038, 3306; Smith v. Fourth Nat. Bank, 145 Ga. 741 (2), 743 (89 S. E. 762); Shumate v. McLendon, 120 Ga. 396 (4, 5, 6) (48 S. E. 10); Virginia-Carolina Chemical Co. v. Williams, 146 Ga. 482 (91 S. E. 543).</p> <p>4. Thus, where the owner of a stock of goods, without complying with the provisions of the bulk-sales law, has sought to make an absolute transfer of the goods to the holder of a security bill of sale and for a consideration consisting in part of the extinguishment of the security bill of sale, but where the security bill of sale remains uncanceled of record, another creditor of the seller is not permitted to levy upon the goods in the hands of the transferee, without first discharging the amount due on the valid security bill of sale. Whatever might be the rights of the parties to the attempted transfer in treating it as binding between themselves (see McDowell v. McMurria, 107 Ga. 812, 816, 33 S. E. 709, 73 Am. St. Rep. 155, and note to the case of Escalle v. Mark, 5 A. L. R. 1517), an attachment creditor, as the moving party, having treated the oale as void as to himself, cannot at the same time be heard to insist upon its validity as between the parties thereto. Under the statute, the rights of such a creditor are to be taken precisely as if the attempted transfer had not been made. By virtue of the act he is simply restored to what rights he would otherwise have lost. It is not intended to improve his condition by giving him superior rights. Such an attempted sale is merely a legal fraud (Jaques & Tinsley Co. v. Carstarphen Co., 131 Ga. 1, 16, 62 S. E. 82)) and it is not the purpose of the statute to impose punitive forfeitures of pre-existing valid liens in favor of other creditors. See Flash v. Wilherson, 20 Fed. 257.</p>

<p>1. Whether or not an exception to the overruling of a motion for non-suit, based upon the ground that there was a fatal variance between the allegata and probata, in that the evidence showed that the contract sued upon was made with a partnership rather than with the individual plaintiff, is such an exception as can be considered where testimony for the defendant was introduced, a verdict -rendered against the defendant, and a motion for new trial made which presented the complaint that the verdict was contrary to the evidence and without evidence to support it (as to which see cases cited in Gunn v. Wilson Co., 20 Ga. App. 14, 16, 17, 92 S. E. 721; and see Citizens Bank v. Shaw, 132 Ga. 771 (1), 773, 65 S. E. 81; Glausier v. Boston Naval Stores Co., 132 Ga. 549, 552, 64 S. E. 547; Findley v. Central of Ga. Ry. Co., 7 Ga. App. 180, 66 S. E. 485, and eases cited), it is nevertheless true that, where a motion for nonsuit is overruled, and the defendant thereafter introduces evidence by which the deficiency in the plaintiff’s testimony is cured, the error, if any, in overruling the motion for nonsuit is also cured. Ga. Ry. & Electric Co. v. Reeves, 123 Ga. 697 (7), 703 (51 S. E. 610); Southern Ry. Co. v. Morrison, 8 Ga,. App. 647 (2), 648 (70 S. E. 61); Ala. Construction Co. v. Continental Car Co., 131 Ga. 365, 369 (62 S. E. 160). In the instant case, whatever uncertainty might have existed under the plaintiff’s evidence upon the question as to whether the contract with the defendant was made with the plaintiff alone, as alleged in the petition, or with himself and his brother, was clarified by the defendant’s own testimony that the contract was made and remained solely with the plaintiff.</p> <p>2. It is the general rule that a real-estate broker earns his commissions when, “ during the agency, he finds a purchaser, ready, willing, and able to buy, and who offers to buy on the terms stipulated by the owner” (Civil Code of 1910, § 3587; Smith v. Tatum, 140 Ga. 719, 79 S. E. 775; McMath Plantation Co. v. Allison, 26 Ga. App. 744, 107 S. E. 420). Still the owner may, by the express terms of his agreement with the broker, limit his liability by specifically providing that the commissions shall become earned, due, and payable only as the purchase-price shall be actually paid. Such a provision would not, however, affect the broker’s rights to commissions in a case where, during the agency, he finds a purchaser, ready, able, and willing to buy, and who actually offers to buy on the terms stipulated, but, where the owner himself refuses to consummate the trade. Fenn v. Ware, 100 Ga. 563 (1) (28 S. E. 238); Girardeau v. Gibson, 122 Ga. 313, 314, (50 S. E. 91). In such a case, where the owner, without legal excuse, refuses to effectuate the sale, he becomes liable for the commissions; and after such a refusal it is generally not necessary that the proposed purchaser shall have made to the owner an actual tender of the purchase price. Smith v. Tatum, supra; Winer v. Flournoy Realty Co., 27 Ga. App. 87 (107 S. E. 398).</p> <p>3. “ ‘ The testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him, when it is self-contradictory, vague, or equivocal.’ And unless there be other evidence tending to establish his right to recover, he ‘ is not entitled to a finding in his favor, if that version of his testimony the most unfavorable to him shows that the verdict should be against him.’ ” Steele v. Central of Ga. Ry. Co., 123 Ga. 237 (1) (51 S. E. 438). And see Southern Ry. Co. v. Hobbs, 121 Ga. 428 (1) (49 S. E. 294); City of Thomasville v. Crowell, 22 Ga. App. 383, 384 (1 b) (96 S. E. 335). While the first portion of the defendant’s testimony might be taken as indicating that he had a right to refuse to consummate the contract of sale with the vendee, for the reason that the vendee failed to comply with the agreed terms by making the cash payment required by the agreement procured by the broker and accepted in writing by the owner, yet in another part of his testimony he clearly admits that such was not the case, but states that the vendee offered to make full compliance with such obligation within the time contemplated. Testing the defendant’s evidence by the rule stated, he failed to sustain his defense in justification of his refusal to sell, and the court did not err in directing a verdict for the plaintiff.</p>

<p>Complaint; from Gwinnett superior court — Judge Cobb. January 12, 1921.</p>

<p>Petition for certiorari; from. Pulton superior court — Judge Humphries. January 17, 1921.</p>

<p>Action on contract; from city court of Valdosta — Judge Cranford. February 18, 1921.</p>

<p>Action for damages; from city court of Atlanta — Judge Reid. January 3, 1931.</p>

<p>The building contractor and the surety on his bond, which by its terms was joint and several, were properly joined as parties defendant; and there was no misjoinder of causes of action. The suit, properly construed, was an action for breach of contract, although there were allegations as to wrongful conversion of money intrusted to the contractor under the contract.</p> <p>It was not error to allow the plaintiff (the obligee in the bond) to amend so that the suit, which was brought in his own name alone, should proceed also for the use of a person to whom he had assigned the bond as security for money borrowed to make payments on the building.</p>

<p>Affidavit of illegality; from Walker superior court- — -Judge Wright. March 8, 1921.</p>

<p>Action on bond; from Clayton superior court •— Judge Hutcheson. February 22, 1921.</p>

<p>Action for damages; from Cherokee superior court — Judge Blair. March 2, 1921.</p>

<p>Where a bank, at the request of one of its customers, notifies another bank that it will pay another person’s draft upon him with bill of lading attached, and the bank thus notified, acting solely on the faith of this promise, advances to the drawer the money represented by the draft, the bank making the promise is liable to the other bank as on an original undertaking within the scope of its general business, and its status is not that of a mere surety pledging its credit solely for the benefit of the drawee. In such a transaction the drawee’s promise to protect the draft is not to be taken as made to the drawer, or to the bank making the advance, but as given to his own bank, which, in consideration of credit thus extended by it to its own customer and in furtherance of the agreement made by and between them, has agreed directly and alone to repay the advance to be made by the other bank.</p>

<p>Certiorari; from Murray superior court — Judge Tarver. April 14, 1921.</p>

<p>No error of law appears to have been committed by the trial judge, and the order which he passed in the case, following his findings on the plea in abatement, was demanded by the undisputed evidence.</p>

Complaint; from city court of Savannah — Judge Freeman. April 29, 1921. Patterson sued Mrs. L. McKenzie for $346.50, alleged to be “ the 7-1/2 per cent, commission on the sale of a certain piece of residential property at Thunderbolt, sold for the account of the said defendant to Matthew J. and Catherine Beed for the consideration of the sum of $4,620.” The defendant demurred on the following grounds: No cause of action is set forth.

<p>Certiorari; from Pulton superior court — Judge George L. Bell. April 8, 1921.</p> <p>The Georgian Company sued Jennie Bloom in the municipal court of Atlanta upon an open account for certain advertisements printed in a newspaper published by the company. The defendant filed a counterclaim, alleging that the plaintiff was indebted to the defendant; “that on June 9th, 1920, she being in the ladies’ ready-to-wear business, including the selling of furs, contracted with plaintiff to run an advertisement on that date as follows: ‘ Special in furs. Large animal scarfs, taupe, brown and black, satin lined into brush. For three days only. Special price $15.00/ the said advertisement to be run in plaintiff’s newspaper. Plaintiff, in running said advertisement, did not carry out its contract with defendant and insert the advertisement that she furnished them, but inserted the advertisement as follows: ‘ Special in furs. Large animal scarfs, taupe, brown and black satin lined into long brush. For three da]'s only. Special price $5.00/ The advertisement as inserted made the difference $10.00 less in price than the advertisement which defendant furnished them and contracted with plaintiff to furnish. Defendant, because of said wrongful advertisement, says she was compelled to sell 48 of said scarfs at a loss of $10.00 each; that is, she was compelled to sell them at $5.00 instead of $15.00 to customers and persons who accepted her offer as made in said advertisement. Defendant says that, by reason of said advertisement published by plaintiff, she incurred a loss of $480.00. Plaintiff well knew that the purpose of said advertisement was to sell said scarfs at $15.00, but, instead of putting $15.00 in the advertisement, plaintiff advertised at $5.00 as aforesaid. Wherefore defendant prays judgment against plaintiff for said sum of $480.00.” It was admitted by counsel for the defendant that the account of the newspaper company sued upon was correct, subject, however, to the defendant’s counterclaim. On the trial in the municipal court the judge struck the counterclaim as being invalid, and a verdict and judgment were rendered for the plaintiff for the amount of the account. The defendant carried the case to the superior court by writ of certiorari, and the judge of the superior court, after a hearing thereon, passed an order sustaining the certiorari and ordered a new trial. The case is before this court on exceptions to this order of the judge of the superior court.</p>

<p>A careful examination of the record discloses no error of law, and sets out sufficient evidence to support the verdict.</p>

<p>Action on contract; from city court of Yaldosta — Judge Crawley presiding. April 14, 1921.</p> <p>On April 13, 1920, the defendant placed with the plaintiff two orders for goods, upon terms and conditions expressed in the orders. These orders were wired to the plaintiff by its salesman, with instructions to wire acceptance at once. The orders were that a stated portion of the goods should be shipped to the defendant by the plaintiff on September 1, 1920. The plaintiff’s wired acceptance misinterpreted the time of shipment to be immediate. This misinterpretation was caused by no fault or fraud on the part of the defendant, but apparently by a negligent reading of the telegram of the plaintiff’s own agent conveying to it the order of the defendant. This misinterpretation induced the defendant to believe that its orders as to the goods to be shipped the first of September were rejected by the plaintiff, who attempted a counter-proposition in the acceptance of the orders. This counter-proposition was not accepted by the defendant. On the contrary, in a letter written to the plaintiff the defendant expressed a willingness to take the goods if shipped immediately, and asked for some definite statement as to whether or not they would be shipped promptly, and stated that in view of the misinterpretation of their original orders they had made other arrangements for fall goods. In reply the plaintiff wrote a letter, attempting to accept the original offer. There was no reply to this letter. Nevertheless, the plaintiff, on or about September 1, shipped to the defendant the goods ordered to be shipped on that date. They were rejected, and the plaintiff, relying upon the remedy provided in the last part of § 4131 of the Civil Code of 1910, paid the freight and demurrage charges on the goods, stored them in the city of Valdosta for the use of the defendant, and brought this suit for the entire purchase-price. The defendant, by its answer, admitted that goods of the grade and quantity designated by its orders were shipped at the time specified therein, but contended that it was not liable, on the ground that its orders had not been accepted by the plaintiff according to their terms and conditions, hut that the plaintiff’s acceptance by wire of the defendant’s original orders was a material change of the terms of the orders in reference to the time when the goods ordered were to be shipped, and this misinterpretation was a rejection of the original order, and the defendant had so construed it and ordered the goods from elsewhere. The transactions were by letters and telegrams, and after their introduction a motion to nonsuit was sustained.</p>

<p>Complaint; from Baldwin superior court — Judge Park. April 27, 1921.</p>

<p>Complaint; from city court of Macon — Judge Gunn. April 4, 1921.</p>

<p>Confiscation:, from Forsyth, superior court — -Judge Blair. April 23, 1921.</p> <p>Application for certiorari was denied by tlie Supreme Court.</p> <p>This case arose on the following state of facts: The sheriff of Forsyth county seized a Ford automobile containing, for transportation, twentj'-one gallons of whisky. Subsequently the solicitor-general instituted condemnation proceedings under the provisions of § 20 of the act of the General Assembly approved March 28, 1917. The James H. Prichard Motor Company filed an intervention, wherein it set up that it held the legal title to the automobile, by virtue of a duly recorded contract retaining title, and it had no knowledge or notice of the illegal use to which the automobile had been put, and prayed that it be allowed to intervene in the cause and be made a party thereto, in order that it might set up its title to the automobile, and that it be permitted to give bond in a sum to be fixed by the court for the final condemnation money, and that upon the giving of such bond it be allowed to have possession of the automobile. The court passed an order permitting the intervention to be filed, and providing that “upon the giving of bond by the within intervenor in the sum of $400 for the eventual condemnation money, as provided by law, the sheriff is ordered to deliver to said intervenor the property described in the within intervention, said bond to be approved by the sheriff or the solicitor-general of this court.” Subsequently, by a petition for a rule against the sheriff, the intervenor set up the provisions of the order quoted above, and that the sheriff had failed and refused to comply with the order and accept the bond, although the intervenor had tendered to the sheriff a good and solvent bond as required by the order of the court, and the sheriff had refused to deliver the automobile to the intervenor. Eule nisi was granted, and the sheriff interposed a demurrer and a motion to dismiss the rule, upon the following grounds: (a) Under the facts set forth in the original petition, the intervention, and the rule, as applicable to the act of the General Assembly, approved March 28, 1917, it is the duty of the respondent, as sheriff, to retain possession, custody, and control of the car in question until the issue made on the intervention is determined, and, if the intervention is determined against the claimant, to sell the car as provided by the act. (5) Under the facts set up in the original petition, the intervention, and the rule, and the law applicable thereto, it is the duty of the respondent in any event to sell the interest owned in said car by the person unlawfully using the same, or to sell the car and pay over to the claimant any balance of the purchase-money the jury might find was due him. (c) The court was without authority of law to pass any order, under the allegations of fact made in said proceedings, to require the respondent to deliver the car in question to the intervenor on the giving of the bond. (d) The order of the court requiring the respondent to accept the bond was without authority of law, and is therefore nugatory. The court overruled the demurrer, and the sheriff excepted.</p>

<p>Damages; from Fulton superior court — Judge George L. Bell. March 18, 1921.</p> <p>The plaintiff obtained a verdict $2500 on personal injuries he sustained by the breaking of a plank in a bridge over which lie was walking, whereby his foot and leg were thrust several feet downward into the opening. The defendant excepted to the refusal of a new trial; the grounds of its motion being indicated by the headnotés.</p>

<p>Complaint; from city court of Bainbridge — Judge Spooner. May 2, 1921.</p>

<p>The sole question in the case being one of fact, upon which the evidence is in conflict, the judgment overruling the motion for a new trial is affirmed.</p>

