Volume 28 — Georgia Appellate Reports

Accusation of misdemeanor; from city court of Thomasville— Judge W. H. Hammond. July 9, 1921.

<p>Complaint; from Seminole superior court — Judge Worrill. June 23, 1921.</p> <p>The McCaskey Begister Company sued J. M. Miller & Company upon a promissory note of the defendants, payable to the plaintiff, for $110.27, besides interest and attorney’s fees. On the trial of the case the court, after hearing the evidence, and after ruling out a part of the defendants’ evidence, directed a verdict for the plaintiff; whereupon the defendants excepted.</p> <p>The note was given for an “ account register ” and certain books of a “register system of accounts,” described in an order dated April 15, 1920. The defendants pleaded that by the terms of the contract of sale “the goods which were the consideration of said note were to have been shipped by the 5th day of May, 1920, when as a matter of fact said shipment was not made until the 22d day of July, 1920,” and that this was a breach of the contract; that when the plaintiff failed to ship the goods on May 5, 1920, as it had contracted to do, the defendants notified the plaintiff not to ship them, and that when the goods were received at the railway station to which they were shipped, the defendants refused to receive them and they were returned to the plaintiff; also that the defendants paid to the plaintiff’s salesman who took the order for the goods $30, for which the defendants received nothing; and they prayed for judgment against the plaintiff for this amount.</p> <p>From the evidence it appeared that a signed order, purporting to have been made in duplicate, was given by the defendants to the plaintiff for the property in question, to be shipped to the defendants, for which the defendants agreed to pay $140.25, including $30 which was paid in cash, and that the note sued on was given with this order and as a part of the transaction. In the note it is stated that “ the payee is to date this note, using-date of shipment of goods herein referred to as ‘value received;’” and the note is dated July 22, 1920. The papers introduced in evidence by the defendant and the plaintiff respectively as the order executed in duplicate, dated April 15, 1920, differed .as to the time for shipment. The order introduced by the plaintiff directed that the shipment be made by the 5th day of May, 1920, or “ as soon thereafter as possible after date.”</p> <p>The words “ as soon thereafter,” etc., here quoted, had been erased with pencil marks in the order introduced by the defendants; and Y. A. Miller, one of the defendants, testified that when the plaintiff’s salesman presented the-paper to him to be signed, he refused to sign it unless these words were erased, and told the salesman that he wanted “the machine” at once; that the salesman thereupon said he could fix this, and marked out the words “as soon thereafter as possible,” and said that the defendants would get, the machine in 30 days; that the machine was shipped “three months after the expiration of the contract,” and the defendants refused to accept the shipment, and it was shipped back to the plaintiff. The written contract states that it covers “ all agreements between the parties,” and can not “ be altered or varied by any verbal agreement or understanding;” and it contains a receipt of “ an exact duplicate of this order ” by the purchaser. It provides that title to the property shall remain in the seller until full payment of the purchase-price. The plaintiff introduced in evidence a letter of the defendants to it, dated July 7, 1920, saying “ Please ship the register at once and all the books that go with it that I purchased some time ago,” and a letter dated August 18, 1920, saying, “ You have a register down here. I am not going to take it. Please send me check for half of my money, $15, and I will ship it to you; otherwise I will hold it-here in the express office. Now you know I don’t need that machine. Now if you are willing to do what is right, why I am willing to do what is right. I will not except that thing. Now let me know.” In a letter of the defendants to the plaintiff dated August 26, 1920, the writer refers to the low cost of manufacturing the register, recently disclosed to him, and says: “ That is what I call highway robbery; wanting a man to pay $117 for something that.did not cost more than-that. Now that thing can stay there till the express company sells it for charges.”</p> <p>The bill of exceptions states that after both sides announced closed, “ counsel for 'plaintiff moved to rule out all of the evidence of V. A. Miller in conflict with the order; the order, being in writing, would be the highest and best evidence as to any statement made by the agent as to any conditions violating the terms of the original instrument; which motion was by the court sustained, and the evidence of the defendant at variance with the contract was excluded; to which ruling and judgment the plaintiff in error then and there excepted, and here and now excepts and assigns the same as error because contrary to law and because the defendant Y. A. Miller’s evidence was not at variance with the contract, but was in support of.the contention of the defendant that the duplicate order was changed by the plaintiff’s agent at the time of the execution thereof. The court then, upon its own motion, directed the plaintiff to take a verdict for the amount sued for; whereupon a judgment was entered up in favor of the plaintiff, for principal, interest, and attorney’s fees; to which ruling and judgment plaintiff in error . . excepts and assigns the same as error because contrary to law and because the plaintiff’s remedy was a suit for the breach of the contract of purchase, and not an action for the purchase-price of the property, which had not been'delivered and to which title had been retained.”</p>

<p>Appeal; from Chatham superior court — Judge Meldrim. April 6, 1921. .</p>

<p>Action for damages; from city court of Bainbridge — Judge Spooner. April 25, 1921.</p> <p>Application for certiorari was granted by the Supreme Court.</p>

<p>Action for damages; from Muscogee superior court — Judge Munro. May 21, 1921.</p> <p>The action was for damages on account of a collision of a streetcar with the plaintiff’s automobile. The allegations of the amended petition as to the collision were, in substance, that the plaintiff was driving an automobile at night in a southerly direction along Fifth Avenue in the City of Columbus, and, when approaching the intersection of Tenth street, which runs east and west and on which is a double line of the defendant’s electric-railway tracks that cross Fifth Avenue, he looked to see whether any car of the street-railway was approaching, and, not seeing or hearing a car, he turned the automobile to the right, driving into Tenth street, with his attention directed in the direction in which he was driving, and that when the front wheels of the automobile were about 20 feet in Tenth street from where the west curb line of Fifth Avenue and the north curb line of Tenth street intersect, an electric-car of the defendant running westward on the north track on Tenth street at the high rate of speed of from 30 to 40 miles an hour, without warning or signal, struck the automobile and knocked it a distance of 35 or 40 feet westward, injuring the plaintiff and damaging his automobile. It was alleged that the plaintiff was in the exercise of all necessary and reasonable diligence, and that the view and sound of the street-car approaching on that street were obstructed by a storehouse at his left on the corner of that street and Fifth Avenue; and that the proximate cause of the damage was negligence on the part of the defendant in running the street-car at excessive speed, and in failing to keep a proper lookout, and failing to apply the proper brakes and other appliances in common use to stop the car.</p> <p>The defendant demurred to the petition generally and on the ground that the plaintiff failed to exercise ordinary care.</p>

<p>Action for damages; from city court of Savannah — Judge Freeman. June 29, 1921.</p> <p>Certiorari was granted by the Supreme Court.</p>

<p>Complaint; from Fnlton superior court — Judge Pendleton. June 14, 1921.</p>

<p>Complaint; from Seminole superior court — Judge Worrill. June 24, 1921.</p> <p>Warren & Bryant, suing for the use of the Tennessee Chemical Company, allege in their petition that the defendants, the Hagan Grocery Company and the Decatur Brokerage Company, are indebted to the petitioners in the sum of $299.76; that Warren & Bryant were indebted to the Tennessee Chemical Company in the sum of $1,425.15, evidenced by a promissory note; that at the time of the execution of the note L. C. Brown was the duly authorized agent of the Tennessee Chemical Company and has since been its agent; that Warren & Bryant failed to pay the note when due, and that L. C. Brown, while negotiating with Warren & Bryant about its payment, was informed by them that they were the growers and owners of a large number of peanuts held on storage by them, which they desired to sell, and that they would allow the proceeds of the sale to go in liquidation of the note, and they authorized Brown to find a purchaser for the peanuts and sell them and appropriate the proceeds in liquidation of the note; that, in pursuance of such authority from Warren & Bryant and acting as the agent of the Tennessee Chemical Company, Brown offered the peanuts for sale to A. G. Hagan, the president and manager of the two defendant corporations, and thereupon Hagan offered to buy the peanuts, f. o. b. cars at Jakin, Georgia, and pay for them at the rate of $90 per ton “ after his inspection and loading on the cars;” that Brown reported to Warren & Bryant the sale of the peanuts at that rate and the sale was confirmed by them; that the defendants, acting through their manager Hagan, sent their inspector to Jakin for the purpose of inspecting and loading the peanuts, and the inspector did inspect and superintend the loading of the peanuts, and that the total value of these peanuts at tiie said rate was $1,499.35; that the peanuts were loaded in a named car and consigned to the order of the Decatur Brokerage Company, at Petersburg, Va.,” order notify the Barnhart Mercantile Company,” and the bill of lading was accordingly taken from the agent of the railroad company; that upon inspection and loading as aforesaid the defendants were due the plaintiffs $1,499.35, which sum was not then paid; that the defendant Hagan Grocery Company sent to Brown, agent as aforesaid of the Tennessee Chemical Company in the sale of the peanuts, for the benefit of Warren & Bryant, in payment of their note, a draft for $1,199.59, which they represented to be in settlement of eighty per cent, of the purchase-price of the car of peanuts, but that the defendants did not at that time pay, and have not since paid, the balance, or twenty per cent., of the purchase-price of the car of peanuts, amounting to $299.87, and they are still indebted to the plaintiff in that sum; that the proceeds of the draft for $1,199.59 were received by the Tennessee Chemical Company through its agent, Brown, and were applied as a credit upon the note of Warren & Bryant; that the balance due on the purchase-price of the car of peanuts is to be applied as a further credit upon the indebtedness; and that the defendants, in negotiating with Brown for the sale of the peanuts belonging to Warren & Bryant, knew that Brown was acting as agent of Warren & Bryant and of the Tennessee Chemical Company for the benefit of Warren & Bryant. Warren & Bryant were afterwards adjudicated bankrupts, and the petition was amended by adding the name of the trustee in bankruptcy as a party plaintiff.</p>

<p>Action on bond; from Emanuel superior court — Judge Hardeman. June 31, 1921,</p>

<p>Complaint; from Lincoln superior court — Judge Shurley. July 8, 1931.</p>

<p>1. Legal liability results only from a breach of legal duty which implies the existence of some legal relation.</p> <p>2. One who without any employment whatever, but at the request of a servant who has no authority to employ other servants, voluntarily undertakes to perform service for a master is a mere volunteer, and the master does not owe him any duty except not to injure him wilfully and wantonly after his peril is discovered.</p> <p>3. The allegations of the petition failed to show a breach of any duty of the defendants to the plaintiff in connection with the act in which he is alleged to have been injured, and showed that this act was simply a voluntary one on his part, in which he assumed all the risk.</p>

<p>Trover; from city court of Valdosta — Judge Crawley presiding. April 14, 1921.</p>

<p>Action for damages; from city court of Atlanta — Judge Eeid. June 18, 1931.</p> <p>The action was for injuries from being tripped by an iron strip attached to the floor of a car, a leg and bones of the ankle being broken by the plaintiff’s fall.</p>

<p>Action for damages; from Decatur superior court — J. E. Pottle, judge pro hac vice. July 2, 1921.</p>

<p>Certiorari; from Jefferson superior court' — Judge Hardeman. July 13, 1921.</p>

<p>1. The court stenographer’s testimony as to what the defendant testified on the trial of a codefendant was not inadmissible.</p> <p>2. Prejudicial remarks of the judge or counsel in the hearing of the jury, where no motion for a mistrial was made, are not cause for a new trial.</p> <p>3. The alleged errors in the charge of the court were not of such materiality as to require a new trial.</p> <p>4. 5. The instructions requested were sufficiently covered by the charge of the court.</p> <p>6. The alleged newly discovered evidence was cumulative, and besides was met by counter-affidavits; and the discretion of the trial judge in determining as to the credibility of the conflicting affidavits will not be controlled by this court.</p> <p>7. Disqualification of a juror did'not, under the facts of the case, result from his relationship to a town marshal who swore out a warrant for the arrest of the defendant.</p>

<p>Indictment for forgery, etc.; from Chatham superior court — Judge Meldrim. September 10, 1921.</p> <p>From the evidence it appears that an order for certain articles, with a request that change for. $20 be sent with the articles, came over the telephone to a drug-store from a person who said that he was Dr. I. D. Williams, and a messenger was thereupon sent from the drug-store with the articles and with the change requested, and received from the man to whom he delivered the articles and the money a check on a bank for $20, signed "" I. D. Williams ” and payable to “Anderson Pharmacy” (the name of the drugstore). The messenger testified: “I would know the man I gave the money and the goods to. He was a dark-skin man. I think I would know him if I saw him;” but it does not appear that the witness identified the defendant as the man referred to. Dr. I. D. Williams testified that he did not sign the check or authorize the signing of his name to it, and did not order or receive the articles or the money referred to. A detective, testifying as to his investigation of the forgery and the arrest of the defendant, said: ""He made a statement to me, . . freely and voluntarily. He admitted us having a case on him.- That same evening he admitted it and asked me not to try him until he could remember what he had done with the goods, so that he could recover them. We never recovered any of the goods. He said that he disposed of the goods to country people around the market, and wanted me to take him around the market so that he could show the parties to whom he sold the stuff. . . He was to assist as much as possible to recover the goods, but nothing came of it. . . I recovered some more checks; . . there were eleven or twelve of them altogether.” The defendant, in his statement at the trial, said that the checks found on his person by the officer had been picked up by him in the street, where he saw a man drop them, and that he was innocent of the charge upon which he was being tried. The detective testified, in rebuttal: "" I have seen this check before (referring to the cheek copied in the indictment). I interrogated the defendant on the subject of it. He admitted getting the goods and cashing the check. . . I had other cheeks besides the one ■in this case. I read them off to him and questioned him as to what he had done with the goods in each instance; he told me that ho had sold most of them to couutrjnnen. . . As to the signing of the checks, he did not admit signing any of them.” The witness stated that the defendant was taken to several places, for identification, but was identified only at one place, where he was identified as having sold certain tires gotten from a certain tire company.</p>