<p>Certiorari; from Bibb superior court — Judge Malcolm D. Jones. May 20, 1921.</p> <p>Application for certiorari was denied by the Supreme Court.</p> <p>Suit was brought by the Emerick Candy Company against Newton Brother in the municipal court of Macon; for a shipment of candy. On the trial the defendants assumed the burden of proof and introduced the following evidence: An order from the defendants to the plaintiff in the form of a letter, dated September 26, 1918, as follows: “Please ship as soon as possible the following: 200 Bxs. Fruit & Nut Loaf, 200 Bxs. Coco Cr. Bars, 200 Bxs. Crisp Bit, 200 Bxs. Nougat Bars. Duplicate Oct. 15th, Nov. 1st, Nov. 15th.” The first shipment on this order was made on December 4, 1918. On November 25, 1918, Newton & Brother wrote to the plaintiff as follows: “ Kindly discontinue shipments of 6^ goods against the orders you have on file for us until further advised.” This letter did not reach the plaintiff until December 7. On that date the plaintiff wrote to Newton & Brother as follows : “ We have your letter of the 25th ult. requesting cancellation of your orders, which has been done.” Afterwards the defendants wrote to the plaintiff that the shipment had been received by them, and that they would be unable to handle it and would hold the same subject to plaintiff’s order. The suit was for the price of this shipment. The judge of the municipal court, after hearing the evidence, directed a verdict for the plaintiff for the full amount sued for. The defendants carried the case to the superior court by certiorari, and the judge of that court sustained the certiorari and remanded the case for a new trial, and the case came to this court on exceptions to this judgment.</p>

<p>This ease is fully controlled by the decision of the Supreme Court when it was before that court on substantially the same record; and no error appears in the last trial.</p> <p>The court did not err in not charging as requested as to what would constitute ordinary care or negligence on the part of one approaching or crossing a railroad-track.</p>

<p>Action for damages; from Stewart superior court — Judge Littlejohn. May 21, 1921.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. December 7, 1920.</p>

<p>1. Where plaintiffs, as copartners engaged in the practice of law, sued upon a quantum meruit for a certain amount on account of services rendered to the defendant corporation, the bill of particulars showing that some of the services were rendered by the firm as attorneys, and a part by the respective members of the firm as officers of the defendant corporation, an amendment to the bill of particulars, striking therefrom the items for services rendered as such officials, was not subject to the objection that it added a new and distinct cause of action, notwithstanding that by the terms of the amendment the amount originally sued for remained the same, and the amount claimed for the stated legal services was in this way increased. Hager v. Cunningham, 126 Ga. 684 (4) (56 S. E. 64); Danielly v. Cheeves, 94 Ga. 263 (1), 267 (21 S. E. 524); Wilson v. Bush, 22 Ga. App. 83 (2) (95 S. E. 317).</p> <p>2. The ground of demurrer, that, as the suit for legal services was based upon a quantum meruit and not upon an express contract, a recovery could not be had on the basis of a monthly valuation of such services, and that consequently the bill of particulars was inadequate, was not well taken; For general advice and services of the nature and character indicated by the petition and shown by the evidence, the plaintiffs were entitled to recover ordinary and reasonable charges, fixed according to the mode usually observed by members of the legal profession. Marshall v. Bahnsen, 1 Ga. App. 485, 486 (57 S. E. 1006).</p> <p>3. The verdict was supported by the evidence.</p>

<p>Levy and claim; from Barrow superior court — Judge Cobb. December 17, 1920.</p>

<p>Foreclosure of lien; from Fulton superior court — Judge Pendleton. December 16, 1920.</p>

<p>1. A retailer, or one acting as the mere distributor to the retail trade, of a food product contained in unbroken packages as put up by and procured from a reputable dealer, distributor, or manufacturer, is not prima facie liable in damages to a consumer for injuries occasioned by a deleterious condition of the product, since he could not in the exercise of ordinary diligence be expected to open for inspection the individual packages thus prepared by another; but in an action against either the retailer or the distributor, upon proof of such an injury and that the product was handled by the defendant, lie is required to show his own diligence to the extent that he in good faith purchased the merchandise from a reputable dealer, distributor, or manufacturer, as an article reasonably sound and safe for the use intended. Especially is this true where the package containing the product fails to disclose the identity of the manufacturer or packer responsible for the quality and condition of the product. Atlanta Coca-Cola Bottling Co. v. Danneman, 25 Ga. App. 43 (3) (102 S. E. 542); Payne v. Rome Coca-Cola Bottling, Co., 10 Ga. App. 762 (73 S. E. 1087).</p> <p>2. The plaintiff having brought a common-law action for damages on account of alleged negligence of the defendant in packing and distributing the food product, and not having set up or invoked the criminal provisions of the State “pure-food law,” nor alleged any acts constituting a violation thereof, the case must be tried and determined upon the basis of the issues raised by the evidence under the pleadings, and the plaintiff cannot be permitted in his exceptions to go outside of the issues to which he is thus confined. Flessher v. Carstens Packing Co., 81 Wash. 241 (142 Pac. 694); Hoffman v. Watkins, 78 Wash. 118 (138 Pac. 664); Acres v. Frederick, 79 Wash. 402 (140 Pac. 370).</p>

<p>Action for damages; from Habersham superior court — Judge J. B. Jones. January 22, 1921.</p>

<p>Action for damages; from city court of Albany — Judge Clayton Jones. February 17, 1921.</p>

<p>Action for damages; from Ben Hill superior court — Judge Gower. January 13, 1921.</p>

<p>Action for damages; from Campbell superior court — Judge Hutcheson. January 15, 1921.</p>

<p>Petition to sell lands for division; from Bibb superior court — Judge Mathews. August 28, 1920.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Where the purchase-price of corporate stock has been paid to the seller in advance, and he fails to make delivery in accordance with the contract, the general measure of damages recoverable by the buyer for the breach is the actual or market value of the stock at the time when and the place where delivery should have been made; and in an action for damages in such a case it is incumbent on the plaintiff to submit evidence as to such value.</p> <p>This being such a case and there being no evidence of such value, the verdict for general damages was unauthorized.</p>

<p>Action for damages; from Cobb superior court — Judge Blair. May 22, 1931.</p> <p>The action was for damages on account of the death of the plaintiff’s wife, who was killed by the overturning of a truck owned and driven by the defendant and in which she was a passenger for hire. On the trial of the case the plaintiff obtained a verdict for $400.</p> <p>In the defendant’s motion for a hew trial it is alleged that the court erred in charging: “ The burden is on the plaintiff to show his right to recover by a preponderance of-the evidence, that is the greater weight of the evidence; and if the evidence in favor of the plaintiff is sufficient to incline your mind to his side of the case rather than to that of the defendant, then the preponderance of the evidence would be shown to be in the plaintiff’s favor.” It is alleged that this was error because “ preponderance of evidence ” means, not “the greater weight of the evidence,” but “the suprior weight of evidence,” and that “ the court should have charged further that while not enough to wholly free the mind from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than the other.” (Civil Code of 1910, § 5731.)</p> <p>The charge of the court upon the measure of damages is complained of, on the ground that there was no evidence that the death of the plaintiff’s wife was caused by negligence of the defendant.</p> <p>The court charged: “ The plaintiff alleges in his petition that he incurred an expense of. $20 for doctor’s bills and $100 for burial expenses. Of course, he can not recover more on these items than he has alleged.” This is complained of as amounting to an expression of opinion that the plaintiff could recover the amounts stated.</p> <p>Á definition of “ ordinary care and diligence ” was given in the charge of the court, and the jury were instructed that “the absence of such care and diligence is termed ordinary neglect.” It is alleged that this part of the charge was error because of the use of the word “care;” that while “the court charged correctly the rule on ordinary diligence” (Civil Code of 1910, § 3471), “ ‘ care ’ does-not belong in that part of the charge; care ’ means anxiety, concern, solitude [solicitude?], ‘diligence’ means the opposite of negligence, . . and the rule for ordinary diligence is not the rule for ordinary care.”</p>

<p>A verdict for $150 for carrying a passenger beyond her destination was authorized in this case.</p>

<p>Trover; from city court of Savannah — Judge Freeman. October 30, 1919.</p> <p>The Supreme Court, in its decision reversing the judgment of the Court of Appeals in this case, held that “ in this State a secretary of a banking corporation who is not a stockholder therein, or otherwise beneficially or pecuniarily interested in the transaction,' is not disqualified from attesting, as an official witness, a deed of conveyance in which the corporation is the grantee.”</p>

<p>1. Where a purchaser orders from a seller grain which is consigned, by the seller to himself, with a memorandum on the bill of lading to notify the purchaser, and contemporaneously the seller draws a draft on the purchaser for the price of the grain, payable to a bank, to which is attached the bill of lading, indorsed by the seller, or in blank, and deposits with the bank the draft with bill of lading attached, and the amount of the deposit is credited to the depositor’s general account, the bank becomes the purchaser of the draft with bill of lading attached, and the owner of the grain represented thereby.</p> <p>2. Where, in the case above stated, the bank presents the draft, -with the bill of lading, to the purchaser of the grain and demands payment, and the purchaser refuses to pay the draft, or to deliver the grain on demand, the bank has the right to bring an action of trover against the purchaser and to demand a verdict for the amount of the draft, with seven per cent, interest, where the amount is not more than the highest proved value of the grain between the date of the conversion and the trial. O’Neill Mfg. Co. v. Woodley, 118 Ga. 116; Milltown Lumber Co. v. Carler, 5 Ga. App. 353.</p> <p>3. There was no error in directing a verdict for the plaintiff for the amount of the draft, with seven per cent, interest, this being less than the highest proved value of the grain, which the plaintiff had elected to take, and which the evidence, with all reasonable inferences and deductions therefrom, proved was its legal right.</p>

<p>Certiorari) from Morgan superior court — Judge Park. February 3, 1921.</p>

<p>Eviction; from Colquitt superior court — Judge Thomas. January 21, 1921-</p>

<p>Complaint; from Ben Hill superior court — Judge Gower. February 5, 1931.</p>

<p>Complaint; from Newton superior court — Judge Hutcheson. January 7, 1921.</p>

<p>Complaint; from city court of Macon — Judge Gunn. January 29, 1921.</p>

<p>1. Not only would this court be bound by the rulings of the Supreme Court on a principle of law as applicable to a certain state of facts under the doctrine of stare decisis, but by express provision of the constitution of this State the decisions of that court are made binding upon this court as precedents. In a suit by the same plaintiff on another policy of life insurance covering . the same risk, where the issue as to fraud was the same, and the evidence on that issue was for the most part identical and in its. effect substantially the same, it was held by the Supreme Court that, “ under the evidence introduced, it was for the Jury to say whether the representations thus made were material to the risk.” Connecticut Mutual Life Insurance Co. v. Mulkey, 142 Ga. 358 (82 S. E. 1054). It was therefore error in the instant case for the trial judge to direct a verdict for the defendant, but the issue of fraud should have been submitted to the jury.</p> <p>2. Under the doctrine known as the “ law of the case,” the court did not err in striking certain portions of the original plea and certain amendments thereto, .since according to the rulings made by this court in Columbian National Life Insurance Co. v. Mulkey, 13 Ga. App. 508 (79 S. E. 482), and 19 Ga. App. 247 (91 S. E. 344), the law as to such a defense, so far as this case is concerned, has been fixed and determined by express rulings adverse to defendant; and by them not only the lower court but this court as well is bound.</p> <p>3. The exclusion of the medical examiner’s report, if error at all, was, under the facts of this case, harmless.</p>

<p>No error appears, and the verdict is fully supported by the evidence.</p>

Certiorari; from Rulton superior court — Judge Ellis. January 20, 1921. Thomas Wilson as landlord, through his duly authorized agent, instituted proceedings to disposssess W. O. Martin as a tenant holding over beyond his term. The tenant filed a counter-affidavit denying that his term had expired. The sole issue upon the trial was whether the lease contract between the parties, which had expired, had been renewed.

<p>Complaint; from city court of Carrollton — Judge Hood. February 4, 1921.</p>

<p>Complaint; from city court of Valdosta — Judge Cranford. February 21, 1921.</p>

<p>Motion to set aside judgment; from city court of Athens — Judge Bradwell. February 15, 1921.</p>

<p>Action for damages; from city court of Albany — Judge Clayton Jones. May 21, 1921.</p>

<p>Certiorari; from Fulton superior court — Judge Ellis. February 2, 1921.</p>

<p>Conviction of involuntary manslaughter; from DeKalb superior court — Judge C. W. Smith. August 21, 1919.</p>

<p>Where it was sought to recover a commission for procuring a purchaser for certain land, under a contract authorizing the plaintiff to act as the defendant’s agent in the sale of land, it was not harmful to the defendant for the court to charge the jury that there was “no reservation in this contract to the effect that . . the owner of the land did not have the right to sell.”</p> <p>Although the placing of property in the hands of an agent to sell “ does not prevent the owner from selling, unless otherwise agreed” (Civil Code of 1910, § 3587), the agent, if during the agency “he finds a purchaser ready, able, and willing to buy, and who actually offers to buy on the terms stipulated by the owner,” can not be deprived of his commission by negotiations between the owner and a prospective purchaser with whom the owner has not entered into a mutually binding and enforceable contract for the sale of the property.</p> <p>The verdict for the plaintiff was supported by evidence.</p>

<p>Certiorari; from Chatham superior court — Judge Meldrim. January 13, 1921.</p>

<p>Complaint; from city court of Savannah — Judge Freeman March 4, 1921.</p>

<p>Action for damages; from city court of Floyd county — Judge Nunnally. April 23, 1921.</p>

<p>1. Where a negotiable promissory note purports to have been given “for value received,” and suit is brought thereon by the payee, the maker may plead and by parol prove what the real consideration is, for the purpose of showing that the consideration has either totally or partially failed.</p> <p>2. A ground of a motion for a new trial complaining of the exclusion of certain documentary evidence will not be considered when the evidence referred to is not set forth either literally or in substance in the motion or attached to it as an exhibit.</p>

<p>Conviction of manslaughter; from Fulton superior court — Judge Humphries. May 21, 1921.</p>

<p>Indictment for manufacturing intoxicating liquors; from Macon superior court — Judge Littlejohn. May 30, 1921.</p>

<p>Complaint; from city court of Atlanta — Judge Reid. May 25, 1921.</p> <p>On April 19, 1920, Morris Fertilizer Company sued R. B. Jackson on a promissory note; and summons of garnishment, based on this suit, was served on the Bank of Hapeville. The bill of exceptions of the fertilizer company states that on June 30, 1920, the defendant filed an answer setting -up that he was adjudicated a bankrupt on May 18, 1920, and asking for a stay of proceedings until his discharge in bankruptcy; and that on May 11, 1921, he filed an amendment attaching to his plea a certified copy of the adjudication, his schedule in bankruptcy, and his discharge, showing the plaintiff’s claim properly scheduled, and assets of $88 in cash in the Bank of Hapeville, subject to check. The bank, in its answer to the summons of garnishment, “admitted funds in the sum of $72.67.” This case was tried on an agreed statement of facts, as follows: The facts alleged in plaintiff’s original petition are true. The plaintiff's debt was duly scheduled in the bankruptcy proceeding, and is a provable and dischargeable debt, but no trustee was appointed by the court of bankruptcy and no homestead or exemption was granted, and the bankruptcy court did not take possession of or attach the funds held by the Bank of Hapeville, and the funds are now held by it as stated in the answer to the garnishment. “The plaintiff did not go into the bankruptcy court . . and did not ask for a receiver or appear in any way, and did not prove its claim in the bankruptcy court, and the defendant was duly discharged August 14-, 1920.” The plaintiff "tendered its original note in evidence and asked that a judgment be entered, with the limitation that it be made only out of the garnishment proceedings, or a judgment against the defendant with a stay of execution, for the purpose of entering a judgment against the garnishee, and that the court allow the plaintiff to enter up judgment against the garnishee for the fund in its hands. . . The only objection made in this case to the entering of such judgment was made by the defendant E. B. Jackson.” The judge directed a verdict in favor of the defendant, holding that no judgment could be entered against the defendant for the purpose of entering judgment against the garnishee. Error is assigned on this judgment.</p>

<p>Complaint; from Eulton superior court — Judge Pendleton. May 26, 1921.</p>

<p>Accusation of violating liquor law; from city court of Sparta — Judge Lewis. May 18, 1921.</p>

<p>Accusation of possessing intoxicating liquor; from city court of Floyd county — Judge Nunnally. June 1, 1921.</p>

<p>Indictment for making liquor; from Campbell superior court — Judge Hutcheson. June 11, 1931.</p>

<p>Action for damages; from city court of- Albany — Judge Clayton Jones. May 38, 1931.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Foreclosure of lien; from Kichmond superior court — Judge Henry C. Hammond. May 17, 1931.</p> <p>The petition names as defendant “the Young Zion Baptist Church,” and alleges that “defendant is a Baptist church of said State and county.” The demurrer is upon the grounds, among others, that “there are no proper parties defendant,” and that the petition “ does not allege that defendant is a corporation, or, if not a corporation, name the members who compose the partnership.”</p>

<p>Indictment for assarilt with intent to murder; from Taliaferro superior court — Judge Shurley. May 30, 1921.</p>

<p>Accusation of receiving stolen goods; from city court of Albany — Judge Clayton Jones. June 6, 1931.</p>

<p>This court is powerless to interfere with a verdict supported by evidence and approved by the trial judge, although there was conflict in the evidence.</p>

<p>Indictment for misdemeanor; from Newton superior court — Judge Hutcheson. June 11, 1921.</p>

<p>Redelivery of personal property to the plaintiff after the filing and service of an action for its conversion will not deprive him of the right to recover for damage resulting from the conversion, but may mitigate the damages.</p> <p>Failure to pay or tender payment for the cleaning and pressing of clothes delivered for that purpose and not returned will not defeat an action for their conversion, where the sole reason assigned by the defendant for not returning them when their return was demanded was that he did not have them and that the plaintiff had never delivered them to him.</p> <p>The articles in question having been returned to the plaintiff after suit for their conversion, and there being no proof of actual damage to him from the alleged conversion, and the only harmful result to him of the award of a nonsuit being the taxing of costs against him, this court, although holding that the court below erred in awarding a non-suit, affirms the judgment, with direction that the defendant be taxed with the costs of the suit and of the writ of error.</p>

<p>1. While, as a general rule, a county is not liable to suit unless there is a law which in express terms or hy necessary implication so dedeclares, yet the appropriate law may be found in the constitutional provision that private property shall not be taken or damaged for public use without just compensation being first paid. When private, property is taken or damaged by the authorities of a county, or by their duly authorized servant, for the use of the public, without just compensation being first paid, a right of action arises in favor of the owner of the property, v.Mch may be enforced by suit against the county, and the owner is entitled to recover adequate compensation for the property taken or damaged.</p> <p>(а) Where the private property wrongfully damaged is land, adequate compensation or damages would' be the difference between the market value of the land immediately before and after the damage.</p> <p>(б) Even if the wrongful acts complained of which had the effect of taking or of damaging private property for public use were not done in the first instance under the sanction of the county authorities, yet if such authorities ratified and approved the acts of those assuming to represent them, the county would nevertheless be liable.. And if the county authorities, after knowledge that their agent, charged with the working of a public road of the county, knowingly or by mistake took private property (dirt from a person’s land, thereby damaging the tract of land from which the dirt was taken), without compensation, and used the property taken in the improvement of the public road, the retention of the property so taken would authorize an inference that the original appropriation of the property had been ratified by the county authorities, so as to charge the county with the original wrongful taking and make it liable in damages, at the election of the owner of the property, either for the value of the prop-property taken or for the diminution in the market value of the entire tract of land from which the dirt was taken.</p>

<p>Indictment for making liquor; from Wilkes superior court — Judge Shurley. May 19, 1921.</p> <p>It was testified that on a creek between Watson Sutton’s place and Jim Sutton’s place a still, making liquor, was found, and George Mickens, the defendant, who was a boy living with Jim Sutton, was seen as he went to the still and “ whistled a man out,” and “went in,” after which he was not again seen there. A witness testified: “I waited there about 20 or 30 minutes, to see him come out. I heard them hitting the tin and saw the smoke come out . . after this boy went in there. He had nothing with him when he went in. . . A white man was running the still. His name was Mr. Wilkes. I guess he was the one running it. He was the only white man there. I just saw this boy go in there. I never saw him do anything around the still. I don’t know whether he went out on the other side or not. . . On the side he went in there was a path going there. • There was another path on the other side. . . That path on the other side led direct to Mr. Sutton’s house. . .. This negro had to wait there something like two or three minutes after this peculiar whistle. He stood right steady until the fellow came out and invited him in.”</p>

<p>Indictment for possessing intoxicating liquor; from Harris superior court — Judge Kent presiding. May 28, 1921.</p> <p>A county policeman (the only witness for the State) testified, that he, with other county ¡Dolicemen, saw a ear drive up from a public road and stop in a grove in front of the defendant’s house about ten or eleven o’clock at night, and saw persons get out of the car, but “ could not tell what direction they went;” they returned to the car in about an hour, and the witness heard them setting jugs in it, the car turned around and started back in the direction from which it had come, and he and the other officers stopped it, about 50 yards from the defendant’s house, and found in the car about nine gallons of corn whisk}»- and a white man and two negroes. He did not see the defendant that night. The witness went back to the defendant’s place the next morning about sunrise and found hidden in the woods back of the house, “ about across three acres of land,” fifteen gallons of whisky in a jar and in a keg, covered with cloth. While there he saw the defendant going across the woods with a brace and bit in his hands, about 50 yards from where the^ whisky was found, and the defendant, on being asked which way he was “headed to,” said he was looking for an ax that he left over there the day before when cutting wood. The witness then showed the whisky to the defendant, and the defendant said he was very much surprised to see it. He told the witness to search his house at any time the witness wished to do so. Nothing was said about the ownership of the whisky. The public road in front of the defendant’s house runs north and south, and his house is on the west side; the witness was on the east side when the car drove up. There is a tenant house about 75 yards from the defendant’s house and between the defendant’s house and where the whisky was found in the woods; the witness did not know whether the persons who left the car went to the tenant’s house, but “ they were obliged to have gone that way.” Mr. Ira McGee lived up the road from the defendant’s house, and a white man named Jeter lived about 75 yards back of the defendant’s house. The witness did not see a path leading to the whisky. A path on the edge of the woods came along by the tenant house. The witness saw Wo persons with an empty keg or jug leave the woods before he saw the defendant; they were going towards the tenant house; they were coming up a wire fence which led to the tenant house and from there to the defendant’s house. n</p> <p>Several witnesses "were introduced by the defendant, and persons who were in the car and were arrested by the State’s witness testified that they did not get any whisky from the defendant and did not see him. The defendant, in his statement at the trial, said that he knew nothing about the whisky before his attention was called to it by the State’s witness.</p>

<p>Indictment for robbery; from Fulton superior court — Judge Humphries. May 28, 1921.</p>

<p>A conviction of cheating and swindling, under the “ labor-contract law ” (Penal (Jode of 1910, §§ 715 et seq.), was not authorized by the evidence.</p>

<p>Accusation of wife-beating; from city court of Tifton — Judge Price. June 6, 1921.</p>

<p>Indictment for murder; conviction of voluntary manslaughter; from Treutlen superior court — Judge Eschol Graham. May 30, 1921.</p>

<p>A conviction of cruelty to an animal, in running over and killing a dog with an automobile, was authorized bji the evidence.</p>

<p>Accusation of possessing liquor; from city court of LaGrange — Judge Duke Davis. May 21, 1921.</p>

<p>Conviction of manslaughter; from _ Chattooga superior court —-Judge Wright. June 11, 1931.</p>

<p>Indictment for adultery and fornication; from Pike superior court — Judge Searcy. June 4, 1931.</p>

<p>Indictment for assault with intent to murder; from Carroll superior court — Judge Eoop. June 4, 1921.</p> <p>A ground of the motion for a new trial was that the court erred in charging the jury as follows: “ Certain • evidence has been offered before you, claimed 'by the State to be ad-miss-inna amounting to inculpatory or incriminating statements. You look to the evidence and determine whether or not any such admissions or incriminating statements have been made, — if the defendant George Persons made any such admissions or inculpatory statements. If he did, why then you will determine from the evidence whether or not such admissions were freely and voluntarily made, without being induced by another by the slightest hope of benefit or remotest fear of injury. If you find that any admissions were made, and they were made under those circumstances, why then you should consider them, along with other testimony in the case, in determining the guilt or innocence of the defendant. You may consider such admissions, if there be any, both in determining whether or not he is guilty of the offense of assault with intént to murder, or of the offense of shooting at another.” It is contended in this ground of the motion for a new trial that the court erred in not charging that if it should appear that the admissions were not freely and voluntarily made, or were induced by the slightest hope of reward or fear of injury, they should not be considered by the jury; that the court erred also in not charging that all admissions should be scanned with care and confessions of guilt should be received with great caution, and that admissions alone, uncorroborated by other evidence, will not justify a conviction; that the failure so to instruct the jury, in connection with the instructions quoted above, led the jury to believe that the defendant could be convicted on the uncorroborated admissions of the defendant.</p>

<p>Indictment for making liquor; from Cherokee superior court — Judge Blair. June 14, 1921.</p> <p>Bill Lusk was convicted under an indictment which charged him and Grady Moore with the manufacture of intoxicating; liquor. . It was testified that the sheriff and others “made a raid” on a still which was in operation, making whisky, and found the defendants at work there with others, and saw Lusk carry wood to the still and put it under the furnace; that Grady Móore was arrested, and Lusk and the others ran of£; that the pocket of a coat found there by the officers contained papers on which the name of Lusk was written in his own handwriting, and contained also a memorandum book (introduced in evidence) in which were written, in his handwriting, “Bill Lusk Book,” and entries of quantities and prices of malt, meal, barley, and sj'rup furnished by him, and of quantities of whisky, etc. There was other evidence in behalf of the State. Grady Moore was one of the witnesses for Lusk, and denied that Lusk was one of the persons at the still at the time referred to by the State’s witnesses. On cross-examination he testified, as to the coat found by the officers, that he did not know and did not tell them' whose coat it was, and did not “go into a conversation with.” Spears, the sheriff, “about not going through that coat.” Spears, in rebuttal, testified that as he was pulling the papers out of the coat, “ Grady Moore stepped up and said . . ‘ Don’t let them see Bill’s papers.’” In the only special ground of the motion for a new trial it is stated that the solicitor-general said to this witness: “You testified about finding a coat and taking these things out and having a conversation with Grady Moore; I will ask you whether or not anything was said with reference to the contents of that coat;” whereupon counsel for the defendant objected “to that as irrelevant, immaterial, and incompetent,” and contended that “you can’t take up a matter like this and attempt to impeach a witness on matter of this kind.” The objection was overruled. A note of the trial judge to this ground refers to the testimony of Grady Moore, stated above, and states that “the evidence objected to sought to contradict this evidence.” It is contended that in allowing the testimony of Spears as to this matter to go to the jury, the court erred because “it was an attempt to impeach a witness on an immaterial matter,” and “it was proving an incompetent matter in a roundabout wa]r, as the court had previously ruled out what Moore said. Moore noi being on trial.”</p>

<p>Indictment for assault with intent to murder; from DeKalb superior court — Judge Hutcheson. May 28, 1921.</p>

<p>Indictment for possessing liquor; from Lincoln superior court — Judge Shurley. June 16, 1921.</p>

<p>Indictment for assault with intent to murder; from Wilkes superior court — Judge Shurley. June 16, 1921.</p>

<p>Indictment for making liquor; from Wilkes superior court — Judge Shurley. May 28, 1921.</p> <p>Stribling, the defendant, it was testified, told the sheriff, who found him at a still, that he “was going to make some whisky for his own use.” According to the testimony, he said that the still was his. It was a copper still of about 40 or 50 gallons capacity. At the same place were barrels which held about 50 gallons, meal, and “some beer or stuff they make beer with. . .' Some of this stuff was mixed up in both box and barrel. The. meal hadn’t been put in very long; it must have been mixed up the night before. He said there was a hundred pounds of sugar in there and the meal. The still was in a brick furnace; it was bricked in' clear up to the top, and there had been a fire there, but the mortar in the brick wasn’t dried. He said he had cooked the meal in it the night before and had put it in and put this water in. The water was clear, except that it had husks floating around in it.” Stribling told the sheriff that he had mixed this stuff to make whisky for his own use. When first seen, by the witnesses he was about 20 feet from the still, going to it with a sack on his right shoulder and a stick in his left hand, and the sack Had “something like bran in it.”</p>

<p>Failure to charge the jury as to the form of verdict to be rendered in the event of an acquittal, although they were charged as to the form of verdict to be rendered if they should find the defendant guilty of seduction or of fornication, was not cause for a new trial to one convieted of seduction, where he admitted, in his statement at the trial, that he was guilty of fornication, and a verdict of acquittal would not have been authorized.</p> <p>Refusal to grant a new trial because of alleged newly discovered evidence was not an abuse of discretion.</p>

<p>Indictment for murder; from Jasper superior court — Judge Park. June 11, 1921.</p> <p>Will Andrews was charged with having killed Willie Whipple by shooting him with a pistol, and was convicted of involuntary manslaughter in the commission of an unlawful act. According to the evidence, they were at a party at Beechy Walker’s at night, where “ the negroes were in the room as thick as your fingers. ’’ Geiie Wilder testified: “Beechy came in the room and told them that he didn’t want to have any riot there. Will Andrews cussed at me; I thought he was joking. . . I cussed back at him, then Beechy came in there and told us that he didn’t want us to have any fuss in there. . . T turned around and walked off, . . went there in the corner and sat down, and then I got up and walked to the door, and Will Andrews was about the door too. I didn’t have any weapon in my hands, and he didn’t say anything to me, and I didn’t say anything to him; and he fired a pistol and I run. . . I didn’t hear him say anjdhing, or anybody else say anything at that time. . . I run about a quarter of a mile before I stopped. I found out the next day that there had been a negro shot. . . Will Andrews didn’t do like he was mad. He had been trying to separate this girl; they were frolicking. He didn’t say anything unkind to me. . . There had been no fuss there before I left.” Ed Whipple testified: “I was in about 20 feet of Will Andrews at the time he did this shooting. . . Gene'Wilder and Will Andrews were having words about Gene Wilder’s sister. Gene Wilder said, ‘ Let me have her, I can do more with her than anybody else;’ that is all I heard. I saw this man Gene Wilder when he went to the door. . . I never saw him doing anything to Andrews at the time. He did not have anything in his hand. He said something like, ‘You have got yours, if I had mine there would be trouble:’ that is what I understood; and this other man had a pistol; I could see it. They were pretLy close together, and this man Will Andrews shot and missed Gene and hit my brother, Willie Whipple. Willie wasn’t doing anything at all. . . The girls started this row. Wüh Andrews was trying to stop Gene’s sister, and Gene said, ‘Let me have her;’ that was all of the fuss. . . Willie Whipple died in about three days in the hospital in Macon; they operated on him.” “He was shot through the throat.” The defendant “shot towards Gene Wilder; I won’t say he shot at him; he missed him.” Beecher Walker testified that Andrews was trying to quiet two girls, one of whom was Gene’s sister, and Gene came up and said, “ I can do more with her/’ and the witness told him, “ Don’t you have any fuss,” and Andrews said he was not going to have any fuss; the witness then turned off, and he knew nothing about the shooting.</p> <p>The defendant, in his statement at the trial, said that he was examining a pistol which had been handed to him by a boy who offered to pawn it to him, and who told him that it was not loaded; he pulled the hammer back to look at it, and it went off and shot, and some of the boys said, “ You have shot and killed somebody; ” he had not had a fuss with any of the boys and was not mad with any of them.</p> <p>The motion for a new trial contained only the usual general grounds.</p>

<p>Indictment for carrying pistol, etc.; from Glascock superior court — Judge Shurley. June 17, 1921.</p>

Indictment for manufacture of intoxicating liquor; from Paul-ding superior court — Judge Irwin. June 3, 1921.