<p>A conviction of the offense of manufacturing intoxicating liquor was authorized by the evidence, from which it appeared that the defendant was present with his father and others, eating dinner near a still, while whisky was being made in it, that a barrel containing whisky was at the still, and that the defendant and the others fled at the approach of officers.</p>

<p>On tie motion to change the venue the evidence was sufficient to reasonably show that the accused, if brought back to Miller county, tried, and acquitted, or even if he escaped the death penalty, would be in danger of being lynched or of having other violence done to him. The court, therefore, erred in overruling the motion.</p>

<p>Change of venue; flora Chatham superior court — Judge Meldrim. March 26, 1921.</p>

<p>Action for damages; from Troup superior court — .Judge R’oop. April 1, 1921.</p>

<p>Indictment for manufacture of liquor; from Hancock superior court — Judge Park. June 11, 1931.</p>

<p>Complaint; from city court of Macon — Judge Gunn. July 22, 1921.</p>

<p>Action for damages; from city court of Savannah • — • Judge Freeman. August 12, 1921.</p> <p>Application for certiorari was denied by the Supreme Court.</p> <p>The petition was as follows:</p> <p>“The petition of'G. Phillip Maggioni and Joseph 0. Maggioni, copartners, doing business under the name of L. P. Maggioni & Company, respectfully shows as follows, to wit:</p> <p>“ 1st. That Postal Telegraph-Cable Company is a corporation having an office, agent and place of business in Chatham County.</p> <p>• “2d. The said Postal Telegraph-Cable Company (hereinafter called defendant) is engaged in the business of forwarding, for a consideration, telegrams and messages over its various lines of telegraph wires, and, among other branches of its public service, maintained an office and agent in the City of Anniston, in the State of Alabama, where it likewise solicits from the general public the business of transmitting messages by telegraph from that point to Savannah, Georgia, and other points, and so maintained its said, system of telegraph wires and offices on the date hereinafter mentioned.</p> <p>“ 3d. That your petitioners are wholesale dealers in fish in the City of Savannah and have for years past been engaged in such business and a customer of the said defendant corporation, with whom, they have maintained a credit account entitling them to receive and transmit telegrams without prepayment of the charges on such messages, and were so engaged in the business aforesaid on the date hereinafter named. Petitioners have built up a business supplying fish at wholesale to interior points in the States of Georgia, South Carolina, and Alabama, and use largely telegraph utilities for the purpose of receiving orders for fish and in filling the same.</p> <p>“4th. Petitioners show that on October 8th, 1917, the White Star Fish Market, a customer of petitioners, located at Anniston, Alabama, filed a night lettergram in the Anniston, Alabama, office of the defendant corporation, addressed to your petitioners at Savannah, Georgia, ordering from them, among other commodities, three barrels .of mullet, a copy of the said telegram being hereto attached, marked Exhibit ‘A5 and made a part hereof.</p> <p>“ 5th. This message was delivered to petitioners on October 9th, 1917, but, 'through the negligence and carelessness of the said defendant corporation, which had agreed to safely and properly transmit and deliver the said message for a valuable consideration, the said defendant corporation transmitted and delivered the said message incorrectly, to wit, by transmitting the said message to read that the said White Star Fish Market ordered from petitioners thirty barrels of mullet instead of three barrels, as the said White Star Fish Market had in fact so ordered.</p> <p>“ 6th. Your petitioners further show: that upon receipt of said message your petitioners expressed to defendant’s agents and employees in its Savannah, Georgia, office, some doubt as to the correctness of the verbiage of said telegram as delivered, and thereupon ordered the said defendant corporation to repeat the said message to its Anniston, Alabama, office, and, if there was a mistake, to confirm the same, as it was necessary for the said shipment of fish to leave Savannah on No. 1 Central train Thursday morning, for its delivery in Anniston, Alabama, on Friday morning. The said defendant corporation in Savannah thereupon agreed to repeat said message from its Anniston, Alabama, office, ascertain its correctness, and to notify your petitioner at Savannah, Georgia, if the telegram so delivered by it was incorrect. Thereafter petitioners did not receive from defendant any further information that the telegram so delivered to them had been erroneously transmitted, or that there had been any error therein, and, believing that the said telegram was the true and correct order of the said White Star Fish Market, and desiring to fill the order of their customer by shipping at the time necessary to make delivery as aforesaid, thereupon shipped to the. said White Star Fish Market at Anniston, Alabama, on Thursday morning, October 11th, 1917, thirty barrels of mullet as required by the said order, marked Exhibit £ A ’.</p> <p>" 7th. Your petitioners further show that when said shipment of fish was received at Anniston, Alabama, twenty-seven barrels of the same were refused by the consignee, as they had only ordered three barrels of fish. The Southern Express Company, by whom the said fish had been forwarded to destination upon the refusal of the consignee to accept the same, thereupon sold said fish for $308, the express thereof being the sum of $10.70. The value and agreed price of said shipment of fish was $510; Petitioners’ actual loss by reason thereof is $212.70, besides the sum.of $60.90 paid to the Southern Express Company as transportation charges on said 27 barrels of fish, making a total of $272.70.</p> <p>.“ 8th. If petitioners had been notified of said error before shipment, they would not have shipped said 27 barrels of fish and sustained the loss aforesaid. More than a reasonable time for ascertaining said error by defendant elapsed b.etween the time said request for the repetition of said telegram was made and the shipment on October 11th.</p> <p>“ 9th. Petitioners show that the loss of said fish and the damage sustained by said loss was caused solely through the negligence of the said defendant corporation: 1st, by carelessly and negligently originally transmitting the said message erroneously; 2d, in failing to ascertain its error and correct the same; 3d, in neglecting, failing and refusing to repeat said message after it had agreed to do so with plaintiffs; 4th, in failing and refusing to notify your petitioners of the mistake after it could have ascertained its error.</p> <p>“ 10th. Petitioners have demanded from said defendant payment of the said sum of $273.60, which said defendants fail and refuse to pay.</p> <p>“Wherefore, petitioners pray that they may have judgment against said defendant in said sum, with interest from the 15th day of October, 1917, against said defendant, and that process may issue requiring the said defendant to be and appear at the next May, 1918, term of the city court of Savannah, to answer petitioners’ complaint.”</p> <p>Exhibit “ A ” is as follows: “ Anniston, Ala., Oct. 8, ’17. Push first express 5 barrels pike and bass large and small one barrel sheephead flounders, ten gallon select oysters one mullet at once thirty barrels mullet to arrive Anniston Friday morning wire if ship or not am depending on you. [Signed] White Star Fish Market.”</p> <p>The grounds of the demurrer were as follows: “ (1) Said petition, in manner and form as the same is pleaded, fails to set forth a good and sufficient cause of action under the law. (2) Because the said petition fails to set forth the amount of the alleged •valuable consideration moving to this defendant for the transmission of said message. (3) Because the said petition fails to set forth whether the agreement alleged in paragraph 5, to safely and properly transmit and deliver the message referred to therein, was express or implied, or, if express, whether existing in parol or in writing, and, if in writing, fails to attach copy of said agreement or to set forth the substance of the same. (4) Defendant demurs because it is not alleged whether the agreement or understanding to repeat the message referred to in paragraph 6 of said petition was express or implied, and, if express, whether in writing or in parol, and, if in writing, fails to set forth a copy of the agreement or the substance of the terms thereof. (5) Defendant further demurs to the said petition wherein it undertakes to complain of the alleged failure on the part of this defendant to repeat said message, it not being alleged whether, under the contract between this defendant and the sender of said message, the same was to be sent as a repeated message, and no consideration being alleged for any undertaking on the part of this defendant with the plaintiffs to cause said message to be repeated, and it not being set forth anywhere in said petition that the tolls for a repeated message were paid. (6) Because the allegations as to the amount of damage suffered by the plaintiffs are not sufficient, under the law, to show that the amount prayed for is the lawful measure of damage, or that said amount could be lawfully recovered herein.”</p>

<p>Complaint; from city court of Nashville — W. R. Smith. August 30, 1921.</p>

<p>Misrepresentations by agents of the vendor to the purchaser of land constituted no defense to an action on a note for purchase-money, under the allegations of the defendant’s plea in this case.</p>

<p>Complaint; from Taliaferro superior court — Judge Shurley. August 24, 1921.</p>

<p>Complaint; from city court of Richmond county — Judge Black. July 29, 1921.</p>

<p>Complaint; from Cherokee superior court — Judge Blair. August 3, 1921.</p>

<p>Where one waives a tort and sues on contract, he will be held to have waived the entire tort, and he cannot recover a part of his damages in a suit on contract, and subsequently maintain an action in tort for the remainder.</p>

<p>Trover; from Cherokee superior court — Judge Blair. August 4, 1921.</p>

<p>Indictment for possessing liquor; from Wilkes superior court — Judge Shurley. September 30, 1921.</p> <p>The only witness for the State was a deputy sheriff, who testified: that a jug of whisky was found near the side of a road, and he hid in bushes near it to see who would come for the jug, and saw the defendant drive past in a buggy and go a short distance down the road, where there was a branch, and return, stop the buggy, get out of it, and climb a fence, with a sack, and walk along the fence, stop, reach over the fence, and begin pulling vines from over the jug, which was on the same side of the fence as the road, but that on seeing the witness he started off and was halted by the witness, and said that he came out there to relieve himself, and knew nothing about the whisky; that he had been to Mr. Barnett’s place, near there, to get cottonseed, but Mr. Barnett was not at home. The witness did not see him touch the jug. The defendant, in his statement at the trial, said that he climbed over the fence to get out of sight of the road and, relieve himself, and took the sack over the fence to put it under his knee, which was tender and sensitive where his leg had been cut off, and that on seeing the deputy sheriff he started off because the deputy sheriff had a pistol drawn on him and it frightened him; that he knew nothing about the whisky, and was not within eight feet of where the deputy sheriff picked it up, and that the reason for turning back after he had passed that place was that he went to the branch to let the horse get water, and was returning to Mr. Barnett’s place, where he had gone to get cottonseed in the sack; that he had been told that Mr. Barnett had “ only stepped off a little ways.”</p>

<p>Indictment for bigamy; from Wilkes superior court — Judge Shurley. September 23, 1921.</p>

<p>Indictment for assault and battery; from Cobb superior court — Judge Blair. October 8, 1921.</p>

<p>Indictment for manufacture of liquor; from Lincoln superior court — Judge Shurley. September 16, 1921.</p>

<p>Accusation of carrying pistol wihtout license; from city court of Bainbridge — Judge Spooner. October 10, 1921.</p>

<p>Indictment for assault with intent to murder; from Colquitt superior court — Judge Thomas. October 19, 1921.</p>

<p>Accusation of carrying pistol without license; from city court of Fort Gaines — Judge Turnipseed. October 10, 1921.</p> <p>The sheriff testified that the pistol was found in the pocket of a coat which was rolled up and was under and near the front of a seat in the defendant’s buggy, which the defendant had just left at a livery stable, and that the defendant said that the coat was his coat and the pistol was his pistol.</p>

<p>Indictment for larceny; from Randolph superior court — Judge Worrill. September 30, 1931.</p>

<p>Certiorari; from Fannin superior court — Judge Blair. October 31, 1931.</p>

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

<p>Indictment for assault with intent to murder; from Decatur superior court — Judge Worrill presiding. November 5, 1921.</p>

<p>Indictment for assault with intent to rape; from Bulloch superior court — Judge Strange. October 24, 1921.</p>

<p>Action on insurance policy; from Bichmond superior court — Judge Henry C. Hammond. February 11, 1920.</p>

<p>Money rule; from Dougherty superior court — Judge Harrell. October 30, 1919.</p>

<p>Forfeiture of the rights of the plaintiffs to commissions as agents under the new contract between them and the defendant did not affect the right to commissions on renewal premiums under the older contract transferred to the plaintiffs by the former agent, Stuart.</p>

<p>Action on contract; from Chatham superior court — Judge Meldrim. December 27, 1920.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Oral representations made to induce the signing of a contract for the purchase of laud, which were alleged to be fraudulent, constituted no defense to an action on the contract, under the allegations of the defendant’s plea; and the court did not err in striking the plea, on demurrer.</p>

<p>Action for damages; from city court of Albany — Judge Clayton Jones. April 12, 1921.</p>

Certiorari; from Eulton superior court — Judge George ,L. Bell. March 23, 1921. E. S. Morris, the owner of an apartment house, sued out a warrant to dispossess H. I. Battey, alleged to be a tenant holding over. Battey filed a counter-affidavit.

<p><( When a common carrier fails to deliver goods according to the terms of the contract, the measure of damages is the value of the goods at the time and place at which it is agreed to deliver them, less the transportation charges.”</p>

Indictment for assault with intent to murder; from Chatham superior court — Judge Meldrim. May 27, 1921. Application for certiorari was denied by'the Supreme Court.