<p>Indictment for manufacture of intoxicating liquor; from Paulding superior court — -Judge Irwin. June 4, 1921.</p> <p>Comer Teal, the defendant, it was testified, was “ a boy living with his father, . . a very old man, . . feeble, hardly able to get out of the house, . . not able to work ” or to operate a still; and officers looking for a still found in and near a pasture used by the father different evidences of the making of liquor; they found in the pasture, about 150 or 200 yards from the house, a still and cap and worm hidden under some brush pine tops where wood had been cut, and found just outside the pasture and between a quarter and a half mile from the house about 500 or 600 gallons of beer, and a furnace, a hake-stand, etc.; and there were "fresh tracks from the distillery directly to his house.” " Several little beaten paths seemed to start off from the beer,” but were not traced away from there; one went straight to Teal’s house. One of the officers' testified: " Saw the defendant the day I was down there; he was about half way between the house and where we found the still, coming down the path. He was coming down from the house; didn’t see him about the still; he had an ax on his shoulder; . , never at any time saw Comer with any whisky or beer or anything of the kind, or in possession of any still apparatus; . told him what we had found; he said he didn’t know a thing about it; . . met Comer going toward the still.” The witness did not know who else lived with the defendant’s father. Another officer testified that "there was a young man there, coming down across the field with an ax on his shoulder,” as they "went up there,” but he did not know whether it was Comer Teal or not. Other people lived not far away from there. The defendant, in his statement at the trial, said that he was in Dallas when "they got that still,” and did not know anything about it; that he knew nothing as to the beer being there.</p>

<p>1. The trial judge did not err in refusing to allow a witness to answer the question, “How many times have you been convicted of selling whisky recently? ” nor in stating, in connection with that ruling, “ She does not have to answer anyhow, unless she wants to. That is not the way to prove it anyway.”</p> <p>2. No error was committed in permitting a witness to testify as to the condition of the stolen automobile at the time it was recovered.</p> <p>3. (a) “A ground of a motion for a new trial to the effect that the court erred in excluding the testimony specified as a whole is not a good ground, when a part of the testimony so specified is objectionable.”</p> <p>(6) Where 'evidence is admitted provisionally and no motion is thereafter made to exclude it, objection to' it will be held to have been waived.</p> <p>4. Where certain language used by the judge in passing upon objections to testimony is alleged to be prejudicial to the cause of'the defendant, but no motion for a mistrial is made, and the case proceeds, without objection to the remarks of the judge, no question as to the prejudicial nature of these remarks can be raised in the motion for a new trial.</p> <p>5. In this case there is some evidence which within itself, and independently of the testimony of the accomplice, would lead to an inference of guilt of the accused.</p>

<p>Accusation of larceny; from city court of Macon — Judge Gunn. July 6, 1921.</p>

<p>Indictment for larceny from house; from Sumter superior court — Judge Littlejohn. June 31, 1921.</p>

<p>Indictment for assault with intent to rape; conviction of assault; from Cherokee superior court — Judge Blair. June 18, 1921.</p> <p>The indictment charged that the defendant made an assault upon a named female and attempted to have carnal knowledge-of her forcibly and against her will. The woman testified, that the defendant came to her home in the absence of her husband, and, when told that her husband would be back pretty soon, he walked up behind her and cursed and said, “ Oh, hell, he will stay a long time, and I am going to have my way now,” and he grabbed her; she told him she “wouldn’t,” but she did not get loose then; he held her and told her there was no use to resist him, that he was going to outdo her if she “wouldn’t give,” but that he was “going to anyway;” he pulled her about half way through the hall of the barn, trying to get her into a stall there; she got loose from him by telling him to let her get the bucket out of the stable, that the mule was tearing it up. She testified further: “He quit pulling then and let me walk back and get the bucket out, but he didn’t take his hand off of me. After I got the bucket out I whirled around like I was going to throw the water on him, and he turned me loose a little bit and we went on toward the house, and he followed me on until I got past the trail that turns into the house. . . The defendant was right behind me all the time and overtook me. . . I had . . tried to get away without him knowing it, but I didn’t get away for a while, because he taken hold of me again in front of the house; . . he said then he wasn’t going to let me leave there until he got through with me, and I told him I would too. He said, ‘ There is an old house just above the road, and I will put you in this old house up there,’ and he tried to pull me toward the house . . I begged him to turn me loose, and I threatened him, and after I got past the house a piece I got loose and left . the defendant standing up against a tree.” A witness testified that he saw them when he was at a distance of three or four hundred yards from them, and the defendant had hold of the woman, and seemed to be trying to hold her when she got loose and ran off five or ten steps, and that after talking with him she went on to the house of the witness. The defendant, in his statement at the trial, said that he met the woman and walked to the barn with her, talked a few minutes and walked back, taking her by the hand and talking with her as they walked, and holding her by the arm where the road was rough, and asked her to have intercourse with him, and “she resisted and turned around and walked off” a few steps, stopped and talked further with him, and he walked off and left her.</p>

<p>A general verdict of guilty upon an indictment in two counts, one charging possession of intoxicating liquor and the other charging sale of such liquor, is not authorized, where there is no evidence of such a sale.</p>

<p>Indictment for murder; conviction of voluntary manslaughter; from Lamar superior court — Judge Searcy. June 23, 1921.</p>

<p>A conviction of arson was authorized by the evidence. I/cike, J., dissents.</p>

<p>Indictment for larceny of borse; from Wilcox superior court — Judge Gower. June 30, 1931.</p>

<p>Action on insurance policy; from city court of Bainbridge — Judge Spooner. February 21, 1921.</p>

<p>Action for damages; from city court of Floyd county — Judge Nunnally. April 33, 1931.</p>

<p>Eviction; from Ben Hill superior court — Judge Gower. May 16, 1921.</p>

<p>Conviction of voluntary manslaughter; from Cherokee superi- or court — Judge Blair. July 2, 1921.</p>

<p>Indictment for burglary; from Chatham superior court — Judge Meldrim. June 8, 1921.</p>

<p>Conviction oil larceny of hog; from Wilcox superior court — Judge Gower. July 5, 1921.</p>

<p>Conviction of voluntary manslaughter; from Floyd superior court" — Judge Wright. July 2, 1921.</p>

<p>Indictment for sale of intoxicating liquor; from Floyd superi- or court — Judge Wright. July 20, 1921.</p> <p>The instructions complained of were: (1) “He is presumed to be innocent, and, before you can convict him, the State must establish his guilt by competent and sufficient evidence, beyond a reasonable doubt.” (2) “You are the exclusive judges of the credibility of all witnesses. ” It is. contended that these instructions were not full enough, and that the judge (though not requested in writing so to do) should have explained the meaning of “competent and sufficient evidence,” and “beyond a,reasonable doubt,” and “should have stated to the jury what evidence was sufficient to convict.” As to the second instruction quoted, the movant “submits that said portion of the charge is correct,” but he contends that the court (though not requested in writing so to do) should have gone further and charged that the jury “ should believe those witnésses who have the best opportunity to know the facts about which they testify and the least inducement to swear .falsely,” and should have given other instructions set out in the motion, which are substantially in the language of section 5732 of the Civil Code of 1910.</p>

<p>Accusation of possessing intoxicating liquor; from city court of Macon — Judge Gunn. July 23, 1921.</p> <p>The instructions complained of in grounds 4, 5, and 6 of the motion for a new trial were; (4) “In the case at bar the State contends that the defendant on trial was running a little store in this county, and that police officers of the city of Macon went out to this store and they arrested the defendant and another person found on the premises, the other person being found with some whisky on his person; and that that other person, immediately and in the presence of the defendant, stated that the whisky found upon him belonged to the defendant, and that he had it for the purpose of selling it for the defendant. The State fur-tiler contends that the defendant poured whisky upon the floor of his store out of a bottle that was found where the whisky was poured.” (5) “The 'court charges you, however, that before you would be authorized to convict the defendant as to whisky claimed to have been found on the person of another, and upon the declarations or admissions of that person (although made in the presence of the defendant) to the effect that the whisky belonged to the defendant, that you would have to believe, from a consideration of all the evidence, that the other evidence in the case corroborated the statement of the co-conspirator.” (6) “If you should not find from a consideration of the evidence that the declaration of the co-conspirator was corroborated by other evidence, then you would not be authorized to find the defendant guilty upon that declaration or admission of the co-conspirator. ” As to the part of the charge set out above which is complained of in ground 4, it is contended that an opinion as to what had been proved was expressed or intimated as follows: “that a bottle was found near where the whisky was poured,” and that the other person, “ immediately and in the presence of the defendant, stated that the whisky found upon him belonged to the defendant.” It is. contended that “ the judge has no right to sunij up the evidence in a State court, but this practice is peculiar 'to the courts of the United States, and that for a trial judge in a State court to sum up the evidence is harmful error.” The part of the charge set out in ground 5 is complained of as having expressed or intimated an opinion that “ declarations or admissions ” referred to therein were made in the presence of the defendant, and that the defendant was a co-conspirator with the person who made them; also upon the ground that “it was error for the court to fail to charge that there is no distinction in misdemeanors between principals and accessories, and that all are principals. ” The instruction set out in ground 6 is complained of on the ground that “ the court invaded the province of the jury here, and told them that Tom Holmes and George Allen were co-conspirators.”</p>

<p>Accusation of wife-beating; from city court of Thomasville — Judge W. H. Hammond. July 9, 1921.</p>

<p>Accusation of possessing intoxicating liquor; from city court of Thomasville — Judge W. H. Hammond. June 15, 1921.</p>

<p>Indictment for assault with intent to murder; from Richmond superior court — Judge Henry C. Hammond. July 16, 1921.</p>

<p>Error in not charging the jury oil the second branch of the rule as to alibi requires a new trial.</p>

<p>A general verdict of guilty, upon an indictment containing two counts, the first charging the accused with stealing an automobile, and the second with buying and receiving the automobile, knowing that it had been stolen, cannot be sustained, where there is no evidence supporting the charge in the second count, unless that count was withdrawn from the consideration of the jury.</p>

<p>Excessiveness or harshness of a sentence imposed upon one convicted of crime is not a ground for a new trial.</p> <p>The probation sentence complained of was witbin the power of the court.</p> <p>.A conviction upon the charge.of operating a motor-vehicle upon a public highway while under the influence of intoxicating liquor was authorized by the evidence.</p>

<p>The ruling of the trial judge that no juror put upon the defendant was disqualified because of relationship to a certain witness for the State is not cause for a new trial.</p> <p>The interruption of the cross-examination of a witness was not error.</p> <p>It was not error to refuse to charge the jury that corroboration of the testimony of the alleged victim by other witnesses was necessary, in order to convict of assault with intent to rape.</p> <p>The verdict finding the accused guilty of assault with intent to rape was not without evidence to support it.</p>

<p>Accusation of operating motor-vehicle without light on front; from city court of Miller county — Judge Geer. July 29, 1921.</p>

<p>Indictment for larceny of money; from Floyd superior court — Judge Wright. July 21, 1921.</p>

<p>Accusation of pointing gun at another; from city court of Madison — Judge Lambert. July 15, 1921.</p>

<p>Conviction of shooting at another; from White superior court —-Judge J. B. Jones. July 9, 1921.</p>

<p>Accusation of possessing intoxicating liquor; revocation of parole .under sentence; from city court of Baxley — Judge Lawrence. July 25, 1921.</p>

<p>Indictment for sale of liquor; from Cherokee superior court — Judge Blair. August 12, 1921.</p>

<p>Indictment for violation of liquor law; from Colquitt superior court — Judge Thomas. August 4, 1921.</p>

<p>Certiorari; from Gilmer superior court —'Judge Blair. July 8, 1921.</p>

<p>Indictment for making liquor; from Bartow superior court — Judge Tarver. July 23, 1921.</p>

<p>Accusation of possessing intoxicating liquor; from city .court of Carrollton — Judge Hood. August 5, 1921.</p>

<p>Alleged newly discovered evidence that the gun used by the accused at the time of the alleged assault (and which he had previously shot a number of times on the same day) was “ easy on trigger, and liable to lire with slight pressure on the trigger,” did not require a new trial.</p> <p>Eailure to charge the jury, without written request, as to the weight to be given to evidence of good character of the accused, is not cause for a new trial.</p>

<p>Indictment for murder; conviction of voluntary manslaughter; from Fulton superior court — Judge Humphries. July 2, 1921.</p>

<p>Indictment for larceny; from Montgomery superior court — Judge Eschol Graham. July 26, 1921.</p>

<p>Conviction of shooting at another; from Fulton superior court — Judge Humphries. July 2, 1921.</p>

<p>Indictment for burglary; from Bibb superior court — Judge Mathews. July 22, 1921.</p>

<p>Indictment for having explosives with intent to commit burglary; from Floyd superior court — Judge Wright. August 4, 1921.</p>

<p>Accusation of possessing intoxicating liquor; from city court of Eloyd county — Judge Nunnally. July 22, 1921.</p>

<p>Indictment for violation of prohibition law; from Colquitt superior court' — Judge Thomas. August 10, 1921.</p>

<p>An order revoking the probation of one convicted of crime and granted-leave “ to serve his sentence outside the confines of the chain-gang, jail, or other place of detention,” as provided by the act of 1913 (Park’s Penal Code, § 1081(a) et seq.), is not such a judgment as is subject to review on a bill of exceptions.</p>

<p>Conviction of shooting at another; from Floyd superior court — Judge Wright. August 9, 1921.</p>

<p>Indictment for possessing intoxicating liquor; from Cherokee superior court — Judge Blair. August 6, 1921.</p>

<p>Indictment for rape; from Worth superior court — Judge Eve. August 18, 1921.</p>

<p>Indictment for robbery; from Fulton superior court — Judge Humphries. July 30, 1921.</p>

<p>Indictment for assault with intent to murder; from Eloyd superior court — Judge Wright. August 9, 1931.</p>

<p>A jury of twelve was not waived by the defendant, notice having been given by him at the beginning of his trial in the city court that ho waived nothing except arraignment. His conviction by eight jurors was therefore illegal, and the court erred in overruling his motion for a new trial.</p>

<p>Conviction of assault and battery; from Cobb superior court — Judge Blair. August 20, 1921.</p>

<p>Indictment for possessing liquor; from Cherokee superior court — Judge Blair. August 20, 1921.</p>

<p>Accusation of violation of prohibition law; from city court of Hazlehurst — Judge Bennett. September 12, 1921.</p>

<p>1. “Where a rule nisi for contempt of court was brought against two defendants jointly, and they made a joint answer thereto and were tried together, and the judge sitting both as a court and jury, after hearing evidence, rendered two separate judgments, in one of which he adjudged one of the defendants to be in contempt of court and sentenced him to pay one hundred dollars and to serve twenty days in jail, and in the other he adjudged the other defendant to be in contempt of court and sentenced him to pay one hundred dollars, the two defendants in these circumstances may bring a joint bill of exceptions from such judgment to the court having jurisdiction thereof. Nothing in the foregoing ruling is to be construed as preventing each of the defendants from excepting to the judgment in his own case.”</p> <p>2. Conceding, without deciding, that the city court of Miller county “ has no inherent power to define contempt’s of court,” still, under § 4643 of the Civil Code of 1910, the city court of Miller county has authority to issue attachments against, and inflict summary punishment for contempt of court on, any person who bribes or attempts to bribe a witness not to appear and testify in obedience to his subpoena, even though the bribery is completed or the attempt to bribe is made in a county different from that in which the case is pending.</p>

<p>Action for damages; from city court of Richmond county — Judge Black. January 24,-1921.</p>

<p>Trover; from Laurens superior court. — Judge Kent. December 4. 1920.</p>

<p>C rounds of a motion for a new trial excepting to the exclusion of testimony but not showing why it was excluded and not stating why its exclusion was error are not in proper form for consideration.</p> <p>The court did not err in rejecting the oral testimony offered to vary the terms of a written contract which was the basis of the suit.</p>

<p>Levy and claim; from Camden superior court — Judge Higiismith. May 14, 1921.</p> <p>This is a claim case. The facts disclosed by the record are in substance as follows: The St. Marys Transportation Company, a. copartership composed of J. L. Douglas and others, executed a mortgage on a certain “ lighter ” to the Bertha Mineral Company. This mortgage was executed by J. L. Douglas on behalf of the St. Marys Transportation Company, and was properly recorded. Subsequently John Bichardson, who built the lighter or barge, foreclosed a mechanic’s lien thereon against J. L. Douglas, and had the property levied on and sold at public outcry. At this sale J. C. Buie bought the lighter. Thereafter the Bertha Mineral Company foreclosed its mortgage and levied upon the lighter. Buie thereupon interposed a claim. Thus was the issue formed, which, by consent of all parties, was submitted to the court for determination without the intervention of a jury. The. court decided the issue in favor of the claimant, holding: (1) The mortgage, whether a mortgage by Douglas or by the partnership, was a good and valid mortgage against the property as between the parties. A member of a copartnership is authorized to execute a mortgage on personalty belonging to the partnership to secure a partnership debt. (2) The evidence was sufficient to make a prima facie case on behalf of the plaintiff, showing possession of the property by Capt.' Bichardson to have been through and on behalf of Douglas. (3) The mechanic’s lien was a superior lien to the mortgage. (4) The mechanic’s lien appearing on its face to be in every way regular, and the claimant having bought at sheriff’s sale under foreclosure of the mechanic’s lien, without notice of any defect with respect to the affidavit of foreclosure not having been properly verified or otherwise, [he] would stand in the position of an innocent purchaser and would be protected in the title thus acquired. The alleged defect would be immaterial in this case as against the claimant. (5) It follows that the property is not subject to the mortgage fi. fa., and it is so held.”</p> <p>The plaintiff in fi. fa. excepts to the findings of the court against it, while the claimant, in a cross-bill of exceptions, excepts to the holdings adverse to him.</p>

<p>Complaint; from Clarke superior court — Judge Fortson. June 11, 1921.</p>

<p>Indictment for assault with intent to rape; from Clarke superior court- — -Judge Eortson. June 13, 1921.</p>

Indictment for murder; from McDuffie superior court — Judge Henry C. Hammond. June 8, 1921. Charlie Smith was shot by Olin Johnson with a pistol, in the morning, before sunrise, the ball entering his left side and passing out under the breast bone, and he died within the next forty-eight hours.

<p>1. Wlien considered, in connection with the remainder of the charge the judge did not err in failing to add the words “ and beyond a reasonable doubt” to the words “to a reasonable and moral certainty,” in the excerpt from the charge embodied in the first ground of the amendment to the motion for a new trial.</p> <p>2. While the indictment in this case contained three counts, all of them “ covered the same offense, and the same transaction, and the embezzlement of the same funds, and all were based on the same statute.” In Innes v. State, 19 Ga. App. 273 (91 S. E. 339), this court held: “It is well settled that an indictment may in several counts charge a violation of one statute in different ways; in which event a general verdict of guilty is good if the evidence sustains either count.” See, in this connection, Jones v. State, 12 Ga. App. 564 (2) (77 S. E. 892); Colquitt v. State, 6 Ga. App. 109 (64 S. E. 281).</p> <p>3. The evidence was sufficient to authorize a charge on admissions and confessions.</p> <p>4. In the light of the entire charge the court did not err in instructing the jury as follows: “ It is not incumbent upon the State to show the full amount charged in the indictment; any part, either the full amount of ninety-odd thousand dollars and cents, or any part would be sufficient, as far as the amount is involved in the case.”</p> <p>5. The court did not err in allowing the auditor to testify as to the “ total amount ” of “ a large batch of checks ” introduced in evidence, nor in allowing him to tell the jury how he treated these checks in his audit, as complained of in ground 6 of the amendment to the motion for a new trial; nor did the court err in ruling on the admission of evidence, as complained of in ground 9 of the amendment to the motion for a new trial. Spence v. State, 20 Ga. App. 62 (11) (92 S. E. 555).</p> <p>6. “ Generally what the court says in stating to counsel the reason for . denying a motion to exclude or rule out evidence is, if pertinent to the question raised by counsel, not error, although the reason given involve a statement as to certain testimony which is already in.”</p> <p>7. The evidence the introduction of which was complained of in grounds S and 10 of the motion for a new trial was provisionally admitted, and no motion was thereafter made to exclude it, and it will be considered that counsel abandoned his objections thereto. Quinn v.. State, 22 Ga. App. 632 (2), 634 (97 S. E. 84), and cases cited.</p> <p>8. The court did not err in admitting the evidence of which complaint is made in ground 11 of the amendment to the motion for a new trial; nor did the ruling of the judge on this evidence violate the provisions of § 1058 of the Penal Code of 1910 (Civil Code, § 4863).</p> <p>9. Por no reason assigned did the court err in admitting the checks referred to in special grounds 12, 13, 14, 17, 18, and 19 of the motion for a new trial; nor in admitting the evidence of which complaint is made in the 15th special ground.</p> <p>10. “ Observations of the court to counsel in the hearing of the jury during the progress of the trial, though open to criticism, if of .but slight" importance and only possibly, not probably, injurious, will not work a new trial.”</p> <p>11. There is ample evidence to support the verdict.</p>

<p>1. Exceptions not specifically argued in the brief for the excepting party in this court will be treated as impliedly abandoned, and will not be considered where there is “ no general insistence upon all the grounds of the motion.”</p> <p>2. “All applications for continuances are addressed to the sound legal discretion of the trial judge (Penal Code, § 992), and his decision thereon will not be reversed unless there has been a plain, palpable, and flagrant abuse of this discretion.”</p> <p>3. The fact that one has “ contracted to guarantee the payment of the fee to be paid by the prosecutor to an attorney employed to aid the solicitor-general in the prosecution of defendant ” does not make him a volunteer prosecutor.</p> <p>4. The judge properly refused to provide a new panel of jurors from which to strike, or to declare a mistrial.</p> <p>5. Before a special ground of the motion for a new trial will be considered it must be complete within itself and understandable without reference to other parts of the record.</p> <p>6. There is some evidence to support the verdict.</p>

<p>Conviction of manslaughter; from Worth superior court — Judge Eve. August 16, 1921.</p>

<p>Similarity of sound of the exhaust of the automobile was a circumstance which could be considered by the jury, in connection with other circumstances, as tending to show the identity of the accused, where it was testified that the robbery in question was committed at a certain drug-store by persons who came to it in a party of three in a Ford cut-down car, and where a witness, who said he was in the prescription room of the store at that time and did not then see them or the car, testified that about thirty minutes before that time he saw the accused come to the store and leave it in a Ford cut-down automobile, that on each of these occasions he heard the exhaust of the automobile, and that on the second occasion “ the exhaust sounded very much like the first — sounded like the cut-off, or whatever you call it, was open;” and the court did not err in admitting the testimony as to this similarity of sound.</p> <p>A verdict supported by some evidence and approved by the trial judge can not be set aside by this court because of alleged insufficiency of evidence.</p>

<p>Action for damages; from city court of Albany — Judge Clayton Jones. February 14, 1921.</p>

<p>Complaint; from city court of Atlanta — Judge Beid. October 8, 1920.</p>

<p>Action for damages; from Richmond superior court — Judge Henry C. Hammond. March 23, 1921.</p>

<p>Complaint; from Lamar superior court — Judge Searcy. March 21, 1921.</p>

<p>Complaint; from city court of Nashville — Judge Henson presiding. March 28, 1921.</p> <p>The evidence admitted over objection, referred to in the decision, is as follows: J. W. E. Powell: “ I had reasons to believe that my lot of paint was just like those that were not at all satisfactory. I have not heard of but one lot that was used that was satisfactory; the men that put the paint on the hotel told me that it was no account. It seems from the court calender that there was a good many people that thought that it was no good. All I know about the paint put on my house is what my little boy said. ” ' Jim McKinnon: “ I put some of this liquid cement on Mr. J. IT. Anderson’s house. I do not know it was this Goodyear cement paint. It was some Mr. Yates sold. ” Mallie Shaw: “ I bought some paint from Standard Paint & Lead Works, through Mr. Yates and Mr. Bean. They told me that 55 gallons of the paint would cover my house, and it would not cover but little more than half of it. In order to .finish it, I had to send for another shipment. Before the last shipment come, I saw it was coming off of the roof; I would not open the last shipment. This shingle I hold come off of my roof. The paint come off of the shingles, and left more cracks than there was before. It made my house look worse than it did before it was put on it. It was worthless and damaged my house.” Joas A. Alexander: “The liquid cement I placed on my roof was of absolutely no benefit. If you were to give me the paint and hire a man to put it on free of charge, I would not let him put it on. It was the most worthless stuff I ever saw in my life. I come in an ace paying for mine.”</p>

<p>1. The court did. not err in admitting the testimony of a physiean in reference to the opinion given by him as to whether the bullet wound inflicted by the defendant upon one of the plaintiff’s witnesses, who claimed to have seen the homicide, had entered from the front or the rear of the witness. This evidence was admissible for what it was worth, although the physician testified that he hardly thought he was entitled to an opinion, for the reason that he did not examine the wound at the point of exit; since the question as to whether a witness in a particular instance is qualified to give an opinion is to be determined by the court, and is not governed by the opinion of the witness himself as to his competency. Glover v. State, 129 Ga. 717 (9), 718 (59 S. E. 816). The witness, although an expert, gave his reasons for Ms opinion, as follows: “ I can give you my best opinion as I got it from that. careless examination. I saw the front of it. Where the bullet goes in, it is always a cleaner cut wound; where it comes out it lacerates the tissues. In other words, the point of entrance is clean cut and smooth, and the point of exit is more ragged. The front part of the wound on Josh Terry’s head looked pretty smooth to me. I will not say positively about the back part of it, because I was rather careless about my examination. There were blood clots in the back of his hair, but I am not prepared to say that the back part of the wound was lacerated I will say positively that the front part of the wound was smooth. I have never seen a bullet wound with both a smooth entrance and a smooth exit. The entrance is always smooth.”</p> <p>2. Exception is taken to the following portion of the charge: “Not only must the killing be in self-defense, but it must be necessary to prevent the attack and injury amounting to a felony on the person killing, or the person killing must really and honestly so believe at the time, and in good faith have acted upon such belief and not in a spirit of revenge.” The defendant contends that, since, under the Penal Code (1910), § 70, self-defense always justifies, the court improperly placed a double burden upon defendant in thus instructing the jury that there were other things which had to concur in order for the defense to excuse the homicide. This excerpt from the charge, while giving in disjunctive form the doctrines of justification as embodied in both sections 70 and 71 of the Penal Code, does not confuse them. Self-defense does justify, but the slayer must be thereby protecting himself from the commission of a felony upon his person, and the taking of human life is not justified as being in self-defense where it is only some lesser injury which by the killing is sought to bq avoided. Simmons v. State, 79 Ga. 696 (3) (4 S. E. 894); Battle v. State, 103 Ga. 53 (4), 54 (29 S. E. 491). As was also in substance further charged in the disjunctive form, the defendant would have been justified if the circumstances were such as to excite the fears of a reasonable man that such a felonious attack upon his person was about to be perpetrated, and in the killing he really acted under such fears and not in a spirit of revenge.</p> <p>3. The judge charged the substance of the first sentence of section 4425 of the Civil Code (1910), as follows: “The word ‘homicide,’ used in this section, shall be held to include all cases where the death of a human being resulted from a crime or from criminal or other negligence.” While no issue of negligence was in any way involved, either under the pleadings or the evidence, “ it was not cause for a new trial that the judge read in charge to the jury, a code section part of which was applicable to the case under consideration and part not, it not appearing that the reading of the inapplicable part was calculated to mislead the jury, erroneously affected their verdict, or was prejudicial to the rights of the complaining party.” Eagle & Phenix Mills v. Herron, 119 Ga. 389. (3) (46 S. E. 405).</p> <p>4. Exception is taken to the following excerpt from the charge: “ After you have fixed upon the amount representing the yearly earnings of the deceased and the number of years he would probably have lived, you can by multiplying the one by the other determine approximately what would have been the gross amount of the earnings of his whole life. The gross amount must be reduced to its present cash value, which would necessarily be less than the gross amount, and which may be arrived at by dividing this gross sum by one dollar plus the legal rate of interest, 7% per annum, for the expectancy years of the deceased.” The exception is without merit, and is admittedly controlled by the ruling of this court, in Standard Oil Co. v. Reagan, 15 Ga. App. 571 (5), 589, 591 (84 S. E. 69). “The present worth of a debt payable at some future period without interest is such a sum as being put at interest will amount to the debt at the period when the debt becomes due.” Sanford’s Higher Analytical Arithmetic, 226. The rule given by this author to obtain the present worth is to “ divide the given sum or debt by the amount of $1 for the given time at the given rate; the quotient will be the present worth.”</p> <p>5. The rule which precludes a witness in a ease such as this from proving the amount of damages by a mere general statement would not exclude testimony as to the annual value of the decedent’s -services, especially where, as here, the witness, who is subject to cross-examination, goes into details as to the facts upon which his opinion is based. Central of Ga. Ry. Co. v. Hartley, 25 Ga. App. 110 (4), 112 (103 S. E. 259) and cases cited. See also Wrightsville & Tennille R. Co. v. Gornlo, 129 Ga. 204, 206 (58 S. E. 769).</p> <p>6. The exception taken to the reference by the court to the life expectancy, under the annuity table, “ of an average person of the age of deceased ” could not justify a reversal on the theory that the court thus inferentially fixed the expectancy of the deceased, especially since the court had already charged that the tables were not binding upon the jury, and that they were not obliged to use them at all, and had previously instructed them that, “ if in the case at bar the expectancy of the deceased would, under the evidence, have probably been greater or less than that of the average man, the amount of the damages to be allowed, if any, should be diminished or increased accordingly.</p> <p>7. The remaining grounds of the motion for a new trial are without merit. In the judge’s .statement of the plaintiff’s contentions he did not err in including her contention that the deceased was an expert automobile mechanic. A number of witnesses testified as to his mechanical ability in that line. See Napier v. Strong, 19 Ga. App. 401 (4), 409 (91 S. E. 579). Nor was it error, especially in view of such evidence, to charge upon what might have been the increased earning capacity of the decedent. The remaining ground of the motion, upon which counsel appear especially to rely, is treated in the opinion.</p>

<p>Action for . damages; from city court of Savannah — Judge Freeman. March 7, 1931.</p> <p>From the petition as amended it appears that the defendants, acting under a contract made with the county authorities of Chatham County, were engaged in surfacing, a portion of a public highway known as the Augusta road. For the purpose of closing the highway to traffic the defendants, through one of their servants, moved up a distance of about two miles beyond the point where the work was going on, and stretched a “ small cable wire ” across the road, at just such a height as would catch the top of an automobile moving along the road at that point. It is’ alleged that the plaintiff did not know of such obstruction and had no reason to anticipate its presence, and “ there was no other barrier or obstruction of any kind or character, or anything else, to indicate that said public road was closed, or to call attention in any way to the fact that said wire was so suspended;” and that, not seeing the wire until to late to avoid it, he ran into it with his car, and thereby received specified injuries.</p>