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

<p>Indictment for assault with intent to murder; from Haralson superior court — Judge Irwin. June 8, 1921.</p> <p>The instructions submitting to the jury the question whether there was an unreasonable search and seizure were complained of on the ground that under the evidence there was no such issue; that the undisputed evidence showed that there was an illegal and unreasonable search and seizure.</p>

<p>1. The judge, having given in charge to the jury the language of the Penal Code as to circumstantial evidence (P. C. 1910, §§ 1009, 1010), did not err, in the absence of a proper and timely written request, in failing to charge more fully on that subject. Seats v. State, 122 Ga. 173 (3) (50 S. E. 65); McNaughton v. State, 136 Ga. 614 (5) (71 S. E. 1038); White v. State, 25 Ga. App. 426 (103 S. E. 742).</p> <p>2. It was not error harmful to the defendant for the court to charge as follows: “ If you find from the evidence, or the defendant’s statement, that the contentions of the defendant are true, you should acquit the defendant.”</p> <p>3. The judge did not err in instructing the jury that “ the recent possession of stolen property, unexplained, is a strong circumstance to be considered by them.” (Bloodwortec, J., dissents.)</p> <p>4. So far as they were legal and pertinent, the requests to charge embodied in grounds 7 and 10 of'the motion for a new trial were sufficiently covered by the charge given.</p> <p>5. The judge properly refused to give to the jury the requested instructions set out in ground 8 of the motion for a new trial. To have told the jury, “ if you find in this case that a car stolen from Dr. Mitchell,” etc., would have been to express or intimate what had been proved, and would have been a direct violation of § 1058 of the Penal Code of 1910.</p> <p>6. There is no merit in ground 9 of the motion for a new trial,’ as to the refusal to give requested instructions upon the presumption from possession of stolen property.</p> <p>7. Eor no reason urged at the time of its introduction was all the evidence embodied in ground 11 of the motion for a new trial inadmissible; and it was offered en bloc. Besides, this ground of the motion for a new trial is not complete and understandable without reference to other parts of the record.</p>

<p>1. The request to charge set out in the first special ground of the motion for a new trial, as to the burden on the State to identify the defendant, beyond a reasonable doubt, as one of the persons present when the goods was destroyed, was covered by the general instructions given, and therefore the failure to charge in the language requested is not cause for a new trial. See Park’s Penal Code, § 1087, and annotations.</p> <p>2. Though the evidence authorized a charge on the law of confessions, failure to instruct the jury on that subject, in the absence of a timely written request that they be so instructed, is not, under the facts of the instant case, cause for a new trial.</p> <p>3. Inculpatory statements made in the presence and hearing of the defendant and neither answered nor denied by him are admissible in evidence. Penal Code (1910), § 1029; Moye v. State, 66 Ga. 740 (2); Franklin v. State, 69 Ga. 36 (2); Watson v. State, 136 Ga. 236 (71 S. E. 122); Gates v. State, 20 Ga. App. 171 (1) (92 S. E. 974).</p> <p>(a) Under this ruling and the facts of the instant case, the evidence the admission of which is complained of in the 3d ground of the amendment to the motion for a new trial was admissible. Moreover, even if it were error to admit that evidence, the error was not such as would authorize this court to grant a new trial, since evidence to the same effect had already been admitted without objection. Smith v. State, 23 Ga. App. 76, 77 (3) (97 S. E. 454). The ruling in the ease of Morris v. Stokes, 21 Ga. 552, relied upon by the plaintiff in error, is insufficient to alter our ruling, as the facts of that case are clearly distinguishable from those of the instant ease.</p> <p>4. The evidence authorized the verdict, and the court did not, for any reason assigned, err in overruling the motion for a new trial.</p>

<p>Indictment for murder — conviction of manslaughter; from McDuffie superior court — Judge Henry C. Hammond, September 5, 1921.</p>

<p>Action for damages; from Cobb superior court — -Judge Blair. September 16, 1921.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>The evidence in this case is not sufficient to show that the “ apparatus for the distilling and manufacturing of” intoxicating liquors was located on the premises of the accused.</p>

<p>Indictment for manufacture of liquor; from Wilkes superior court — Judge Shurley. September 23, 1921.</p>

<p>Conviction of shooting at another; from Wilkes superior court — Judge Shurley. September 29, 1921.</p>

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

<p>1. When considered in connection with the remainder of the charge' of the court and in the light of the evidence, the instructions as to the effect of a person’s knowledge that a still is on his premises were not erroneous.</p> <p>2. The court properly refused to give to the jury the requested instructions set out in grounds 2, 3, and 4 of the amendment to the motion for a new trial. So far as legal and pertinent, these requests were covered by the charge given.</p> <p>3. The verdict being supported by sufficient evidence, and being approved by the judge who presided at the trial, this court will not interfere with it.</p>

<p>Conviction of assault with intent to rape; from Bibb superior court — Judge Mathews. October 24, 1921.</p>

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

<p>Indictment for larceny; from Coweta superior court — Judge Boop. October 12, 1921. •</p> <p>.George Wynn was convicted as accessory after the fact, under an indictment for simple larceny, in which he and Demus Spear and others were joined as defendants, and which charged the stealing of a bale of cotton from B. L. Bedwine. From the testimony of Demus Spear it appeared that Spear stole the cotton from Rédwine’s pasture and put it in Wynn’s hen-house; that' previously Spear borrowed $15 from Wynn and talked to him about cotton, and Wynn said that if he had some he could sell it; that soon after the borrowing of the money Spear met Wynn and promised to pay it back in a short time, and said there was something he would have to make it out of. Spear testified: “ I says, ‘ George, if I don’t pay you that money I have got something I will have for you if you will sorter help me out of it.’ He asked me how. I told him I had something I could get to sell. . . I told George I wanted to borrow his mules and wagon, I was gwine after a bale of cotton. He told me he would see me in a few days and let me know. He said he was working them and needed them. He said he would let me have them . . when they wasn’t busy. I went back the next day, . . and he let me have the mules and wagon that night to go and get this bale of cotton. When I got this bale of cotton I carried it back to George’s house with the wagon and mules and put it in the hen-house at the place where George lives. . . It was somewhere about 12 o’clock when I got back there. My brother Robert went with me. . . When I come he was coming towards the lot, met me at the lot. I found the cotton in Mr. Ben Redwine’s pasture. I carried the cotton from the pasture to the wagon on a pair of trucks. . . I got the trucks at George’s home. . . He said he had a pair of trucks there if I wanted to use them. There was no understanding at all between me and George that we were to divide this cotton. We had no understanding about it at all, only he said when I got back he would do what' was right about it. I owed him $15. I left the cotton in his hen-house. That was the agreement between us. He was to sell the cotton., . . Me and George Wynn put that bale of cotton in -the hen-house. . . George didn’t encourage me at all to go off and steal any cotton. I did not tell him I was going to steal the bale of cotton. I just told him that I was going off after a bail of cotton.” Red-wine testified that in his pasture from which the‘bale of cotton was taken he saw on the next morning the tracks of little cotton trucks, two-wheel push trucks such as are used in stores and ware- ■ houses, and that the tracks went to and from where the cotton was to the road where the bale was loaded on a wagon. Others testified as to the tracks and as to finding the cotton in the defendant’s hen-house; and it was testified that when first asked who put the cotton in the hen-house he “ claimed not to know anything about it; later he said Demus Spear put it in there.” It was alsp testified that when search was being made for him at his home he was not found, but that later he gave himself up. In his statement at the trial he said that Demus Spear borrowed his wagon, saying “ he had some junk to haul,” and brought it back the next morning between dajdireak and sun-up, with a bale of cotton, which Demus said he wanted to leave there until it could be taken to Newman or Fairburn and sold; that Demus said he had won a cow, playing pot poker, and that “this colored man’s wife raised so much sand about it he told me to take this bale of cotton and sell it and get my $40 out of it.” The defendant said: “I told him all right he could leave it there. He just throwed it off, and I says, ‘You better not leave it in the lot; the cows will eat it up.’ He put it on the trucks and dumped it in the hen-house, and that was all I knowed about it.” The defendant said he was scared out of his soul by witnesses who came to his place; and he said: “ I didn’t run away. I went to Mr. Harry Hill’s and told him about these men looking for the cotton. Mr. Harry Hill says, ‘ You better wait until things get quiet if he is an officer, drunk, and got a big gun on him; I don’t know what he might do to a colored man.’ I was scared of him and stayed at home until the thing got through, and I come on down here.” It was testified that the defendant’s character was good, “way above the average negro of our country.” Demus Spear, in rebuttal, denied parts of the defendant’s statement.</p>

<p>Indictment for burglary; from Lowndes superior court — Judge Thomas. October 22, 1921.</p> <p>As to the testimony referred to in the 4th headnote it was objected that “if the witness was charged with a violation of the penal statute, there is higher and better evidence, to wit: the accusation and the bill of indictment, and the charges that have been entered on the- books of the courtand that if the witness served a term on the chain-gang, there is better evidence of that fact.</p>

Indictment for manufacture of liquor; from Lincoln superior court — Judge Sburley. September 23, 1921.

Indictment for burglary; from Coweta superior court- — -Judge Eoop. October 12, 1921. ■ Green and Jones were convicted of burglary, under an indictment in which, jointly with Jackson, Landrum, and Tanner, they were charged with having broken and entered the storehouse of the H. W. Camp Company with intent to steal. From the evidence it appeared that the breaking and entering was by Jackson, Land-rum, and Tanner.

<p>A conviction of assault and battery was authorized by the evidence.</p>

<p>1. The plaintiff in error complied substantially with the requirements of law as to bringing to this court evidence taken by an auditor.</p> <p>2. As to those exceptions of law to the auditor’s report which were “ overruled and disallowed,” there was no error in the rulings of - the trial • judge.</p> <p>(а) The tax-collector was properly allowed to testify that the payment of $1227.45 was made on the taxes for the year 1912.</p> <p>(б) Under the facts of this ease no error was made by the auditor when he amended the execution by striking therefrom the words “ 7 % interest ” and inserting in lieu thereof the words “ 20 % interest.”</p> <p>(c) The motion to exclude the testimony of W. I. Moody was properly sustained.</p> <p>(d) The auditor did not err in holding that the tax-collector’s cash-book “ or a properly authenticated transcript therefrom ” would have been the highest and best evidence of what had been paid to the county.</p> <p>(e) No error was committed by the auditor when he sustained an objection to the admission in evidence of the books of the tax-collector.</p> <p>(f) Under the facts of this case, it was not error harmful to the defendant for the auditor to allow interest from April 20, 1913, at 20% per annum, on the sum the defendant was due and owing to the county for the years 1911 and 1912.</p> <p>3. The judge did not err in overruling the motion 'to strike the exceptions of fact.</p> <p>4. There is no error in the charge complained of in the 1st special ground of the motion for a new trial.</p> <p>5. The right of the county to issue an execution for the amount due hy the tax-collector for the year 1911 was not barred by the lapse of time.</p> <p>6. Under the pleadings the judge of the superior court properly refused to allow the amount which the jury found the tax-collector was due the county for the years 1909, 1910, 1911, and 1912 to be reduced by the amount they found that he overpaid the county in 1913 and 1914.</p> <p>7. There was ample evidence to support the finding of the jury.</p>

<p>Indictment for misdemeanor; from Fulton superior court — Judge Humphries. October 28, 1921.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Affidavit of illegality; from Miller superior court' — -Judge Worrill. March 19, 1921.</p>

<p>Affidavit of illegality; from Miller superior court — Judge Worrill. March 19, 1921.</p>

<p>The award of the arbitrators upon which this action was based was so indefinite and uncertain as to be incapable of enforcement; and the court did not err in dismissing the petition, on demurrer.</p>

Appeal; from Chattooga superior court — Juclge Wright. April 30, 1921. Owens sued the Central of Georgia Kailway Company in a justice’s court on an account which is as follows: Summerville, Ga., July 5, 1911. Central of Georgia Kailway Company, Dr. “ To J. S. Owens, Or.