<p>1. It being otherwise proved, without dispute, that notice of the same tenor and effect as that contained in the carbon copy of the letter excepted to was given by the plaintiff to the defendant prior to incurring the items of expense sued for, the admission of such copy, if illegal, should be treated as harmless.</p> <p>2. The verdict in the amount sued for, to wit, $753.80, consisting of items which, under the undisputed evidence, were subject to exact calculation and which must have been so calculated and found by the jury, and being only authorized in the amount of $601.95, the judgment will stand affirmed if the plaintiff in the court below shall write off the unauthorized excess; otherwise the judgment is reversed.</p>

<p>Action on contract; from city court of Atlanta — Judge Reid. March 9, 1921.</p>

<p>An equitable petition, filed in the superior court, by its allegations was essentially a petition for specific performance of a certain contract, with prayers for incidental relief; and it contained also a prayer for a specific money verdict based upon the binding effect of the contract in question. The prayers were stricken by amendment, except those which asked for a money verdict and for the further finding that the contract sued upon “ is binding according to its terms and provision ” upon the defendant. A verdict was found in accordance with these prayers, and a writ of error was sued out to the Supreme Court. On considering the record that court ruled that the case be transferred to the Court of Appeals, as one at law based on contract. Held: The verdict in substance and effect was for the specified sum of money, and that portion thereof relating to the contract may be treated as surplusage.</p>

<p>Complaint; from Muscogee superior court — Judge Munro. May 19, 1931.</p> <p>The case came to this court on exception to the appointment of an auditor, the plaintiff in error (defendant in the court below) contending that he was entitled “ to have the issues made by the pleadings tried by a jury, and not by an auditor.”</p>

<p>Action for damages; from Chatham superior court — Judge Meldrim. April 5, 1921.</p>

<p>Action for damages; from Fulton superior court — Judge ' Pendleton. June 13, 1921.</p>

<p>Action on contract; from city court of Zebulon — Judge Dupree. December 15, 1920.</p>

<p>Complaint; from Butts superior court — Judge Howard presiding. July 10, 1930.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. December 9, 1920.</p>

<p>Complaint; from city court of LaGrange — Judge Duke Davis. March 22, 1921.</p>

<p>Action for damages; from Warren superior court — Judge Shurley. April 7, 1921.</p>

<p>Attachment; from Pulaski superior court — Judge Eschol Graham. April 9, 1921.</p>

<p>Action for damages; from Mitchell superior court — Judge R. C. Bell. April 13, 1921.</p>

<p>Action for damages; from Walker superior court — Judge Wright. March 8, 1921.</p>

Complaint; from Wilkes- superior court — Judge Sliurley. May 28, 1921.

<p>Action for damages; from Elbert superior court — Judge W. L. Hodges. May 23, 1921.</p>

<p>1. A license expressly given by one having authority, or arising by implication from custom or practice, under which a person would have the right to ride upon the ears of a railroad company without the payment of fare, presumptively applies to those ears designed and used for the transportation of passengers. Under such license no right would arise which would authorize one to ride upon cars not designed and used for the carriage of passengers.</p> <p>2. In an action against a railroad company for damages arising from personal injuries sustained while riding, by permission or upon the invitation of an employee, ón a conveyance of the company palpably not used or designed for the transportation of passengers, the onus is on the plaintiff to show that the employee had authority from the company to permit him so to ride, or that it was the custom for persons so to ride, known to the officials of the company having charge or supervision of the matter; the presumption, in the absence of such proof, being that the plaintiff had no right to be there, and that he was, therefore, a trespasser.</p> <p>3. Where the plaintiff’s husband, at the time of his homicide, was riding, by the invitation, express or implied, of the conductor, on the top óf a freight-car, which was manifestly not intended to be used, for the transportation of passengers, which fact was known, or by the exercise of reasonable diligence would - have been known, to the decedent, no right of action would result, in the absence of evidence tending to show willful and wanton injury.</p>

<p>Action on contract; from Seminole superior court — Judge Worrill. June 28, 1921.</p>

<p>Action for damages; from Ben Hill superior court — Judge Gower. May 17, 1921.</p>

<p>Paragraphs 1, 2, 4, 8, 9, 10, 11, 12, and 13 of the amendment to the petition were improperly stricken on demurrer thereto, touching their relevancy to the measure of damages for failure to deliver to the plaintiff, “f. o. b. Donalsonville, Ga.,” two carloads of peanuts alleged to have been purchased from the defendant by the plaintiff for use in the manufacture of peanut butter and confectionery at Suffolk, Virginia, which manufactured products, it was alleged, the plaintiff contracted to sell at prices based upon the price at which the defendant had contracted to furnish the peanuts and which was lower than the market price that the plaintiff afterwards had to pay to others in order to obtain peanuts to manufacture its products and carry out its contracts for the sale of such products.</p>

<p>Certiorari; from Bibb superior court — Judge Mathews. January 18, 1921.</p>

<p>Action for damages; from Glascock superior court — Judge Walker. December 30, 1920.</p>

<p>Waiver of the defects in the soda-fountain bought by the defendant was shown by the evidence, from which it appeared that after he had discovered its defective condition he executed and delivered to the seller promissory notes for the property and that he paid some of them. The evidence demanded a verdict for .the plaintiff. Bloodwoeth, J., dissents.</p>

<p>Attachment; from city court of Hinesville — Judge W. C. Hodges. February 12, 1921.</p>

<p>Action for damages; from city court of Macon — Judge Gunn. April 15, 1921.</p> <p>Application for certiorari was made to the Supreme Court.</p> <p>The plaintiff alleged that he was employed by the defendant at its shops in the city of Macon, as a blacksmith, and, together with a negro helper, was engaged in repairing an engine-spring that had been and was to be used on an engine engaged in interstate commerce, and that while he and his helper were so engaged in interstate commerce he sustained a rupture, for which injury he sued. He alleged: that the spring was composed of about twenty leaves, one or more of which had been broken and had to be replaced; that he and his helper had replaced the leaves and were proceeding to band them together when he was injured without fault on his part; that it was necessary to compress the leaves together with a machine called a bander which is operated with atmospheric pressure, and that it was necessary first to heat the spring *red hot and, while it was malleable on account of being heated, place it in the bander and apply.the pressure; that on this occasion, after the spring had been heated to the proper degree and was ready to go into the bander, he took hold of the end of the spring next to the bander, the negro helper took hold of the other end, and the next thing to be done was to move it into the bander, which stood a few feet away; that the helper knew what he had to do and what he was expected to do, and that was to push with his whole strength while petitioner pulled at his end of the spring; that it required the strength of both to move the red-hot spring and put it in proper position; that the helper, instead of doing his duty, failed to push the machine as he should have done, and left the burden on petitioner of moving it into its proper place in the bander; that petitioner, knowing that the spring should then be placed in the bander, put himself to extra exertion to accomplish it, and in so doing he was severely ruptured; that while he and his helper were required to use their strength in putting the spring into the bander, petitioner was required, to direct its course and see that it was put in the bander properly, and for this reason the helper was required to do most of the moving, but that the helper failed to do his duty in this respect; that all this was the work of a few seconds and he had no time to reflect; and, as soon as he realized that the spring was not being moved from the rear end as it should have been, he applied his whole strength to the task, thereby injuring himself as aforesaid. Petitioner . charged that the defendant was guilty of negligence which contributed to his injury, “ (a) in not furnishing him with a fellow-servant who would do his duty and perform his part -of the task set for their joint exertions; (&) in that his helper failed at the proper time and in the proper way to assist him and do his part of the joint task; (c) in that his helper failed to do his part of the task assigned to them both but without warning petitioner that he would not or could not assist him or do his part of the task. ” The defendant demurred generally to the petition and moved to dismiss it for the reason that no cause of action was set forth. The demurrer was overruled and the defendant excepted.</p>

<p>Action for damages; from city court of Macon — Judge Gunn. March 25, 1921.</p>

<p>Complaint; from city court of Carrollton- — -Judge Hood. June 17, 1921.</p> <p>J. T. Bradley, for the use of J. L. Thomasson, sued LeBoy Hirshburg and J. J. Thomasson jointly on certain promissory notes, which (as appeared from an exhibit added by amendment) were payable to the order of J. T. Bradley, were signed, “J. L. Thomasson, J. J. Thomasson” (the name of J. J. Thomasson being signed under that of J. L. Thomasson), and were indorsed “LeBoy Hirshburg, Carrollton, Ga., Jan. 7th, 1918.” “For value received, without recourse, I hereby transfer and assign the within note to J. L. Thomasson. J. T. Bradley.” The notes were dated October 15, 1917. Hirshburg demurred on the ground that no cause of action is set out, “ as said petition, as amended by attaching copies of the notes upon which said suit is based, shows that this defendant was only an indorser on said notes, and that J. L. Thomasson and J. J. Thomasson ivere the makers and principal obligors in said notes; and that said notes have been paid off and discharged by said J. L. Thomasson, one of the makers and principal obligors in said notes, and that said notes are fully paid off and discharged, and thereby this defendant not liable further on said notes.” The demurrer was amended as follows: “Defendant further demur's and says, as it appears J. L. Thomasson was principal and J. J. Thomasson his security, and for said reason it should be dismissed. ” J. T. Bradley having died after the filing of the suit, his executor was made plaintiff in his stead, and the demurrer was amended “ by alleging the papers on their face show no rights in J. T. Bradley or his executor. ” The demurrer was overruled, the trial of - the case resulted in a verdict against Hirshburg, and he excepted.</p>

<p>Complaint; from city court of Bainbridge — Judge Spooner. July 25, 1921.</p>

<p>Action for damages; from Colquitt superior court — Judge Thomas. August 2, 1921.</p> <p>The petition is against the City of Moultrie and the Atlantic Bitulithic Company. It alleges, in substance, that the Atlantic Bitulithic Company contracted to pave certain streets in the City of Moultrie under the direction, supervision, and control of officers and agents of the city, and, in the performance of this contract and under the direction, supervision, and control of the city, undertook to pave Main street and to curb and pave the sidewalk in front of the plaintiff’s lot, upon which was his dwelling house. This street extends north and south from this property, and, since paved by the defendant, is up grade from it. Three cross-streets run east and west near this property, one pf which is its northern boundary, and they are up grade from it extending west. At the corner of the plaintiff’s property the defendants have made a junction point for five different storm-sewers, which empty into this junction point from all directions except from the east. It is alleged that “the defendant negligently and with utter lack of care and due diligence, and 'with utter disregard of the property rights of . . petitioner ' and his family, have left open the means of escape of all water and refuse matter that may be poured into said sewer junction point, so that all of said sewers pour their contents into an open ditch located upon the north side of petitioner’s property, and let loose such waters or refuse matter to flow where it may over . . petitioner’s property; . . that all of the water which hows down the hills and through the streets above mentioned hows to and collects upon the south side of said main street next to petitioner’s said residence, and remains there until taken into said storm-sewer by one small opening located on the east side of said street and about one hundred feet south of petitioner’s said residence; that in order to prevent such surface water flowing over petitioner’s property from the front, and further to prevent the same from fLowing in like manner over the property of petitioner’s neighbors, the defendants raised the sidewalk in front of petitioner’s said residence about two and one half to three feet above the height of said sidewalk prior to the paving and curbing of the same by the defendants. ”</p> <p>Paragraph 6 alleges negligence and disregard of the plaintiff’s property rights, and of the comfort and health of himself and his family, in the following particulars: (a) The raising of the sidewalk left plaintiff’s residence in a low bottom place, and in order to get into and out of the residence it was necessary to climb down from the sidewalk three or four feet to the porch and 40OT-steps of the residence, or to climb up from the doorsteps to the sidewalk. It is impossible for him to drive on to his premises with his automobile, and it is impossible for him to reach his garage with said car except by the erection and construction of a passageway built up from the edge of the sidewalk on to his property, leading to his garage. The building of such a passageway will cost him at least $250. (6) The defendant did not construct a sufficient number of openings into the storm-sewers, for the water collects in front of plaintiff’s residence and backs up against the sidewalk into a great body and remains there for a considerable length of time and until the one small opening hereinbefore designated can take up the surface water and empty it into the ditch on the east side of plaintiff’s property, (c) The grade is down from Main street east, and great quantities of water and refuse matter collected by the various storm-sewers empty into said ditch and run to the bottom of the hill, and form a great body of water which backs up from the rear on to plaintiff’s property. The plaintiff's land, before the acts complained of were committed, was dry and suitable for the building of homes or any other purpose, but, since the collecting of said body of water thereon and adjacent thereto, said land is under water, is muddy and boggy, and is totally worthless for any purpose. There is no way provided by the defendants for said hody of water to be taken away from plaintiff’s property, in that east of said body of water, is a heavy grade constituting the railroad-track of the Atlantic, Birmingham & Atlantic Railway Company, (d) The grading of said street so as to put plaintiff’s property at a point down grade from the south, west, and north was grossly negligent, in that the streets could and should have been paved with such a grade as to take all of such water to other places. They should have been paved with such grades that the great volume of water would have been separated and taken away by storm-sewers to different places rather than have it all collect at the point located on the plaintiff’s property, (e) The construction of said storm-sewers so as to pour the water and other refuse matter upon the surface on the north side of plaintiff’s property was done by defendants in utter, disregard of plaintiff’s rights, and was wholly unnecessary, in that some proper'sewer should have been constructed to connect with said sewer junction point for the purpose of backing such water under the surface, away from plaintifffs property; the construction of such paving, curbing, and storm-sewers, was negligently done, in that said water and refuse matter are emptied by such sewers into said ditch and upon the surface at a point within six or eight yards of plaintiff’s dining-room, and the same pours over said ditch on the sidewalk into the yard and under the plaintiff’s residence. (/) The waters from such storm-sewers are collected from the surface of the streets over a considerable portion of 'the City of Moultrie, covering an area of from probably' fifteen to twenty acres. Such water, in pouring over the surface of the ■ streets of the city, collects various waste matters which may be left or placed upon the streets, and takes them into the storm-sewers at various points, and they are collected by said sewers and deposited into said open ditch and into said body of water, so that said ditch, the sidewalk adjacent thereto, and the entire surface on which the water may run or collect are saturated with the various decaying matters contained in such waters; and after any rain and after the waters have passed over said ditch and on to the plaintiff’s land, said ditcli and the land where the water -passed or is collected gives off an offensive, poisonous, obnoxious odor, and contaminates and makes foul and filthy the atmosphere whicii plaintiff and his family are forced to breathe. The body of water collected east of plaintiff’s residence and on and adjacent to plaintiff’s land remains stagnant, insanitary, and filthy, and gives off an obnoxious and offensive odor, which saturates the atmosphere, thus robbing plaintiff and his family of convenience and comfort to which they are entitled, and endangering their health and life.</p> <p>Paragraph 7 alleges: There never was any necessity or good reason for the making and construction of such paving and curbing in the manner herein indicated, or for maintaining the same in such condition, or for maintaining said open ditcli and body of stagnant, filthy .water. The same is a nuisance injurious to plaintiff’s property and to the health and comfort of himself and his family, and is such a nuisance as is permanent in character. The defendants constructed such paving and curbing and the City of Moultrie maintains the same in such condition wilfulfy, wantonly, and negligently, with full knowledge of the surroundings and in disregard to the conse- • quences to plaintiff. Ever since the completion of such Avork by the defendants the same, constructed in the manner herein described, has been a nuisance, in that the plaintiff and his family have constantly suffered and have been robbed of the comforts and conveniences to which they are entitled. The conditions creat-' ed by the defendants are almost unbearable, and it is almost, impossible for plaintiff and his family to live in said residence, the physical and mental suffering being practically unbearable at various times.</p> <p>Paragraph 8 alleges: Because of the acts of the defendants the rental value of plaintiff’s property has been decreased in the sum of $3,000, and such decreased rental Auilue is permanent in character. The tract of land described has been rendered totally worthless and is now without market value, and plaintiff has thus been injured and damaged in the further sum of $1,500.</p> <p>The 9th paragraph alleges that 30 days before the filing of this suit the plaintiff “filed his claim with the mayor and council of the City of Moultrie, ” and the defendants have failed and refused to pay his said claim.</p> <p>The petition concludes with a prayer for judgment against the defendants and each of them for $4,500.</p> <p>The demurrer of the City of Moultrie is on the grounds: (1) No cause of action is set out against this defendant. (2) There is a misjoinder of parties defendant. (3) That part of paragraph 6(a) wherein it is alleged that a passageway would cost $250 is demurred to as being irrelevant. (4) That part of paragraph 6 (/) which alleges that “ various decaying matters ” are contained in said waters is demurred to because it does not specify plainly the various matters. (5) Paragraph 6(/) is demurred to because it does not state plainly what conveniences and comforts plaintiff’s family is robbed of, and does not show how the life and health of the plaintiff are endangered. (6) The allegations of paragraph 7 concerning mental and physical suffering are demurred to as being irrelevant. (?) The petition nowhere states the time of the alleged negligence or injury. (8) Paragraph 8 is demurred to because it does not give the present or 'past rental value of the property, and does not show how the rental value is arrived at. (9) Paragraph 8 is demurred to because it does not state the market value of the land before the injury occurred. (10) Paragraph 9 is demurred to because it is not alleged that said notice gave the time, place, and extent of the alleged injury.</p> <p>The general demurrer was sustained and the petition dismissed in an order which stated that this was done “upon the authority of City Council of Augusta v. Cleveland, 148 Ga. 734, and Harrison Company v. City of Atlanta, [26 Ga. App. 727] 107 S. E. 83.”</p>

<p>Forfeiture of bond; from city court of Floyd county — Judge Nunnally. August 2, 1921.</p>

<p>A conviction of assault with intent to rape was authorized by the evidence; and the court did not err in overruling the motion for a new trial.</p>

<p>Indictments for carrying pistol; from Randolph superior court — Judge R. C. Bell presiding. August 13, 1921.</p>

<p>Indictment for assault and battery; from Randolph superior court — Judge R. C. Bell presiding. August 12, 1921.</p>

<p>Indictment for sale of liquor; from Eloyd superior court — Judge Wright.</p>

<p>Indictment for possessing intoxicating liquor; from Floyd superior court — Judge Wright. August 30, 1931.</p> <p>No definition of “reasonable doubt” was given by the judge in connection with his charge to the jury as to the burden on the State to establish the defendant’s guilt beyond a reasonable doubt; and failure to define’ this .term (though there was no written request so to do) is complained of in the motion for a new trial.</p> <p>An instruction to the jury that they were the exclusive judges of the credibility of all the witnesses is complained of in the motion for a new trial as not being sufficiently full; and it is contended that the court (though there ivas no Avritten request so to do) should have gone further and charged that the jury “ should believe those witnesses having the best opportunity to know the facts and the least inducement to swear falsely,” and should have added other specified instructions which are substantially in terms of section 5733 of the Civil Code (1910).</p> <p>A boy testified that he found hidden in a pasture, near the defendant’s place, pint bottles of whisky, and afterwards hid some of the whisky in the pasture and some in a branch, and that the defendant came there and asked if the witness had seen anybody with “ his stuff, ” and explained that he meant whisky; the witness “ got it ” and the defendant “ put it in his coat. ” This was contradicted by the defendant in his statement at the trial.</p>

<p>Indictment for manufacture of intoxicating liquor; from Lee superior court — Judge Littlejohn. May 28, 1921.</p>

<p>Indictments for carrying pistol; from Randolph superior court — Judge R. C. Bell presiding. August 13, 1921.</p>

<p>Conviction of assault; from Monroe superior court — Judge Searcy. September 17, 1921.</p>

<p>Indictment for making liquor; from Murray superior court —Judge Tarver. September 17, 1921.</p>

<p>1. An indictment for receiving stolen goods', which alleged the owners of the goods to be “Audley Hill & Company, a corporation,” is sufficiently supported by proof that the goods belonged to Audley Hill Company, the evidence showing that both these names were applied to the same concern.</p> <p>2. Although the indictment against the principal alleged that the larceny was committed on December 2, and the indictment against the accessory alleged that the stolen goods were received by him on December 4, and the proof showed that the larceny was committed on the latter date, this does not show that the principal “ committed two acts of larceny,” and that the accessory had been convicted of the one with which the principal had no connection. The time alleged in an indictment is immaterial, provided it is within the period fixed by the statute of limitations for the particular offense for which the accused is being tried.</p>

<p>The act of 1919 penalizing the making, drawing, uttering, or delivering of worthless checks, drafts, or orders, for the payment of money upon any bank, or other depository (Ga. L. 1919. p. 220), does not cover a post-dated check accepted by the payee prior to the date of the cheek and “ with distinct knowledge that the paper constitutes nothing more than a promise that, on the future date specified as the day of payment, the drawer will have in the bank the funds necessary to meet the check.”</p>

<p>The allegations of the indictment, which charged the accused with having offered to pay money to a certain sheriff if the sheriff would agree to allow him to make and sell alcoholic liquors, and agree not to interfere .with him in the making and selling of such liquors, and agree not to prosecute him for any violation of the laws of Georgia in reference to the making and handling of such liquors, sufficiently charged a crime against the laws of this State.</p>

<p>Accusation of misdemeanor; from city court of Miller county — Judge Geer. -September 24, 1921.</p>

<p>Accusation of larceny; from city court of Madison — Judge Lambert. September 17, 1921.</p>

<p>Accusation of possessing liquor, etc.; from city court of Polk county — Judge Tison. September 19, 1921.</p>

<p>Indictment for attempt to burn dwelling house; from Warren superior court — Judge Shurley. September 16, 1931.</p> <p>Ivey was charged with having set fire to an unoccupied dwelling house on a farm, with intent to burn it. From the evidence it appears that he had occupied the house as tenant of M. F. Harrison, who rented the farm from the owner, and that about a week after he had moved from it the fire was discovered in it, and footprints, which witnesses testified they identified by certain peculiarities as his tracks, were found near it. Harrison testified, that about an hour after dark on a Thursday or .Friday evening he went to the yard of this house with his boys to catch two chickens that the defendant had left there, and he smelled fire, but he did not see any fire, and thought it might be merely the odor of an old house, and he did not go into the house, but on the following Saturday evening he discovered the fire in it, where an old sack bagging • sheet was lying on the floor partly burned, about ten or twelve feet from the fireplace; it was burned about two and a half or three feet one way, and perhaps fifteen inches the other way; a hole was burned through the floor, and one of the sleepers was burned; pieces of broom straw were found there, and it looked as if the handle of an old broom had been laid on the bagging sheet and fired. On cross-examination this witness testified: “It is probable that somebody might have been gambling in that house, and this sack might have caught on fire from a cigarette.” It was testified, that the tracks approached the house from the field of another property owner and crossed a ditch into a road which passed in front of the house at a distance of perhaps fifteen or twenty feet, but none of the tracks were seen in the yard of the house or going from the road to the house and back; “it was hard ground and Bermuda grass there;” tracks “going away, running,” about five or six feet apart, were discovered “just about where the track crossed the ditch;” there had been rain a few days before, and the tracks made a deep impression. “ This tracking” was done on Sunday, and on the same day the sheriff went to the house to which the defendant had moved, three or four miles from this house, and, according to the sheriff’s testimony, the defendant had on shoes when the sheriff drove his car up to the house, but was barefooted when the sheriff went into the house; the sheriff asked for his shoes and he brought to the sheriff a pair of shoes which the defendant’s father-in-law, who was present, said were not the defendant’s shoes, but his own. Another witness discovered under a pillow a pair of shoes which were wet, and which the defendant at first said he had not been wearing, but afterwards admitted were his shoes and had been worn by him and had made the tracks referred to; they were placed in the tracks and fitted them. It was testified that his explanation as to the tracks was that he was going past the house and saw a light in it, and thought Mr. Harrison might be there, and, as Mr. Harrison had threatened to shoot him, he turned around and ran back. Harrison testified that the defendant owed him money, and he took a part of the household furniture and all the corn, cotton, beans, and potatoes of the defendant, and the defendant still owed him, and he threatened to kill the defendant if it was not paid. The defendant, in his statement at the trial, denied that he set fire to the house; he said that he started there to get chickens he had left there, and when he got close to the house he heard a noise there and turned and ran back because he was afraid Mr. Harrison was there and would kill him, because Mr. Harrison had threatened to kill him.</p> <p>The motion for a new trial was based-on the usual general .grounds.</p> <p>The judge’s order overruling the motion is as follows: “ The within motion for new trial is overruled. I do this to prevent expense in another trial. The evidence, in my judgment, is barely sufficient to sustain the verdict, if sufficient, and I prefer that the Court of Appeals adjudicate the question of law, in the light of the facts, so as to prevent further trial, should a new trial be granted.</p>

<p>A conviction of the offense of selling or otherwise disposing of mortgaged property with intent to defraud was not authorized by the evidence.</p>

<p>Indictment for possessing liquor; from Fulton superior court — Judge Humphries. September 26, 1921.</p> <p>Application for certiorari was made to the Supreme Court.</p>

<p>Failure to charge the jury on the law of circumstantial evidence, without request, is not cause for a new trial, where a conviction of the accused is not wholly dependent on such evidence.</p>

<p>1. The offense of selling mortgaged property, as defined in section 720 of the Penal Code (1910), was sufficiently charged in the indictment, and the court did not err in overruling the demurrer.</p> <p>2. The indictment alleges that the accused “ executed and delivered to Lee Trammell Company, a corporation,” a mortgage on personalty. The name Lee Trammell Company imports a corporation, and it was not necessary to allege that it was a corporation; such an allegation is surplusage and need not be proved. “ The admission of secondary evidence tending to prove such allegation is therefore harmless error, where the corporate entity has not been in issue.” Ager v. State, 2 Ga. App. 158 (58 S. E. 374). Under this ruling the court did not err in allowing a witness to swear that the Lee Trammell Company was a corporation in 1918.</p> <p>3. The mortgage offered in evidence was not inadmissible for any reason urged in ground 2 of the amendment to the motion for a new trial.</p> <p>4. Grounds 3, 4, and 6 of the amendment to the motion for a new trial are not approved by the trial judge, and cannot be considered by this court.</p> <p>5. “ Grounds of a motion for a new trial should be complete within 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.” Bowen v. Smith-Hall Grocery Co., 146 Ga. 157 (4) (91 S. E. 32); Powell v. State, 25 Ga. App. 329 (3) (103 S. E. 174). This ruling disposes of ground 5 of the amendment to the motion for a new trial.</p> <p>6. There is evidence, to support the verdict.</p>

<p>Conviction of assault with intent to rape; from Muscogee superior court — Judge Munro. June 11, 1921.</p>

<p>Conviction of attempt to manufacture liquor; from Lincoln superior court — Judge Shurley. September 21, 1921.</p>

<p>Indictment for manufacture of liquor; from Lincoln superior court — Judge Sburley. September 21, 1921.</p>

<p>Action for damages; from Muscogee superior court — Judge Munro. June 27, 1921.</p> <p>The action was against a street-railway company, for injury to a passenger thrown from a car by a sudden jerk of the car. From his petition it appears that when the car reached a point about fifty feet short of the stopping place where he desired to alight, he signalled his desire to the conductor, who saw and understood it. The car was then running at a very rapid rate of speed,'— about fifteen miles an hour. The conductor signalled the motorman to stop the car at the street-crossing which was the plaintiff’s destination, and the motorman immediately began to slow down the speed' of the car in order that he might so stop it.- When the car was within about ten feet of the stopping place the plaintiff rose from his seat (which was the second back from where the motorman stood), in order to be ready to alight promptly from the car on its arrival at the stopping point. While the plaintiff was so standing the motorman so operated the car as to cause it to wabble and sway from one side of the track to the other, and to make a sudden, violent, unusual, and unnecessary jerk over to the left side of the track, which caused the plaintiff, who was standing on the right side of the car, to be thrown from the car to the ground and thus to receive injuries described. It is alleged that the plaintiff was without fault or negligence, that when he was thrown from the car he endeavored to catch hold of the hand-hold on the car to save himself, but could not do so, and that the defendant’s negligence in running and operating the car in the manner stated was the direct and proximate cause of his injuries. A general demurrer to the petition was overruled, and the defendant excepted.</p>

<p>Action on contract; from city court of Statesboro — Judge Proctor. July 13, 1921.</p> <p>Invalidity of the contract was the ground upon which the general demurrer to the petition was sustained, according to the briefs of counsel, the contention of counsel for the defendant being that the written contract sued on was void because it did not obligate the defendant to furnish any particular quantity of logs to be sawed for any stated period of time, or from any particular tract of land, or to furnish all the logs suitable for sawing on the particular place mentioned therein, and that proof of the allegations of the petition would necessarily involve adding by parol evidence to a written contract which was not ambiguous, and therefore not subject to parol interpretation. The material part of the written contract set out was: “That the party of the first part [Felix Parrish] agrees to furnish a location for sawmill on the Clark Place and place on log-bed ready for sawing according to orders all logs. Also to furnish orders in which to cut lumber, and to pay party of the second part for all‘lumber made at $9.00 per thousand and make settlement every two weeks. Party of the second part [J. E. Howard] agrees to move his mill on said location or locations and manufacture the lumber according to orders furnished as fast as possible according to prices named above. All lumber to be sawed and placed on the skids at mill. ” (Not dated.)</p> <p>The petition of J. E. Howard, as amended alleged that “on the — day of — 1920” he and the defendant, Felix Parrish, entered into this written contract; that the capacity of the said sawmill was about 3,000 feet per day; that in compliance with the terms of the .said contract the plaintiff moved his sawmill to said location and actually sawed for him from May 3, 1920, until July 27, 1920, 112,000 feet of lumber at $9 per thousand feet, on which sawing the defendant paid $954, and that the defendant complied with his part of the contract in furnishing the logs and the orders into which the lumber was cut, in the sawing of said 112,000 feet; that the defendant, without any cause and without fault of the plaintiff, refused to comply with his contract, after July 7, 1920, in that the defendant refused to furnish plaintiff with any more logs or orders for cutting logs into lumber, there being at said location at said time enough logs to make 388,000 feet of lumber; that plaintiff requested the defendant to furnish more logs and orders, informing him that plaintiff was ready and anxious to comply with his said contract, but the-defendant refused and notified plaintiff that he did not intend to put any more logs to plaintiff's mill; to plaintiff's damage in the sum of $583.54, for which plaintiff sues. Various items of damage are given in the petition.</p>