<p>Complaint; from city court of Cartersville — Judge Aubrey. August 11, 1921.</p>

<p>Indictment for murdeT — conviction of manslaughter; from Tift superior court — Judge Eve. October 1, 1921.</p> <p>1. The charge of the court as to mutual combat is complained of in the motion for a new trial as follows.</p> <p>“Eighth. . • . (d) The movant points out the following portion of the said charge given to the jury, to wit: ‘Mutual combat may exist where there is a mutual intention to fight, though only one blow be struck.’ With reference to this portion of the charge, the movant further points out the fact that it immediately follows the following language used by the court, to wit, ‘ Section 73 is only to be considered by the jury when they are satisfied from the evidence that the parties were engaged in mutual combat,’ and following this the court gives the definition of mutual combat as shown by said first quotation. The movant insists and contends that this definition of mutual combat is entirely too limited and narrow, and not consistent with the legal definition, and not adjusted to the facts, and not adjustable to the facts of this case, and was materially harmful to the defendant, and requires that a new trial be granted him in this case. Nothing is said by the court as to when and how the mutual intention to fight must be formed; the nature or character of the intention on the part of the participants. The jury was not here, nor at any place in the charge, instructed to the effect that it must appear that each and both of the parties to the conflict must be aggressive and deliberately and premeditately agree to enter into the fight in an aggressive and affirmative way, each and both intending and endeavoring to take the life or commit a felony upon the person of the other. The limitation ‘though only one blow be struck,’ as used here, is not consistent with the law, and greatly limits and narrows the true rule, particularly when considered with the view to applying it in this case — to the facts of this case. The jury was not here, nor at any place in the charge, given the explanation and instruction that one blow given by one of the parties to the other would not be sufficient, but that the blows must be mutual as to intention and aggression, and each and both must be inflicting blows, or must be attempting to inflict blows; that each and both must be actually and aggressively engaged in the combat. The definition here given was probably not understood by the jury, and there was not enough given to enable the jury to understand and apply the true definition of the terms ‘ mutual combat5 as here used by the court, and as used or referred to by section 73 of the Penal Code.”</p> <p>2. The ground of the motion for a new trial referred to in division 2 of the decision is as follows:</p> <p>“ Eleventh. The court charged the jury as follows, to wit: (I will say in explanation of that section, commencing with provocation by words, threats, menaces, or contemptuous gestures, while the doctrine of reasonable fears is not involved in the offense of voluntary manslaughter, I will state now that the portion of the above section relating to provocation by words, threats, menaces, or contemptuous gestures is not in any way a limitation or curtailment or qualification of the right or doctrine of self-defense by one under a reasonable fear that his life is in danger, or that a felony is about to be committed upon him. This merely means that, where a person kills through anger from opprobrious words, he must have some better reason for the killing than merely opprobrious words.’ The movant insists and contends that this portion of the charge was erroneous and contrary to law, and very harmful to the defendant and his cause, entitling him to a new trial in this case, for the following reasons and grounds, each and all of which are insisted upon, to wit:</p> <p>“ (a) Because a charge on the subject covered by this portion of the charge was not warranted by or adjustable to the facts of this case.</p> <p>“(b) Because the instruction here given was confusing and misleading to the jury, and did not make it clear that the instruction to the effect that ‘ provocation by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to free the person killing from the guilt and crime of murder ’ was only applicable upon the consideration of the issue as to whether the killing was the result of a sudden violent impulse of passion supposed to be irresistible, and as to whether such passion was brought about by provocation by words, threats, menaces, or contemptuous gestures only, or by an actual assault upon the person killing, or an attempt by the person killed to commit a serious personal injury upon the person killing, or by other equivalent circumstances, and the instruction given is not sufficient to make 'it reasonably clear to the jury that the reasonable fears that would justify and entitle the defendant to an acquittal might be engendered by words, threats, menaces, or contemptuous gestures.</p> <p>“ (c) The following portion of this charge, to wit: ‘ This merely means that, where a person kills through anger from opprobrious words, he must have some better reason for the killing than merely opprobrious words/ the movant insists was confusing and misleading to the jury, was without facts to justify it, and probably deprived the defendant of the benefit of his defense under the doctrine of reasonable fears. The jury could not have understood from this instruction that it had the right to consider any evidence or facts shown by the defendant’s statement showing opprobrious words, threats, menaces, or contemptuous gestures, on the part of the deceased toward the defendant in determining whether the defendant at the time of firing the fatal shot acted under the influence of reasonable fears that his own life was in danger, or that a felony was.about to be committed upon him. by the deceased, and that he would be entitled to an acquittal, that reasonable fear, not anger, engendered by opprobrious words, threats, menaces, or contemptuous gestures, might free him from guilt of any offense.”</p>

<p>Garnishment — appeal; from Taylor superior court — Judge Howard. March 30, 1920.</p>

<p>Evidence that the owner of an automobile was traveling therein along a public road, having about his person, in a pocket in his clothes, a quart-bottle containing whisky, is, in the absence of other evidence, either direct or circumstantial, that he was using the automobile on the particular occasion for the purpose of conveying the liquor, insufficient to establish as a matter of law that the car was being used by the owner in conveying the liquor and that it was therefore subject to condemnation under the act of the legislature of 1917 providing for the condemnation of any vehicle “ used . . in conveying ” liquors, the sale or possession of which is prohibited by law. The bottle containing the whisky being too small to require the use of an automobile for the purpose of its conveyance, its mere possession by the person traveling in the automobile does not, without more, demand or compel the inference that the automobile was being “ used . . in conveying ” such liquor.</p>

<p>Validation of school bonds; from Worth superior court' — Judge Eve. August' 14, 1930.</p>

<p>Action for damages; from Fulton superior court — Judge Bell. March 15, 1921.</p>

<p>Action for damages; from city court of Atlanta — Judge Reid. April 2, 1921.</p>

<p>Action on contract; from Bibb superior court — Judge Malcolm D. Jones. May 14, 1921.</p>

<p>Action for damages; from Banks superior court — Judge Fortson. April 25, 1921.</p>

<p>Trover; from city court of Savannah — Judge Freeman. April 29, 1921.</p>

<p>Action for damages; from Fulton superior court — Judge Pendleton. June 3, 1921.</p>

<p>Action for damages; from Fulton superior court — Judge Pendleton. June 23, 1921.</p>

<p>Trover; from city court of Polk county — Judge Tison. December 20, 1920.</p>

<p>Complaint; from Echols superior court — Judge Thomas. September 15, 1930.</p>

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

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

<p>Certiorari; from Bibb superior court — Judge Matthews. February 15, 1921.</p>

<p>Complaint; from Pulaski superior court- — Judge Gower presiding. February 19, 1921.</p>

<p>Action on contract; from Ben Hill superior court — Judge Gower. February.il, 1921.</p>

<p>Action for damages; from Ben Hill superior court — ■ Judge Gower. February 5, 1921.</p>

<p>Foreclosure of mortgage; from Clinch superior court — Judge Summerall. February 8, 1921.</p>

<p>Action for damages; from city court of Elberton — Judge Grogan. February 16, 1921.</p>

<p>Action for damages; from city court of Richmond county — Judge Black. March 8, 1921.</p>

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

<p>Complaint; from city court of Douglas — Judge Henson. February 23, 1921.</p>

<p>Action for damages; from Rabun superior court — Judge J. B. Jones. March 7, 1921.</p>

<p>Action on contract; from Colquitt superior court — Judge Thomas. March 19, 1921.</p>

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

<p>Attachment; from Laurens superior court — Judge Kent. March 26, 1921.</p>

<p>Affidavit of illegality; from city court of Statesboro — Judge Proctor. March 14, 1921.</p>

<p>Certiorari; from Muscogee superior court — Judge Munro. May 7, 1921.</p>

<p>Action for damages; from Burke superior court — Judge Henry C. Hammond. April 30, 1921.</p>

<p>Complaint; from Ben Hill superior court — Judge Gower. April 17, 1921.</p>

<p>Attachment; from Wilkes superior court- — Judge Shurley. April 25, 1921.</p>

<p>Complaint; from city court of Tifton — Judge Price. April 28, 1921.</p>

<p>Certiorari; from Bibb superior court — Judge M. D. Jones. May 20, 1921. '</p>

<p>Complaint; from city court of Sandersville — Judge Goodwin. May 30, 1921.</p>

<p>Complaint; from Chatham superior court — Judge Meldrim. April 1, 1921.</p>

Action for damages; from Jones superior court — Judge Park. May 19, 1921. Application for certiorari was denied by the Supreme Court.

<p>Petition for removal of cause; from Decatur superior court — Judge Worrill. May 27, 1921.</p>

<p>Lien foreclosure; from Morgan superior court — Judge Park. July 7, 1921.</p>

Trover; from city court of Thoniasville — Judge W. H. Hammond. July 9, 1921. Mrs. Eeaves brought trover against Fletcher, alleging, (1) the residence of the defendant, (2) that the defendant was in possession of certain personalty described, (3) that the described property was the property of the plaintiff, (4) the value of it, and (5) that the defendant failed to deliver the property to the plaintiff or to pay her the profits thereof.

<p>The evidence being insufficient to show that the contract sued upon was an original undertaking by the defendant, and it appearing that if he made such a contract it was an obligation to pay the debt of another, and was not in writing, and therefore, under the provisions of the statute of frauds, was unenforceable, and this defense having been pleaded by him, a judgment in his favor was demanded. This case is distinguishable from the cases of Evans v. Griffin, 1 Ga. App. 327 (57 S. E. 921), and Williams v. Garrison, 21 Ga. App. 44 (93 S. E. 510), in that the record in this ease does not disclose that the original debtor was under any contract to perform service for the creditor, or what relationship, if any, the original debtor occupied towards the creditor other than that of debtor and creditor.</p>

<p>1. In a bail-bond given in a criminal case and providing that the principal therein should personally be and appear at the municipal court of Columbus on a named day, “to answer an accusation; indictment, for the offense of misdemeanor,” the term “ accusation,” in the recognizance, is broad., enough to include the term “warrant.”</p> <p>2. The criminal jurisdiction of the municipal court of Columbus is limited to that of justices’ courts, viz., to issue warrants, hold courts of inquiry, and discharge or bind over defendants to the higher courts. Ga. L. 1915, p. 64. Accordingly, it should be presumed that the- obligors in such a bail-bond as is referred to above understood .when they executed it that the term “ accusation ” therein meant a “ warrant.”</p> <p>3. Under the foregoing rulings, grounds 3, 8, 9, 10, 11 and 12 of the demurrer to the petition were properly overruled.</p> <p>4. There is no fnerit in any other ground of the demurrer.</p>

<p>Indictment for forgery, etc.; from Glynn superior court — Judge Summerour. January 8, 1921.</p>

<p>Certiorari; from Lincoln superior court — Judge Shurley. August 13, 1921.</p>

<p>' Action for damages; from Twiggs superior court — Judge Kent. December 31, 1920.</p>

<p>Motion to open default; from Douglas superior court — Judge Irwin. September 21, 1921.</p>

<p>Complaint; from city court of Jefferson — ■ Judge Bryson. September 3, 1931.</p>

<p>Action for damages; from Eloyd superior court — Judge Wright. October 3, 1933.</p>

<p>Accusation of vagrancy; from city court of Thomasville — Judge W. H. Hammond. October 12, 1921.</p>

<p>Complaint; from Ben Hill superior court — Judge Gower. August 31, 1921.</p>

<p>Conviction of manslaughter; from Tattnall superior court — Judge Sheppard. October 22, 1921.</p>

<p>Accusation of carrying concealed weapon; from city court of Macon — Judge Gunn. November 18, 1921.</p>

<p>Indictment for robbery; from Fulton superior court — Judge Humphries. October 27, 1921.</p> <p>Harrison, the plaintiff in error, was indicted jointly with Cathey for robber}!, but was tried separately. The testimony referred to in the first paragraph of the decision was that of a witness for the State who testified that Cathey came to the place of business of the witness the day after the alleged robbery and left with him a roll of money which Cathey said was his (Cathey’s) wife’s money, and wanted him to keep the money until Cathey’s return from “ a raid on which he was going;” and that Cathey returned on the same day and got the money and left. This testimony was admitted over the objections that there was no evidence of conspiracy between Harrison and Cathey, that Harrison was not present when Cathey’s statements were made to the witness, and that declarations of Cathey were not admissible against Harrison.</p>

<p>Refusal to sanction the certiorari was proper because of failure to show compliance with the statutory requirements as to bond in such cases. The recitals of the petition and of the clerk’s certificate as to such compliance are mere conclusions.</p>

Indictment for murder — conviction of voluntary manslaughter; from Chatham superior court — Judge Meldrim. November 18, 1921. Application for certiorari was denied by the Supreme Court. In shooting at Bailey, Curtis killed Iris Broom, a child, with his second shot. A subsequent shot killed Bailey. The indictment was for the murder of Iris Broom.

<p>Indictment for manufacture of liquor; from Harris superior court — Judge Munro. November 3, 1921.</p>

<p>Accusation of sale of incumbered property; from city of Dawson ■ — Judge Edwards. December 1, 1921.</p>

<p>Conviction of shooting at another; from Houston superior court — Judge Malcolm D. Jones. November 26, 1921.</p>

<p>Conviction of assault and battery; from Cobb superior court — Judge Blair. November 28, 1921.</p>

<p>Accusation of possessing liquor; from city court of Brunswick — Judge Butts. December 14, 1921.</p>

<p>Indictment for sale of crop; from Lanrens superior court — Judge Kent. November 26, 1921.</p>

<p>Accusation of possessing liquor; from city court of Brunswick ■ — Judge Butts. December 14, 1921.</p>

<p>Indictment for larceny after trust; from Fulton superior court — Judge Humphries. September 3, 1921.</p>

<p>1. The ground of the motion for a new trial as to exclusion of testimony is not in proper form for consideration.</p> <p>2. The ground as to newly discovered evidence is fatally defective because of the lack of required affidavits of the movant and his counsel.</p> <p>3. A juror’s statements to the effect that the jury considered matter which was not in evidence will not be received for the purpose of impeaching his verdict.</p>

<p>Indictment for possessing liquor; from Cobb superior court — Judge Blair. December 19, 1921.</p>

<p>Instructions upon the law of mutual combat were authorized by the evidence; and a conviction of voluntary manslaughter was authorized.</p>

<p>Indictment .for making liquor; from Jackson superior court — Judge Eortson. November 19, 1921.</p>

<p>The action being against a warehouseman for damage to cotton delivered to his agents for storage in his warehouse, and the plaintiff’s evidence having placed upon the defendant the burden of showing that he exercised ordinary diligence in protecting the cotton, and the evidence not demanding a finding that this burden had been carried, it was error to grant a nonsuit.</p>

<p>Action for damages; from Irwin superior court — Judge Eve. August 35, 1931.</p>

<p>Indictment for larceny of automobile; from Forsyth superior court — Judge Blair. October 1, 1921.</p>

<p>Indictment for manufacture of intoxicating liquor; from Tattnall superior court — Judge Sheppard. September 17, 1921.</p>

<p>1. The use of the word “ pistol,” instead of “ gun,” in the charge of the court upon the contentions of the State on a trial for homicide, which the indictment alleged had been committed by shooting with “ a certain gun,” was not cause for a new trial.</p> <p>2. A definition of the word “ felony,” as used in section 70 of the Penal Code (1910), need not, if not properly requested, be given by the court where that section is given in charge to the jury.</p> <p>3. Instructions upon the law as to voluntary manslaughter and as to a mutual intent to fight were authorized.</p> <p>4. The omission of section 73 of the Penal Code (1910), in charging the jury, was not error harmful to the accused.</p> <p>5. 6. Affidavits as to declarations of the sole witness for the State, to the effect that her testimony on the trial was false, do not constitute cause for a new trial.</p>

<p>Indictment for manufacture of liquor; from Floyd superior court — Judge Wright. November 30, 1921.</p>

<p>Indictment for misdemeanor; from Fulton superior court — Judge Humphries. November 6, 1921.</p> <p>Possession and sale of intoxicating liquor by Sidney Harris were charged in the indictment, and the verdict was guilty. A deputy sheriff testified that he and other deputies found in an alley in Atlanta an automobile in which was a suit-case full of corn whisky, and saw the defendant Harris standing by the automobile, with a foot on the running board, and saw two men on the opposite side, with a gallon can of corn whisky on the ground by them; that one of them ran, and that Harris and the other man (Cochran) were arrested, and Cochran fired two shots from a revolver, killing one of the deputies and wounding Harris, and ran away; that the automobile and the whisky were the property of Cochran, and “ that this defendant Sydney Harris admitted that he rode on the back seat of the automobile with Cochran from Buck-head, Morgan county, Ga., to Atlanta, Ga., and that he had worked for . . Cochran on his farm for two years and was so employed by him at the time he left Buckhead, Ga., but denied that he had anything at all to do with the corn whisky; and the witness never saw the defendant in possession of any whisky.” The defendant, in his statement at the trial, denied knowledge of the whisky.</p>

<p>Indictment for manufacture of liquor; from Walker superior court — Judge Wright. December 3, 1921.</p> <p>It was testified that the defendant and others said that the' still in question was in Walker county; but in his statement at the trial he said he thought it was about 50 yards over the line in Alabama.</p>

<p>Conviction of larceny from, house; from Bacon superior court — Judge Summerall. November 23, 1921.</p>

<p>Action for damages; from Cobb superior court — Judge Searcy presiding. February 5, 1921.</p> <p>Certiorari was granted by the Supreme Court.</p>

<p>Action for damages; from Cobb superior court — -Judge Searcy presiding. January 5, 1922.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

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

<p>Garnishment; from city court of Athens- — Judge Bradwell. February 15, 1921.</p>

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

<p>Money rule; from Floyd superior court — Judge Wright.' March 5, 1921.</p>

<p>Action for damages; from city court of Griffin — Judge Goodrich. December 30, 1920.</p>

<p>Money rule; from Hall superior court — Judge J. B. Jones. December 18, 1920.</p>

<p>Action for breach of warranty; from city court of Atlanta — Judge Beid. January 15, 1931.</p>

<p>Affidavit of illegality; from Tattnall superior court — Judge Sheppard. March 16, 1931.</p>

Actiou for damages; from city court of Houston county — Judge Riley. July 26, 1919. Application for certiorari was denied by the Supreme Court. The Court of Appeals certified to the Supreme Court the following questions: “ 1.

<p>Certiorari; from Fulton superior court — Judge Pendleton. November 18, 1921.</p>

<p>Complaint; from city court of Americus — Judge Harper. January 6, 1921.</p>

<p>Trover; from Clarke superior court — Judge Cobb. January 15, 1921.</p>

<p>Certiorari; from Tattnall superior court — Judge Sheppard. February 5, 1921.</p>

<p>Complaint; from Warren superior court — Judge Shurley. April 6, 1921.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. December 15, 1930.</p>

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

<p>Action on contract; from city court of Houston county — Judge Riley. December 6, 1920.</p>

<p>Action for damages; from city court of Savannah — Judge Freeman. January 28, 1921.</p>

<p>Complaint; from city court of Polk county — Judge Tison. February 14, 1921.</p>

<p>Action for damages; from Coweta superior court — Judge Blair presiding. January 28, 1921.</p>

<p>Complaint; from Pulaski superior court — Judge E. D. Graham. December 31, 1920.</p>

<p>Action for damages; from Coweta superior court —Judge Roop. March 8, 1931.</p>

<p>Action on contract; from Fulton superior court — Judge George L. Bell. April 8, 1921.</p>

<p>1. Where parties have attempted to execute a contract in writing, all the provisions of the instrument will, so far as permissible and consistent with their meaning when reasonably interpreted, be given a construction that will uphold the instrument as a valid contract, rather than a construction which will render the instrument invalid.</p> <p>2. Where an instrument in writing, purporting to be a bilateral contract, contains mutual promises, which without more and when taken independently of certain subsidiary provisions in the instrument would render the instrument valid as a contract, such subsidiary provisions will not, unless their terms imperatively demand it, be given a construction that will nullify and completely destroy the entire obligations of either party under the instrument and thus render the instrument lacking in mutuality and void.</p>

<p>Action for damages; from city court of Savannah — Judge Freeman. May 16, 1921.</p>

<p>Action on contract; from Chatham superior court — Judge Meldrim. May lá, 1921.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Foreclosure oí lien; from Marion superior court — Judge Munro. April 26, 1921.</p> <p>Johnson foreclosed a laborer’s lien against Harvey, an execution was issued and levied, and the defendant gave • a replevy bond. The affidavit made to foreclose the lien, the execution, and the replevy bond were sent by the sheriff to the office of the clerk of the superior court and left there, the clerk being out at the time. The clerk testified that “he found the replevy bond with the lien foreclosure along about the second day of December, 1920, in his office, and that he inadvertently failed to file the same; that the counter-affidavit was filed with him on the 25th day of April, 1921.” J. G. Butt, of counsel for the plaintiff, testified “that about the second day of December, 1920, he found the bond with the lien-foreclosure in the clerk’s office, and that no counter-affidavit was with the papers.” The sheriff testified: “ The day following the levy of the execution of Charlie Johnson against Mack Harvey I went by Mr. Bainey’s office and attested this bond. I was in a hurry and gave the same to Mr. Bainey, together with the lien affidavit and execution, to give to the clerk of the superior court. The bond has never been in my office, and to-day is the first time I have seen the same since that time. To-day is the first time I have seen the counter-affidavit filed in-the clerk’s office on the 25th day of April, 1921. The counter-affidavit has never been filed with me.” T. B. Bainey, counsel for the defendant, testified, “that he carried the bond to the clerk’s office, that the clerk was not in, and he left the bond and lien foreclosure on the clerk’s desk, that the bond was never filed in the sheriff’s office, and that to-day was the first time he had given the counter-affidavit to the sheriff.” This was April 26, 1921. .The bill of exceptions recites that “ after hearing said evidence the court passed an order nunc pro tunc ordering said' bond filed as of Dec. 2d, 1920.” While the case was on trial the defendant offered a special demurrer to the affidavit of foreclosure. This was overruled. Defendant then presented to the court a counter-affidavit which, upon motion of counsel for the plaintiff, was stricken. The court, upon petition filed by the plaintiff, rendered judgment in his favor. The defendant excepted to the order allowing the entry of filing on the bond nunc pro tunc, to the overruling of the demurrer to the affidavit of foreclosure, to the order striking the counter-affidavit, and to the judgment rendered against him and his securities. .</p>

<p>Action on contract; from Dpson superior court — Judge Searcy. J une 24, 1921.</p> <p>The contract set out in the petition was as follows:</p> <p>“ May 14, 1917. I hereby agree to sell the Pynetree Manufacturing Company, of Atlanta, Georgia, twenty-five cars (25) 6-8-10 & 12 dry boards four-quarters thick, at ten dollars, f. o. b. Crest, Georgia, complete in ninety (90) days. (Signed) J. J. Woodson.”</p> <p>“ Crest, Georgia.”</p> <p>“ Accepted. Pynetree Manufacturing Co., B. E. Plowden.”</p> <p>The petition as amended alleges, that J. J. Woodson is indebted to the petitioners, E. E. Lowe and E. E. Plowden, a partnership doing business under the name oí Pynetree Manufacturing Company, of Atlanta, Georgia, in the sum of $2,387.98, by reason of the following facts: On May 14, 1917, the petitioners entered into a contract with said Woodson (set out as above). (Paragraph 3) Said Woodson has delivered to them on said contract only one car, containing 1038 feet of lumber; and petitioners paid him therefor the contract price, $103.80. (Paragraph 4) Said Woodson, after delivering the said car of lumber, fails and refuses to make any other or further deliveries of said lumber as he contracted to do, and has thereby breached his said contract, and has by the said breach of his said contract injured and damaged petitioners in the sum of $2,387.98, the amount aforesaid, being the difference in the contract price and the market price at the time and place of delivery for the amount of lumber which defendant failed to deliver under his said contract. (Paragraph 5) The market price for the lumber called for by the contract was $21 per 1,000 feet at the time and place of delivery, and the said Woodson is due the petitioners the difference between that price and the contract price, which is $10 per 1,000 feet.</p> <p>The defendant demurred on the grounds: (1) No cause of action is stated. (2) The alleged contract is unilateral, and therefore unenforceable against the defendant. (3) It is so wanting in mutuality as to be unenforceable against the defendant, because under its terms there is no obligation on the part of the plaintiff to purchase the lumber even if offered to the plaintiff. (4) It is only an option to sell on the part of the defendant, and, in the absence of any allegation that the plaintiff elected to exercise the option and purchase the lumber before the expiration of the option', the plaintiff could not recover damages for a failure to sell the lumber. (5) The contract as written is so indefinite and uncertain as to be unenforceable. Paragraph 3 of the petition was demurred to on the ground that it is not alleged when the car of lumber was delivered, whether before or after the time in which all the lumber was to be delivered according to the alleged contract, because if the said writing is only an option, delivery of the car of lumber after expiration of the time would not continue the option in force. Paragraphs 4 and 5, which before amendment did not state the market price of the lumber at the time and place for deliver}', were demurred to because of this omission. The judgment of the trial judge was as follows: “In view of the amendment allowed, the grounds of the special demurrer are overruled; and the general demurrers are sustained and the case dismissed.”</p>

<p>Trover; from Lincoln superior court — Judge Shurley. July 2, 1921.</p> <p>The defendant demurred specially to the description of the cotton.</p>

<p>Where an action on promissory notes against one whose name appeared only on the back in the form of a blank indorsement was brought by a bank not named thereon, and the petition alleged that he “ indorsed ” the notes, that they “ are unpaid and petitioner is the owner and holder thereof, in due course, bona fide and for value,” and that the notes “ were duly and legally protested for non-payment and the defendant notified thereof,” a cause of action was stated, and the petition was not demurrable on the ground that the defendant’s actual relationship to the notes was not disclosed, or that it was not alleged whether or not any of the parties had paid or satisfied the notes or had been released from obligation thereon, or that it was not stated when or how the plaintiff became the owner of the notes.</p>

<p>Complaint; from Tattnall superior court — Judge Strange presiding. July 7, 1921.</p>

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

Appeal; from Tattnall superior court — Judge Strange presiding. July 7, 1931. Mrs. Burkhalter applied for letters of administration on the the estate of Mrs. Libbie Waters, alleging that she was the mother of the decedent.