<p>Action on contract; from Chatham superior court — Judge Meldrim. May 25, 1921.</p> <p>Henrik Wallin sued the Mayor and Aldermen of the City of Savannah, for breach of contract. The contract, as set forth in the petition, shows that Wallin was engaged by the city as architect' for a certain building to be erected by the city. The material parts of the contract, so far as this suit is concerned, are as follows: “Art. 2. The said Wallin shall render complete professional services as architect for said building, consisting of preparing preliminary studies, plans, and sketches, which are to be restudied and revised by the said city or its agents until the same are satisfactory to and approved by the said city, after which said Wallin shall perform all services required or necessary in the matter of plans, working drawings, and specifications, detailed drawings, forms of building contracts, general direction and supervision of the construction of said building, certificates of payments due contractors and others performing labor or furnishing material in connection with said building, and all other services in connection with the construction of said auditorium building properly chargeable to an architect; all of which services to be the customary services of an architect as defined by the American Institute of Architects, except that in ease of conflict the express terms of this agreement shall be binding. ” “ Art 6. The said city is • to compensate the said Wallin for his services as architect, and is to pay as such compensation a sum equal to six per cent. (6%) of the total cost of the completed building, provided such sum does not exceed the maximum amount of commissions hereinafter named. Payments to the said Wallin are to be made as the work progresses, in the following order: Upon the acceptance of the preliminary studies, one fifth of the estimated fee; upon the completion of specifications and general working drawings one fifth additional, and an additional one fifth when the general contract, is let by the city, the remainder being due from time to time in proportion to the amount of service rendered. Until an actual estimate is received, charges are based upon the proposed cost of the work and payments received are on account of the entire fee, but in no event is the said Wallin to receive commissions of more than a total [of] eight thousand one hundred ($8,100.00) dollars, unless the plans, after acceptance by the city, arc, through no fault of the said Wallin, materially changed by the city.” “Art. 7. If, after the plans, specifications, and scheme of work have been accepted and approved by the city, through no fault of the said Wallin, material changes are made by the city in the same, or if the architect be put to extra labor or expense by the delinquency or insolvency of a contractor, the architect shall be paid for such additional services and expense in a sum to be agreed upon between the city and said Wallin. ” “ Art. 8. Should it be found, after the completion by the said Wallin of the preliminary studies and the plans and specifications and general working drawings for the construction of the auditorium, that a contractor acceptable to the city has not submitted a bid on the same in the amount within the sum set apart by the city for the construction of said auditorium by the city, then the said Wallin is obligated to make all necessary revisions and changes in the plans and specifications, working drawings, or other documents, as will enable the cost of the auditorium building to be reduced to a sum within the amount set apart by the city for the construction of said auditorium; all without extra payment ox compensation to the said Wallin; all revisions and changes in the plans, specifications, and working drawings made shall be submitted to and approved by the city.” The petition admitted that the plaintiff had been paid by the city on this contract $7,526.63, and showed that' under the contract he had performed other services, which entitled him to recover the sum of $1,186.37. The petition alleged also that by reason of certain facts set forth therein the plaintiff was entitled to recover the additional sum of $3,240. The defendant demurred to the petition generally and specially. The court overruled the general demurrer, but sustained the ground of the special demurrer attacking the plaintiff’s claim as to the $3,240 item. After striking this item the court passed an order limiting the plaintiff’s right of recovery to $1,186.37. To this order the plaintiff excepted pendente lite, and the case proceeded to trial. Upon the trial the plaintiff admitted that he was entitled to recover only $1,000 on account of the extra services for which the petition claimed $1,186.37. The court refused to allow the plaintiff to testifiy as to the $3,240 item, and, upon motion of the defendant’s counsel, directed a verdict in favor of the plaintiff for $1,000. To the action of the court in rejecting the 'plaintiff’s proffered testimony and in directing a verdict for only $1,000 the plaintiff excepted.</p>

<p>Action for damages; from Haralson superior court — Judge Irwin. July 16,1921.</p>

<p>Distraint; from Twiggs superior court — Judge Kent. July 2, 1921.</p>

<p>Proof of execution of the note sued on was not necessary, there being no plea of non est factum.</p> <p>The defense pleaded being payment, and no testimony being offered in support of this plea, it was not error to direct a verdict for the plaintiff.</p>

<p>1. An objection to the admission of evidence, upon the ground merely that it is “ inadmissible,” is equivalent to assigning no reason at all for its exclusion.</p> <p>2. A ground of a motion for a new trial excepting to the exclusion of testimony but not showing why it was excluded and not stating why its exclusion was error is not in proper form for consideration.</p> <p>3. Slight inaccuracies in the charge of the court, not likely to mislead the jury and cause them to render a verdict contrary to the facts and the general tenor of the charge, which fully and correctly stated the issues and in such a way as not to be prejudicial to the excepting party, are not cause for a new trial.</p> <p>4. The requests to charge, so far as legal and pertinent, were covered by the charge given.</p> <p>5. The doctrine of reasonable fears was fully and clearly given in charge.</p> <p>6. The exception to the charge of the court as a whole, as being disconnected and confusing, is too general and indefinite to present any question for determination by this court. The charge, taken as a whole, lays down the law correctly and is clear enough to be understood by a jury of ordinary capacity.</p> <p>7. The alleged newly discovered evidence is cumulative, and, moreover, was met by a counter-showing, and this court can not say that the trial judge abused his discretion in refusing to grant a new trial on account of such evidence.</p>

<p>Indictment for manufacture of liquor; from Lincoln superior court — Judge W. L. Hodges. September 3, 1921.</p>

<p>Failure to allege to whom the false representations were made was not a defect that could be reached by general demurrer to the accusation, and the court did not err in overruling the general demurrer.</p> <p>The record of the bill of sale was admissible as evidence, it being shown, without dispute that the original paper was lost and could not be found, and the record being sufficiently identified.</p>

<p>Indictment for manufacture of intoxicating liquor; from Taliaferro superior court — Judge Shurley. September 29, 1921.</p>

<p>Indictment for manufacture of liquor; from Pulaski superior court — Judge Graham. September 13, 1921.</p>

<p>Certiorari; from Pulaski superior court — Judge Eschol Graham. September 15, 1921.</p>

<p>Accusation of sale of liquor; from city court of Greenville — Judge McGraw. October 8, 1921.</p>

<p>Accusation of cheating and swindling; from city court of Eastman— Judge Eranldin. May 12, 1921.</p> <p>W. W. Bond, the prosecutor, testified: “On the 27th day of September, 1919, Tom Wynne, the defendant, contracted with me in Dodge county, Georgia, to perform for me, on the farm on which I now live, in Lee’s district of Dodge countyy, Georgia, services as a general farm laborer, such as I would require of him. lie was to have begun work under this contract on the 29th day of September, 1919, and was to have worked from said date six months under said contract. He was to get as his wages under said contract $1 per day for days actually made. . . At the same time that he made this contract with me I let him have as an advance on his wages the sum of $10 in money. . . He never worked any at all under said contract, nor has he paid back any part of said $10. I left home on Monday morning, September 29, 1919. . . Tom had not started to work when I left home. I went to Atlanta, and was there in a hospital for about ten days or two weeks. I never saw the defendant any more until I saw him here in the Eastman jail, in October, 1920, after I had sworn out a warrant and had him arrested. . . I asked him why he left and did not stay to do the work. lie told me at first that he left because he was afraid of his brother-in-law, who was then a hand on my place. . In January, 1931, he told me that the reason he left me was that he went up in Greene county, looking for his wife, who had left him when he was away in the army. He never complained of being sick. He was well and robust when he made the contract with me. . . and I know of no reason why he did not perform the labor he contracted to do. By reason of his failure to do the labor or to repay me, I have suffered a loss and damage of $10.” Virgil Frazier testified: “ I was a hand working on Mr. Wallace Bond’s place at the time Tom Wynne was working there, about the latter part of September, 1919. After Mr. Wallace left home to go to Atlanta that Monday morning Tom Wynne came to me and wanted to borrow a gun to take to the field with him. I didn’t have one, so he borrowed one from another one of the hands on the place. He went to work on Mr. Bond’s place on Sugar Creek. He worked there that day and till dinner time the next day. He asked about where Mr. Wallace was, and then said he was going to leave, and he then left, Tuesday after dinner, the next day after Mr. Wallace left for Atlanta on Monday. . . At the time he left home he was well, hardy, and able to work.” The defendant, in his statement at the trial, said: “ I worked on Mr. Bond’s farm just like he told me to do, on Monday and till Tuesday dinner after he left for Atlanta. That gun that Virge has just told you about was a gun I wanted to take with me to the field. I was working away over on the swamp, the other side of Sugar-Creek, and I was just naturally scared to work way back there by myself. That’s what Virge was talking about when he said I tried to borrow a gun from him. On Tuesday, after I found that Mr. Wallace had gone to Atlanta, and I didn’t know what to do, as he was all I had to depend on, I left and went up to Greene county, looking for my wife. I was aiming to come back and work with Mr. Wallace, but after I got up there I got sick, and then when I got well I had to go to work. I sure didn’t aim to beat Mr. Wallace out of his money when I got it from him.”</p>

<p>Action for damages; from Fulton superior court — Judge Ellis. December 23, 1920.</p>

<p>Complaint; from city court of Savannah — -Judge Freeman. April 11, 1921.</p>

<p>Action for damages; from Colquitt superior court — Judge Thomas. April 6, 1931.</p> <p>Application for certiorari was denied by. the Supreme Court.</p>

<p>Garnishment from city court of Savannah — Judge Freeman. April 11, 1921.</p>

<p>Action on insurance policy; from Haralson superior court — Judge Irwin. April 20, 1921.</p> <p>Helen M. Chandler sued the American Central Life Insurance Company upon an insurance policy for $1,000, of which she was beneficiary, that the defendant had issued upon the life of Luna E. Chandler. The pleadings and the agreed statement of facts upon which the ease was tried show that the policy was issued and delivered on July 28, 1915, that the first annual premium of $30.83, due July 28, 1915, was paid, that the second annual premium, due July 28, 1916, was paid, and that the third annual premium, due July 28, 1917, was not paid, but that on August 27, 1917, within the 31 days of grace allowed for the payment of premiums, the insurance company received at its home office a check drawn by Luna E. Chandler and payable to it, for the amount "of the premium, which check was dated at Tallapoosa, Ga., August 24, 1917, and was drawn on the Bank of Tallapoosa, Ga. Upon receipt of the check the company issued a premium receipt, dated August 27, 1917, and mailed it to the insured. The receipt is set out in full in the' plaintiff’s petition, and contains the following stipulation: “Any tender is accepted subject to the terms and conditions of the policy, and to ultimate cash payment.” On the face of the receipt are the number of the policy, the amount of the premium, and the name of the assured, and, at the bottom, the word “Over;” and on the reverse side appear several stipulations and the signatures of two officers of the company. The check was duly presented for payment, and payment was refused because the assured did not have sufficient funds on deposit with the drawee bank to cover the check. On September 15, 1917, the company sent to the assured a letter, which, among, other things, said: “ This cheek comes back to us to-day . . unpaid, and the policy therefore is in the same position as though your check had not been received. We are enclosing reinstatement application for your completion, which we ask that you return to us at once with your remittance, $30.83, plus interest at the rate of 6% per annum from July 28, 1917, to the date of such remittance, when the reinstatement application will have our prompt attention.” The company received no reply to this letter, and on September 28, 1917, sent to the assured a letter calling attention to the fact that the premium had not been paid, and requesting him to forward $30.83 plus interest from July 28, 1917, and also to sign the reinstatement application which was enclosed. The assured did not reply to either of the letters, and took no action in regard to the premium or check. On August 27, 1917, the date on which the check was received by the company in Indianapolis, the assured had on deposit in the Bank of Tallapoosa, subject to cheek, $5.29; and from August 27, 1917, to November 28, 1917, the assured’s account with the bank was either overdrawn or amounted to less than $30.83. The assured died on March 16, 1918, and proofs of death were furnished to the company by the beneficiary, and payment of the policy was refused by the company. Under the terms of the policy, it would not have had any extension-insurance value until after the payment of the third annual premium. On motion of the defendant’s attorneys the court directed a verdict for the defendant.</p>

<p>Action for damages; from Chatham superior court — Judge Meldrim. April 15, 1921.</p> <p>Mrs. Waters sued,the mayor and aldermen of Savannah for damages, alleging, in brief, that an automobile in -which she was seated, and which was being driven at night by Mr. Edgar Moler at the moderate rate of speed of about eight or ten miles an hour in a named street of that city, went into a gully in a described part of the street, and, before the driver could recover from the shock, went into another and deeper gully, and she was thrown from the automobile and suffered consequent injuries described; that the gullies had been worn and washed across the roadway and had been there long enough to put the city on notice of their existence, to wit, for more than a month; that no light, barricade, or other protection had been placed there to apprise drivers of the danger; that her injuries were caused by the defendant’s negligence, (1) because the defendant did not furnish a safe and suitable street for the driving of an automobile, and (2) because the defendant had permitted the street at that point to become dangerous to persons driving an automobile; and that the plaintiff was in the exercise of all ordinary and reasonable care and diligence, and did not know of the dangers and defects in the street, and could not have ascertained them in the exercise of ordinary care. Compliance with the statutory requirement as to notice of her claim was alleged.</p> <p>The defendant demurred to the petition generally, and on special grounds, attacking the allegations as to damages as insufficient, and contending that the allegations as to negligence of the defendant were a mere conclusion of the pleader, and that the paragraph as to the care exercised by the plaintiff was insufficient,, because there was no allegation that the driver exercised such care, or did not know of the alleged defect or could not have discovered it in tire exercise of ordinary care.</p>

<p>Action for damages; from city court of Americus — Judge Harper. May 9, 1921.</p> <p>Application for certiorari was denied by the Supreme Court.</p> <p>The action was for $739.05, the alleged value of a wardrobe trunk and contents, which had been checked as the plaintiff’s baggage on a ticket over the .line of the Central of Georgia Railway from Americus, Georgia, to Macon, Georgia, and the loss of which the defendant admitted. The only defensfe set up was, that, under the act of Congress of February 4, 1887, to regulate commerce (24 Stat. 379, Comp. Stat. § 8563; 4 Fed. Stat. Ann. (2d ed. 337), as amended by the Carmack amendment of June 29, 1906 (34 Stat. 595, § 7; Comp. Stat. §§ 8604, 8604 aa; 4 Fed. Stat. Ann. (2d ed.) 499), and by subsequent legislation, the carriage was interstate commerce, although the initial movement to Maóon was intrastate under a local ticket, because it was intended that the baggage should move from Americus to Greenville; South Carolina; and that the shipment was, therefore, controlled by rules 10 and 11 of the baggage tariff for southern territory, filed by the carrier with the interstate-commerce commission. These rules limit sucli liability of the carrier to $100, unless a greater value is declared by the passenger at the time of delivery to the carrier, and an additional payment at the rate of 10 cents is made for each $100 or fraction thereof above such maximum value. It is admitted that no such excess was declared, nor any payment therefor made to the carrier. While the evidence is undisputed that the passenger left Americus with the intention of returning to her home in Greenville, South Carolina, and that, after arriving over the Central of Georgia Railway at Macon upon a local ticket to that point, she purchased (on a date not disclosed) a ticket to Greenville, and obtained a new baggage-check, routing her trunk over the Central of Georgia Railway to Atlanta and thence over the Southern Railway to destination, it is also undisputed that the continuity of her trip from Americus to Greenville was broken by a two or three days’ visit to relatives in Macon, that the trunk never actually moved under the interstate ticket and baggage-check obtained at Macon, but was lost during transportation under the local ticket to'Macon, and it does not appear that at the time the local ticket and check were obtained at Americus any declaration was made by the passenger to the carrier as to an intention by her to make an interstate journey or that her baggage should so move. It was not contended that, if the shipment were intrastate, anything in the intrastate contract or under the laws of this State would relieve the carrier of liability for less than the full value. The court left to the jury the question as to whether the carriage was intrastate or' interstate, under instructions that if they found that it was interstate, the maximum recovery would be $100. The jury found for the plaintiff $370. . The exceptions are to the refusal to grant a motion for new trial, based upon general grounds.</p>

<p>Appeal; Lincoln superior court — Judge Shirley. April 27, 1921.</p>

<p>Action for damages; from Pulton superior court — Judge Pendleton. April 26, 1921.</p>

<p>Mortgage foreclosure; from Wilkes superior court — Judge Park presiding. May 13, 1921.</p> <p>Application for certiorari was made to the Supreme Court.</p>

<p>Complaint; from city court of LaGrange — Judge Duke Davis. May 2, 1921.</p>

<p>Complaint; from city court of Leesburg — Judge Martin. December 27, 1920.</p>

Distraint, etc.; from city court of Greenville — Judge Hood presiding. June 11, 1921. Held: arising from the sale of certain personal property, to which fund there were several claimants, who were made parties to the rule. Consent was made that ail questions raised by the parties be decided on the hearing of the rule.