<p>Complaint; from city court of Statesboro — Judge Proctor. August 6, 1921.</p>

<p>Garnishment; from Madison — Judge W. L. Hodges. August 12, 1921.</p>

<p>1. A cause of action against the city and the construction company, for personal injuries alleged to have been caused by the turning of a plank, upon which the plaintiff stepped in attempting to walk across a ditch and which had been insecurely placed by the construction company where the ditch had been previously crossed by a bridge, was stated in the plaintiff’s petition; and the court did not err in overruling the demurrer to the petition.</p> <p>2. Under the evidence the plaintiff was not entitled to a verdict against either of the defendants.</p> <p>3. As a new trial must result from the ruling in the preceding paragraph, it is unnecessary to consider other grounds of the motion for a new trial.</p>

<p>Complaint; from Gordon superior court — Judge Tarver. August 33, 1931.</p> <p>The action was by W. M. Dacus against D. C. McClain on a promissory note given by the defendant to the plaintiff. The petition alleged, that the note was for purchase-money due on a certain tract of land which the plaintiff bought from Mrs. Harris, taking from her a bond for title to the land, and that upon the execution of the note the plaintiff transferred and delivered to the defendant the bond for title mentioned. The defendant in his answer admitted these allegations but denied indebtedness to the plaintiff, and pleaded as follows: (Paragraph 4) When the bond for title was transferred to the defendant it was agreed that the plaintiff would execute to him good and sufficient titles to enable him to secure a loan from the Federal Land Bank, and would accept as a credit on the said note the money borrowed on the land, and would carry the balance due thereon. (Paragraph 5) The defendant applied to the Federal Land Bank for a loan, but the plaintiff never executed and delivered to the defendant the deed that he had contracted to make so as to enable the defendant to secure the loan, and the defendant was unable, because of conditions beyond his control, to secure a loan from the Federal Land Bank. (Paragraph 6) It was understood, contracted, and agreed between the plaintiff and the defendant that if the loan was not secured from the Federal Land Bank, the plaintiff was to take the land back, the contract between them was to be cancelled, and the plaintiff was to return the notes; and the defendant has offered and still offers to surrender the land and cancel the trade, and is entitled to have his notes returned to him. (Paragraph 7) The defendant attaches as an exhibit the said bond for title, with the transfer thereon, and alleges that under the terms of the transfer, the plaintiff having failed to execute the deed and the defendant being unable to secure the loan, the contract between them is of no effect and at an end; and defendant prays that it be so declared.— The writing on the back of the bond for title is of the same date as the note sued on, and bears the signatures of the plaintiff and the defendant. It says: “For a good and valuable consideration I transfer, sell, and assign the within bond for title to D. C. McLain. It is stipulated and agreed that I execute to W. M. Dacus my note for $3350.00, bearing interest at 5% per cent, per annum, due Jan. 1, 1931, it being agreed that W. M. Dacus will execute good and sufficient title to enable me to procure a loan from the Federal Land Bank of Columbia and accept said loan, giving credit therefor on said note, and said Dacus agrees to carry such balance in two equal notes falling due Jan. 1, 1931, and Jan. 1, 1933.” The note sued on corresponds to the description of the note first mentioned in this agreement.</p> <p>The demurrer is on the following grounds: No defense is set out in the plea. Paragraph 5 is demurred to on the ground that it is not alleged that the defendant ever requested the plaintiff to execute a deed to the land, or that the defendant’s not having the deed hindered him from procuring the loan, or that the execution of the deed would have enabled him to procure the loan; the statement that he was unable, because of conditions beyond his control, to secure the loan, is a mere conclusion of the pleader, not based on facts authoiizing it; and it is not shown that the plaintiff contributed to such conditions, and said statement sets up no sufficient cause for failure to pay the note. Paragraph 6 is demurred to because it appears that the understanding, contract, and agreement there mentioned was not reduced to writing or signed by the plaintiff or by any person authorized by him, within .the meaning of the statute of frauds (Civil Code, § 3333 et seq.), and it appears from the defendant’s answer that the contract between him and the plaintiff was reduced to writing and signed by the parties, and the allegations in paragraph 6 seek to add to and vary the terms of said written agreement.</p>

<p>Action for damages; from city court of Carrollton — Judge Hood, August 5, 1921.</p>

<p>A sale by an administrator with the will annexed, acting under the authority of the power conferred by the will, while legal within the limits prescribed, is in no sense judicial in its character.</p>

<p>Accusation of misdemeanor; from city court of Madison — Judge Lambert. August 20, 1921.</p>

<p>Indictment for larceny after trust; from Chatham superior court — Judge Meldrim. September 10, 1931.</p>

<p>Certiorari; from Tattnall superior court — Judge Sheppard. September 16, 1921.</p>

<p>Damages for injury to a tenant because of the defective condition of steps to the rented house were not recoverable from the landlord, under the allegations of the petition; and the court did not err in sustaining the general demurrer and dismissing the petition.</p>

<p>Mortgage foreclosure; from city court of Miller county — Judge Geer. September 12, 1921.</p>

<p>Lien foreclosure; from Newton superior court — Judge Hutcheson. October 3, 1921.</p>

<p>Attachment; from city court of Eloyd county — Judge Nunnally. September 27, 1921.</p>

<p>As to agency to bind the construction company for the value of trees cut or sand taken from the plaintiff’s land for use in building the bridge, the allegations of the petition were subject to the objections made in grounds 9 and 10 of the demurrer; and the court did not err in dismissing the petition.</p>

<p>Foreclosure of lien; from' city court of Fort Gaines — Judge Turnipseed. October 10, 1921.</p>

<p>Action for damages; from Fulton superior court — Judge Pendleton. November 4, 1921.</p>

<p>Where personal property was sold on the installment plan and by the contract the first payment was to be made in cash, and a check was given for this “ cash ” payment, on the faith of which the property was delivered to the purchaser, the title to the property did not pass from the vendor to the vendee if the bank refused to pay the check because of “ insufficient funds ” and the vendor within a reasonable time demanded possession of the property from the vendee.</p>

<p>1. One who purchases a note after its maturity from a person who has no title to it acquires no title as against the true owner.</p> <p>2. Under the foregoing ruling and the agreed facts of this case, the court erred in directing a verdict for the plaintiff.</p>

<p>Accusation of possessing liquor; from city court of Blackshear — Judge Mitchell. October 22, 1921.</p>

<p>Certiorari; from Wheeler superior court — Judge Graham. September 28, 1921.</p>

<p>Action on insurance policy; from Carroll superior court — Judge Roop. October 6, 1921.</p> <p>Certiorari was denied by the Supreme Court.</p>

<p>Complaint; from Morgan superior court — Judge Munro. November 5, 1921.</p> <p>The action was for the price of goods which it was alleged the defendant ordered but afterwards refused to permit the plaintiff to ship. The ground' of demurrer specifically relied on in the demurrant’s brief in this court was that compliance with the statute of frauds was not shown by the petition, and that no fact was alleged that would take the case out of the statute. From the petition it appears that the alleged orders were written in duplicate forms signed only by initials of the plaintiff’s “ representative,” who it was alleged sold the goods, and were for a total of 100 coils of “5/16 Bagdad Cot. Rope, price 49-%;” that the goods were ordered May 24, 1920, to be sent in two shipments of 50 coils each, one on October 30 and the other on November 30, 1920; that receipt of the orders was acknowledged in writing by the plaintiff on June 6, 1920, and that on the 8th and 10th of October, 1920, the defendant addressed to the plaintiff letters which it was alleged referred to 'these orders, the first requesting cancellation, and the second stating that the defendant was compelled' to cancel and would not receive the rope if shipped. It is alleged that the defendant declined to cancel the orders. It is alleged also that “the acknowledgment . . in writing of said orders . .' by the defendant in seeking a cancellation of the same became and was a contract between petitioner and the defendant whereby petitioner contracted to sell to the defendant and the defendant contracted to buy from petitioner 100 coils of 5/16 inch Bagdad cotton rope at and for the price of 49-% cents per pound,” etc. The defendant contended that the orders were not identified by these letters and that an essential element of a contract of sale — the price — was not fixed in writing, no price being mentioned in the letters, and the price figures “ 49-%,” without the word “ cents,” or any other indication of their meaning, not being sufficient to show that they meant 49-% cents per pound as alleged.</p> <p>By amendment the plaintiff alleged that no verbal or written order other than those mentioned was given to it by the defendant, and set out the plaintiff’s letter to the defendant, stating that the defendant’s “ order for 100 tubes Bagdad cotton rope has been entered. Shipments to be made as near as possible to the dates specified in your order for 50 tubes at a time.” It was further alleged that according to the universal custom and usage of the business of buying and selling rope, in which the plaintiff and defendant were engaged, the phrases “ coils of cotton rope ” and “ tubes of cotton rope ” meant the same thing; that according to the universal custom and usage of the business, rope was bought and sold by the pound, and where a figure was placed beneath or alongside the word “price,” it represented the price in cents per pound, and a coil or tube of rope meant a coil or tube varying in weight from 20 to 35 pounds; and that the custom and usage in each of the particulars stated was known to both plaintiff and defendant and became a part of the contract; that the coils of rope ordered by the defendant had an average weight per coil of 24.61 pounds and an aggregate weight of 2,461 pounds. It was alleged that, the defendant having refused to permit a shipments of the goods after the purchase thereof, and having notified the plaintiff that the goods would not be accepted if shipped, and the goods having been stored as the property of the defendant, the defendant became indebted to the plaintiff in a stated sum (for the quantity stated above, at the price stated), for which the plaintiff prayed judgment.</p> <p>A copy of one of the orders attached to the petition as exhibits (which were identical except as to date of shipment) is as follows:</p> <p>American Mills Company, Economy Products.</p> <p>Atlanta, Georgia, TJ. S. A., 5/24/1920.</p> <p>Please enter our order and ship as follows:</p> <p>To C. P. Bush Hdwe. Co., Columbus, Ga.</p> <p>Quantity. • Article. Price.</p> <p>50 coils 5/16 Bagdad Cot. Pope 49%</p> <p>Ship Oct. 30, less Frt.</p> <p>Seller’s responsibility ceases on delivery to transportation company, whether sold f. o. b. shipping point or delivered. Delivery as near date specified as possible. Unless otherwise provided goods are sold f. o. b. shipping point. This order not subject to countermand. Seller’s willingness to tender f. o. b. any unspecified quantities on delivery date shall be a fulfillment of his contract and purchase price shall be due with addition of subsequent accrued charges. Subject to acceptance at home office. Atlanta, Ga. Each invoice to stand as a separate sale. This agreement expressing the entire contract between parties.</p> <p>Sold by A.A.B.</p> <p>The material parts of the defendant’s letter were as follows:</p> <p>“You have our order on file for 100 coils 5/16 cotton rope, one-half to be shipped October 30th and the other to be shipped November 30th. Owing to the failure of the cotton crop in this section, we will be unable to use this'rope, and request that you cancel and acknowledge receipt.”</p> <p>“In reply to yours of the 12th, regarding the 100 coils of 5/16 rope we canceled. . . This privilege of cancellation we always reserve, as same as you do. . . We are compelled to cancel and positively will not receive the rope if shipped.”</p> <p>The demurrer contained, in addition to the contentions stated above, a special ground that the name of the alleged representative of the plaintiff was not given, and grounds attacking various allegations as being mere conclusions of the pleader.</p>

<p>Action on contract; from' city court of La Grange — Judge Duke Davis. October 29, 1921.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Accusation of giving worthless check; from city court of Soperton — Judge Wallace. November 5, 1921.</p>

<p>Complaint; from city court of Greensboro — W. H. Fisher, judge pro hae vice. October 20, 1921.</p>

<p>Action on insurance policy; from Newton superior court — Judge Hutcheson. October 18, 1921.</p> <p>Certiorari was granted by the Supreme Court.</p>

<p>Complaint; from Monroe superior court. — Judge Malcolm D. Jones presiding. September 30, 1921.</p>

<p>Indictment for cheating and swindling; from Berrien superior court — Judge Dickerson. November 18, 1921.</p>

<p>Under the allegations of the petition (construing them most strongly against the plaintiff), she was wanting in ordinary care when she attempted to descend the insufficiently lighted stairway in the defendant’s hotel; and she was not entitled to recover for the consequent injury alleged.</p> <p>Damages are not recoverable in this State on account of mental pain or anguish unaccompanied by physical injury or pecuniary loss.</p>

<p>Complaint; from Banks superior court — Judge Fortson. November 12, 1922.</p>

<p>Indictment for making intoxicating liquor; from Bulloch superior court- — Judge Strange. November 10, 1921.</p>

<p>1. Where the track of a railroad company crosses the track of another railroad company in a city street, the duty of keeping the crossing in repair rests upon both companies, and either may and should make all necessary repairs; but the company making them may recover the expense of such repairs from the other company, if, as between the companies, the duty of making the repairs was upon the latter.</p> <p>2. Where there is a crossing of the tracks of two railroad companies in a . city street, it is ordinarily, as between the companies, the duty of the crossing company, at whose instance and for whose benefit the crossing was made, to keep the crossing in repair.</p> <p>3. Under the foregoing rulings and the facts of the case, the trial judge, who passed upon the case without the intervention of a jury, did not err in finding in favor of the plaintiff.</p>

<p>Indictment for sale of liquor; from Walker superior court — Judge Wright. November 9, 1921.</p>

Indictment for misdemeanor; from Long superior court — Judge Sheppard. November 13, 1931.

<p>Indictment for larceny from house; from Pulaski superior court — Judge Graham. November 12, 1921.</p>

<p>Indictment for making liquor; from Harris superior court — Judge Munro. November 3, 1921.</p>

<p>Accusation of larceny; from city court of Brunswick — Judge Butts. December 17, 1.921.</p>

<p>Indictment for forgery; from Bibb superior court — Judge Malcolm D. Jones. December 10, 1921.</p>

<p>Indictment for making intoxicating liquor; from Walker superior court — Judge Wright. December 3, 1921.</p>

<p>Indictment for larceny of cow; from Long superior court — Judge Sheppard. November 12, 1921.</p>

<p>The evidence as to tracks and the finding of stolen property, and the other circumstances, did not authorize the conviction; and for this reason the trial judge erred in overruling the motion for a new trial.</p>

<p>Indictment for burglary; from Putnam superior court — Judge Park. October 24, 1921.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. June 15, 1921.</p>

<p>Complaint; from city court of Valdosta — Judge Cranford. September 30, 1921.</p> <p>Certiorari ivas denied by the Supreme Court.</p>

<p>Action on contract; from Fulton superior court — Judge Pendleton. November 18, 1921.</p>

<p>Complaint; from city court of Carrollton ■— Judge Hood. October 27, 1921.</p>

<p>Upon the agreed, statement of facts, it was not error to sustain the affidavit of illegality, based upon the ground that the tax levy for county purposes exceeded, to the extent of one and one half mills, or $1.50 on the $1,000, fifty per cent, of the State tax of 5 mills, or $5 on the $1,000.</p>

<p>Description, and names of counsel, as in the case next before.</p>

<p>Action on insurance policy; from city court of Dawson — Judge Edwards. October 28, 1921.</p>

<p>1. Under some circumstances a person could be guilty of manufacturing intoxicating liquors without having the liquors in his possession or control. It follows, that upon the trial of .one charged with possessing intoxicating liquors, a plea of autrefois convict, setting up that a few days before the call of the case, and during “ the present term of this court,” the accused had been convicted of the offense of manufacturing intoxicating liquors, and that the court had jurisdiction of the crime and of the person, and that the charge against him of manufacturing intoxicating liquors, upon which he had been convicted, and the present charge of possessing such liquors, are based upon the same facts and grew out of one and the same transaction, and that the lesser offense of possessing intoxicating liquors was merged into the greater offense of manufacturing such liquors, is insufficient in law and is not a good plea of autrefois convict.</p> <p>2. It was not error for the court to admit in evidence upon the trial of this case the defendant’s statement made to the jury in his trial in a previous case where he was charged with manufacturing whisky, the statement being read by the official stenographer of the court from his notes and without being sworn. This evidence was relevant, and was not inadmissible for any reason assigned. The proper construction of the ground of the motion for a new trial which complains of the admission of this evidence shows that it (the statement of the defendant) was objected to because it was not sworn testimony, but that no objection was made on the ground that the stenographer himself was not sworn before he read the statement to the jury.</p> <p>3. The excerpt from the charge of the court, complained of in the motion for a new trial, was not error for any reason assigned.</p> <p>4. The evidence amply authorized the conviction of the accused, and the court did not err in overruling the motion for a new trial.</p>

<p>Action for damages; from Eulton superior court — Judge Pendleton. October 20, 1921.</p> <p>This was a renewal suit brought within six months of the dismissal of the original suit. The petition as amended (its formal parts and a copy of the petition in the first suit being omitted) is as follows;</p> <p>“ 1. That the defendant is a resident of said State and county, a regular practicing physician, practicing the profession of medicine for compensation in said State and county.</p> <p>“ 2. That this is a renewal of suit No. 39170, filed in the clerk’s office of the superior court of said county on the 13th day of December, 1917, between the same parties and the same cause of action, said suit No. 39170 having been dismissed by plaintiff’s attorney on July 16, 1921.</p> <p>" 3. Petitioner alleges that he has beefi damaged in the sum of twenty-five thousand dollars ($25,000), as will hereinafter appear from the facts set out.</p> <p>“4. Petitioner shows that on Sunday evening, the 14th day of October, 1917, petitioner’s wife (Mrs. Mollie Sweat) was taken iH.</p> <p>“ 5. Petitioner shows that he immediately called at the home of the defendant for the purpose of securing said defendant’s services to wait upon petitioner’s wife, but petitioner did not see defendant until the following morning, October 15, 1917.</p> <p>“ 6. Petitioner shows that defendant responded to petitioner’s call and agreed and promised to visit and wait upon petitioner’s wife, and did so visit and wait upon said wife on Monday, October 15, 1917, at about 7 o’clock a. m. Defendant examined her and stated she was in child labor, and thereupon treated and waited upon petitioner’s wife for that trouble and in that respect.</p> <p>“ 7. After remaining and treating petitioner’s wife for about one hour, for child labor, defendant left said wife, stating he would return to continue the treatment of petitioner’s wife for child labor, at 1 o’clock p. m., Monday, the 15th, 1917. Defendant did not call upon said wife at 1 o’clock as he had promised, as alleged and set out in this paragraph, but not until many hours afterwards, viz., about 5 p. m.</p> <p>“ 8. Petitioner shows that he went to defendant’s house about 4 o’clock p. m., Monday, the 15th day of October, 1917, and urgently requested defendant to return and look after and wait on petitioner’s wife. Defendant did so return in about one hour, and remained about thirty minutes, continuing the treatment of his said wife, as for child labor, and stated to those present that the child would be born in an hour. Defendant then left and returned no more to petitioner’s wife and home. Petitioner charges that defendant’s so leaving at this time was an act of gross carelessness and neglect of said petitioner’s wife.</p> <p>“ 9. Petitioner shows that his wife died on Tuesday, October 16, 1917.</p> <p>“ 10. Petitioner shows that petitioner’s wife was not in child labor at all at the time defendant waited upon and treated her for same, but her illness was caused by an entirely different thing, viz., gastritis.</p> <p>“ 11. Petitioner alleges and charges that the death of his wife was due to the unskilful diagnosis and treatment by defendant as a medical practitioner, and to the gross carelessness and neglect in his treatment and handling of said wife’s illness.</p> <p>“ Petitioner prays that he may recover of the defendant in the sum of twenty-five thousand dollars ($25,000), by reason of the facts set out m this petition.”</p> <p>The defendant interposed a general demurrer to the petition, and the following special demurrer: " Paragraph 11 of the plaintiff’s petition should be stricken, because the allegations thereof are vague and indefinite and are conclusions of the pleader.”</p>

<p>Conviction of manslaughter; from Dooly superior court — Judge Gower. November 17, 1921.</p>

<p>Accusation of taking oysters from private bed; from city court of Savannah — Judge Bourke. October 29, 1921.</p>

<p>Indictment for making liquor; from Walker superior court — Judge Wright. November 9, 1921.</p>

<p>Action for damages; from city court of Hall county — Judge Sloan. May 28, 1921.</p>

<p>Complaint; from Carroll superior court — Judge Boop. June 30, 1921.</p>

<p>Action for damages; from Habersham superior court — Judge J. B. Jones. September 3, 1921.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Services in negotiating in behalf of the defendant for the purchase of real estate which the defendant afterwards bought directly from the owner at a price higher than the defendant had authorized the plaintiff to offer did not, under the allegations of the petition, give a cause of action to the plaintiff, and the court erred in overruling the demurrer to the petition.</p>

<p>Action for damages; from Chatham superior court — Judge Meldrim. October 4, 1921.</p>

<p>Action for damages; from Richmond superior court — Judge Henry C. Hammond. October 1, 1921.</p>

<p>Complaint; from city court of Floyd county — Judge Nunnally. September 24, 1921.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

Appeal; from Chatham superior court — Judge Meldrim. November 14, 1921. On appeal from an award of the Industrial Commission, the judge of the superior court, who heard the case upon an agreed statement of facts, which is hereinafter set out, rendered an opinion as follows: “In the view I take of this case, I do not deem it necessary to decide the several issues raised by the pleadings. Whatever right of action the petitioner has is derived from the statute.

<p>Indictment for seduction; from Gwinnett superior court — Judge Fortson. November 17, 1921.</p>

<p>Accusation of cheating and swindling; from city court of Wrightsville- — Judge Sturgis presiding. December 20, 1921.</p>

<p>Action for damages; from McDuffie superior court — Judge Henry C. Hammond. June 8, 1921.</p>

<p>Action for breach of contract; from Stewart superior court — Judge Littlejohn. June 11, 1921.</p>

<p>Complaint; from Toombs superior court — Judge Hardeman. May 21, 1921.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. May 19, 1921.</p>

<p>Complaint; from city court of Savannah — Judge Kourke. June 18, 1921.</p>

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

<p>Action for damages; from Haralson superior court — Judge Irwin. December 10, 1920.</p>

<p>Action for damages; from Upson superior court — Judge Searcy. July 2, 1921.</p>

<p>Action for damages; from Richmond superior court- — Judge Henry C. Hammond. June 6, 1921.</p>

<p>Complaint; from city court of Macon- — Judge Gunn. June 18, 1921.</p>

<p>Action for damages; from Jefferson superior court — Judge Hardeman. August 10, 1920.</p>

<p>Action for damages; from Bibb superior court — Judge Mathews. March 2, 1920.</p>

<p>Complaint; from Irwin superior court — Judge Eve. June 7, 1921.</p>

<p>Action for damages; from city court of Oglethorpe — Judge Greer. May 16, 1921.</p>

<p>Complaint; from city court of Floyd county — Judge Nunnally. June 4, 1921.</p>

<p>Action for damages; from McIntosh superior court — Judge Sheppard. May 24, 1921.</p>

<p>1. While a stipulation in a contract for the shipment of live stock, that “ before the property is removed from the possession of the carrier or mingled with other property, the shipper, owner or consignee shall inform in writing the delivering carrier of any injury to the property,” is reasonable and valid, so that, in the absence of any express or implied waiver of it by the carrier, a recovery could not be legally had from the carrier for such an injury where the evidence shows that the plaintiff did not comply with the stipulation (Southern Ry. Co. v. Tollerson, 129 Ga. 647, 59 S. E. 799; Roberts v. Ga. &c. Ry. Co., 10 Ga. App. 100, 72 S. E. 942), yet the plaintiff does not sue upon the express contract of affreightment, but brings his action in tort, and where it is the carrier who sets up by its plea and introduces in evidence the bill of lading with its stipulation as to notice, the burden of proof lies upon the carrier to sustain its affirmative plea and defense by showing the failure of the plaintiff consignee, the shipper and the owner, to give the notice thus required. Southern Ry. Co. v. Bunch, 27 Ga. App. 689 (109 S. E. 523). The carrier here failed to offer such proof.</p> <p>2. While it has been held that a carrier of live stock may by special contract make reasonable stipulations in reference to matters which are merely incidental to the transporation of the animals, such as loading and unloading and- caring for stock, it is- not the law that such a stipulation, obligating the shipper to unload the animals from the car at his own risk and expense and providing that any helpers which might be furnished by the carrier for the shipper’s accommodation should be “ deemed employees of the shipper ” while so engaged, can be construed as relieving the carrier from the result of what might be deemed to be its own negligence in failing to provide safe and proper facilities for unloading the stock. Brannon v. Atlanta &c. R. Co., 4 Ga. App. 749, 751 (62 S. E. 468); Cranor v. Southern R. Co., 13 Ga. App. 86 (2) (78 S. E. 1014). But where, as here, it is shown without dispute that the alleged inadequate facilities for unloading were known to the shipper, but he nevertheless undertook through his own special agent to unload the stock himself according to a mode and method acquiesced in by him, then and in such event the risk of their being thus injured must be taken to have been assumed by the shipper (Brannon v. Atlanta &c. R. Co., supra); and it therefore follows that the verdict and judgment for the plaintiffs is without evidence to support it.</p>

<p>Where a promissory note given for interest on a prior note executed since , the adoption of the usury act of 1916 (Ga. L. 1916, p. 48) was for an amount in excess of lawful interest, it was wholly unenforceable; and in an action thereon to which this defense was pleaded it was error to direct a verdict for the amount of interest which had legally accrued at the time the note sued on was given.</p>

<p>Action for damages; from city court of Macon — Judge Gunn. June 28, 1921.</p> <p>Bowden sought to recover for personal injuries received in the course of his employment. The trial court awarded a nonsuit and he excepted. The petition alleged that the plaintiff was employed by the defendant as a lead burner, in the repairing of lead-tanks in its plant, and that while so engaged, under the express orders of one designated as the vice-principal or alter ego of the defendant, he was injured by a piece of lead, weighing approximately 200 pounds, falling upon him from a five-story building. By amendment he alleged that while engaged in the scope of his duties, and while going to answer the roll call in obedience to instructions of the superintendent, alter ego, or vice-principal of the defendant, he was injured as described. From the evidence it appears that the plaintiff had been employed by the defendant for a number of years as a fireman. On the day of his injury he was ordered to assist a lead burner in repairing the lead-tanks of the defendant.. This work was completed early in the day, and the plaintiff, without further instruction, proceeded to gather up the tools which had been used inside the building, and placed them behind the rear door, inside the building. This was his usual and regular work. The whistle blew at 4 o’clock as a signal for the employees, including the plaintiff, to report in front of and inside the building, for roll call. He opened the back door, stepped out in the yard at the back of the building, and was about to go around the building in order to get in front to answer roll call. After getting outside the building and proceeding to the front he was injured by a piece of lead falling upon him from the third floor. This lead was thrown down from the upper-story window by a co-employee, who was doing so in obedience to the orders of the same foreman who had ordered the plaintiff to assist the lead burner. No lead had ever before been thrown out on that side — “they throwed it out on the other side, next to the street.” The plaintiff did not know they were throwing lead out on that side, and on this occasion was not in any way warned of the danger. At the conclusion of the evidence for the plaintiff the defendant moved for a nonsuit, on the ground, among others, that the negligence, if there was any, was that of a fellow servant, for which the master was not responsible.</p>

<p>Trover; from city court of Macon — Judge Gunn. July 1, 1921.</p>

<p>Certiorari; from Bibb superior court — Judge Mathews. July 11, 1921.</p>

<p>Action for damages; from Wilkinson superior court — Judge Park. July 21, 1921.</p> <p>Certiorari was granted by the Supreme Court.</p>

<p>Action for damages; from Fulton superior court — Judge Pendleton. June 14, 1921.</p>

<p>Certiorari; from Whitfield superior court — Judge Tarver. July-26, 1921.</p>

<p>Complaint; from city court of Savannah — Judge Freeman. August 6, 1921.</p>

<p>Trover; from city court of Monroe — Judge Stone. August 16, 1921.</p>

<p>Action for damages; from city court of Wrightsville — Judge Kent presiding. August 29, 1921.</p>

<p>Appeal; from Henry superior court —Judge Searcy. August 15, 1921.</p>

<p>Where there has been a rescission of a contract for the sale of land possession of which has remained in the vendor, the vendee named in the vendor’s bond for title to the land may, in the absence of any agreement to the contrary, recover from the vendor' the amount of the purchase-money paid, less any damages occasioned to the vendor by reason of the vendee’s failure to perform the contract.</p>

<p>Petition for validation of schoolhouse bonds; from Johnson superior court — Judge Kent. December 3, 1921.</p> <p>Certiorari was denied by the Supreme Court.</p>

<p>Complaint; from Newton superior court — Judge Hutcheson. July 9, 1921.</p> <p>J. T. Bird, as administrator of Mrs. N. C. Bird, sued Amanda Moon and her husband, B. M. Moon, upon a promissory note payable to the decedent and signed by the defendants jointly. The defendant filed an answer in which it was alleged that a gift of the note had been made by Mrs. Bird to Mrs. Moon, and that therefore the plaintiff was not entitled to recover. J. T. Bird was a stepson and Mrs. Moon was a sister of Mts. Bird. During the trial of the case the court permitted Mr. Moon, the husband, to testify as follows: “I have heard conversations between Mrs. Bird and my wife in regard to this note (the note sued on). She told my wife she gave it to her and retained the note for the purpose of collecting the interest — she gave that note to my wife and kept it in her possession for the purpose of collecting the interest. That is all there is to it. She delivered the note to my wife, and my wife had the note in her possession and delivered it back to her for the purpose of collecting the interest. Mrs. Bird and my wife had this conversation right down there at my house when the note was given right down there. She gave the note there and told her right there and then that all she wanted with the note was to collect the interest. She delivered the note to my wife then and my wife gave it back to her to keep to collect the interest. The first conversation was down here in the Bank of Newton County, when the note was made, and I heard the,same conversation again when my wife had the note in her possession again. After taking this note then and there in the bank she delivered the note to Mrs. Moon. She said, ‘ This is your note. I give you this note.’ She always called her ‘ Sister,’ that is, Amanda Moon. This transaction of this note being turned over to Mrs. Moon, nobody but myself and Mrs. Bird knew it.” This testimony was objected to by the plaintiff at the time it was offered. The verdict was for the defendants, and the plaintiff made a motion for a new trial, in which he excepted to the admission of the evidence set out above. The case came to this court on exceptions to the overruling of the motion for a new trial.</p>

<p>Affidavit of illegality; from Putnam superior court — Judge Park. July 23, 1921.</p> <p>Middle Georgia Bank interposed an affidavit of illegality to the levy of an execution issued on a default judgment which Twilley & Hodges obtained against it as garnishee. The sheriff’s entry of service, made on January 4, 1921, is as follows: “I have this day served summons of garnishment, based on the within affidavit and bond, on Middle Georgia Bank, service perfected by serving said summons on B. W. Ingram, the agent and person in charge of said bank.” All issues of fact raised by the traverse to the sheriff’s return are settled by an agreed statement, the material parts of which are as follows: “B. W. Hunt is the president of Middle Georgia Bank, and . . was president . . oh the 4th of January, 1931, . . [He] resided in Batonton, Putnam County, Georgia, . . [He] is usually present in Middle Georgia Bank during banking hours. . . Said B. W. Hunt as president of Middle Georgia Bank has the same duties, obligations, and powers as the presidents of other State banks in Georgia have who live in the county or district where the corporation is doing business. . . B. W. Hunt, if sworn, would say that he was the agent and person in charge of said bank on January 4, 1931. . . B. W. Ingram was the cashier and a director in Middle Georgia Bank on the 4th of January, 1931. . . A summons of garnishment directed to Middle Georgia Bank was in fact served on said B. W. Ingram. . . E. W. Ingram was the only officer of said Middle Georgia Bank present in said bank when said summons was served.” The case was submitted to the judge of the superior court under this statement of facts, with the agreement of counsel “that the only question involved in this case is a' matter of law, to wit, whether service of the summons of garnishment directed to Middle Georgia Bank, served on E. W. Ingram as the agent and the person in charge of the office and place of business of said bank, was in fact and in law good service on Middle Georgia Bank P ” The trial judge held that the alleged service on the bank was void.</p>

<p>Where a carrier fails to deliver goods at destination, section 2798' of the Civil Code (1910) confers jurisdiction of the case for resulting damage on the courts of the county where the failure to deliver occurred,— that is, the county of the destination of the goods,— whether the action be ex contractu or ex delicto. Civil Code (1910), § 2798. The failure to deliver at destination, or to deliver in good order, is a breach -of the contract of carriage and also a breach of the carrier’s public duty, the latter being a tort; both theoretically located at the place of performance, the destination of the shipment.</p>

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

<p>Certiorari; from Tattnall superior court — Judge Strange presiding. July 7, 1921.</p>

<p>Motion to vacate judgment; from Haralson superior court — Judge Irwin. June 15, 1921.</p>

<p>Certiorari; from Fulton superior court — Judge George L. Bell. June 10, 1921. '</p> <p>The vendor in a conditional sale of a sewing machine brought trover for it against the vendee, in the municipal court of Atlanta. The petition was filed August 26, 1920, and a form of original process was annexed, purporting to bear test in the name of the judge and requiring the defendant to appear on the third Monday in September following; but the original process was unsigned by the clerk or his deputy. On September 20, 1920, the judgje passed an order providing that, as “ process has never been served on the defendant in the above-stated case as required by law, to the term to which the suit and process was made returnable, to wit, third Monday in September, 1920, September f B ’ term . . , said suit and process be and the same is hereby amended and made returnable to the first Monday in October, 1920, October ‘ A’ term thereof,” and that the defendant be served with “ a copy of said suit and process, and also a copy of this order.” On October 1, 1920, the marshal of the court entered his return, showing that on that date he served the defendant “personally with a copy of the within petition and process,” and showing the seizure of the property. It was admitted in open court, or shown without dispute, that “ a copy process duly signed by the clerk of the court, dated August 26, 1920, returnable to the third Monday in September, 1920, had been in fact served upon the defendant, but that “ no copy of the order extending the time for service and making -the case returnable to a later term of -court had ever been served upon her.” The defendant neither pleaded nor made any appearance in this suit. On October 26, 1920, during the October “ B ” term of the court, beginning the third Monday in October, the plaintiff, electing to take a judgment for the property, obtained judgment therefor, but not for any amount as hire. On November 3, 1920, the defendant in the trover proceeding filed in the same court a suit against the vendor, to recover $34 on open account, on the theory that, as the vendor had rescinded the contract of conditional sale by retaking possession of the property, and as the judgment rendered against the defendant in the trover proceeding was illegal and void because of the defective original process and service, she was entitled to a refund of all cash payments made to the vendor on the contract of purchase. The defendant in the present suit, by its plea and answer or in open court, admitted its receipt from the plaintiff of the alleged payments and its possession of the property, but claimed a larger amount as set-off or recoupment for the use and hire of the property while in the plaintiff’s possession and for deterioration in the value by such use. But as its main defense the defendant pleaded res judicata, because of the judgment in the trover suit. It was agreed by counsel in open court that this former proceeding “constituted res adjudicata to the present action, provided that the said former judgment was a legal and binding judgment as it stood.” The trial judge having sustained this plea, the plaintiff sued out certiorari, upon the grounds that there was no res judicata, for the reason that the former judgment was void, and not merely voidable, and that, as the defendant had admitted its possession both of the property and of the money payments, the plaintiff was entitled to recover the latter. Error is assigned on the. sustaining of the certiorari.</p>

<p>Certiorari; from Tattnall superior court — Judge Sheppard. July 7, 1921.</p>

<p>Certiorari; from Tattnall superior court — Judge Strange. July 23, 1921.</p>

<p>Complaint — appeal; from Elbert superior court — Judge W. L. Hodges. September 13, 1921.</p>

<p>Complaint; from city court of Savannah — Judge Freeman. September 16, 1921.</p>

<p>An appeal to the superior court lies from a judgment of the court of ordinary dismissing a petition to remove an administrator.</p>

<p>Complaint; from city court of Bainbridge •— Judge Spooner. September 30, 1921.</p> <p>The original petition was as follows: “ The petition of American Railway Express Company respectfully shows: 1st. That E. J. Willis is a resident of said county. 2d. That on the 27th day of February, 1920, the said E- J- Willis was doing business as Willis Drug Company in the city of Bainbridge, said county. 3d. Your petitioner delivered by mistake a package of cigars of the value of $63.75 to said Willis Drug Company on the 27th day of February, 1920, which said package was marked and consigned to Mills Pharmacy. 4th. Your petitioner shows that said Willis Drug Company fails and refuses to return said shipment to your petitioner for delivery to its true owner, all to the injury of your petitioner in the sum of $63.75.” An amendment was allowed, as follows: " ist. That it (the plaintiff) is a common carrier. 2d. That on the 26th day of February, 1920, the package of cigars was regularly received into its possession for transportation to Mills Pharmacy. 3d. That said package of cigars was of the value of $63.75. 4th. That said package of cigars was demanded of E. J. Willis on the 6th day of September, 1920. 5th. That the right of possession of said property is in petitioner.” The allowance of the amendment was objected to by defendant, but no exceptions pendente were preserved, nor was there a cross-bill of exceptions.</p>

<p>Action for damages; from Eichmond superior court — Judge Henry C. Hammond. December 2, 1921.</p>

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

<p>Complaint; from city court of Louisville — Judge Barwick. December 10, 1919.</p>

<p>1. “ The general manager of a mercantile and farming corporation is with.out authority, by virtue of his office alone, to employ counsel to represent' employees thereof who are charged with larceny of property alleged to be that of third persons, but claimed by such corporation as its own, in the absence of express_ authority from 'the corporation, or ratification by the corporation of his act in so employing counsel, or by a previous course of dealing known to the corporation, from which such authority might be inferred; and this is true although prior to the indictments against these employees a third person who claimed one of the hogs alleged to be stolen had prosecuted a possessory warrant for the same against the corporation, and although the property alleged to be stolen by the employees was claimed by the corporation and found upon its premises where the employees were working.”</p> <p>2. “ Where an attorney at law is employed by a corporation as its general counsel for one year, the position having no fixed salary attached, but the attorney is to be paid a separate fee for every specific legal service rendered the corporation, and there is no agreement between the attorney and the corporation as to any retaining fee, such attorney is not entitled, as a matter of right, at the end of his year’s employment, to a retaining fee in addition to the fees paid him for specific services rendered his client during the period of his employment.”</p>

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

<p>Complaint; from city court of Hall county —• Judge Sloan. September 10, 1921.</p>

<p>Forfeiture of recognizance; from Floyd superior court — Judge Wright. July 2, 1921.</p>

<p>Certiorari; from Richmond superior court — Judge Henry C. Hammond. October 31, 1921.</p>

<p>Action for damages; from Floyd superior court — Judge Wright. December 10, 1921.</p>

<p>Conviction of manufacture of liquor; from Harris superior court- — -Judge Munro. November 16, 1921.</p>

<p>Confiscation; from city court of LaGrange —• Judge Duke Davis. December 10, 1921.</p> <p>This was a proceeding to condemn and sell a motor-vehicle which the petition alleged was conveying "intoxicating liquor while Ed Harrison, the alleged owner of the vehicle, was operating it. Harrison, in his answer, denied the allegations of the petition. The ease was tried by the court without a jury, and the trial resulted in a judgment condemning the vehicle and ordering that it be sold., Harrison made a motion for a new trial on the usual general grounds and the ground that the court erred in excluding certain testimony.</p> <p>From the evidence it appeared that the sheriff and others saw Ed Harrison drive to a certain church a car containing other persons and stop the car there, and that Jerry Traylor got out of the car, went from it “a piece,” turned back, took a bottle from the back of the car, and ran with it through some bushes, and the sheriff quickly followed Traylor and found a bottle of whisky lying by the side of a path, whereupon he arrested Harrison and the others in the car and seized the car; that Harrison had made several trips back and forth in the same direction; that on seeing the sheriff he made, no effort to leave, and that he said they “took Jerry up on the other side of the creek,” and he “did [not?] know Jerry had any whisky when he got in the car.” . Harrison testified: “ I did not see any liquor. I did not have any liquor in the car. I know that Traylor did not carry any liquor in his hand. They told me he was Jerry Traylor. I did not know who he was. I did not go back and forth to the church but one time, and that was to take my wife. . . I was on the front Seat of my car, and this negro who they said was Jerry Traylor jumped on the running board two or three hundred yards from the church, and I told him, if he was going to ride, to get in the car, the running board was weak. If he had any liquor, I did not know it.” Other witnesses who were in the car testified that they did not see any liquor taken from it. There was evidence as to the good character of the defendant.</p>

<p>Complaint; from city court of Claxton- — Judge Elmore. December 19, 1921.</p>

<p>Complaint; from Wheeler superior court — Judge Graham. November 19, 1921.</p>

<p>Indictment for robbery; from Bibb superior court — Judge Malcolm D. Jones. December 10, 1921.</p>

<p>Indictment for misdemeanor; from Bulloch superior court — Judge Strange. December 3, 1921.</p>

<p>Complaint; from Bockdale superior court — Judge Hutcheson. December 3, 1921.</p>

Certiorari; from Fulton superior court — Judge Pendleton. October 3, 1921. Barrett sued Blalock in the municipal court of Atlanta upon a series of promissory notes.

<p>Certiorari; from Fulton superior court — Judge Pendleton. October 3, 1921.</p>

<p>Complaint; from Chatham superior court — Judge Meldrim. December 21, 1921.</p> <p>Certiorari was granted by the Supreme Court.</p> <p>In this suit S. H Bullock, as receiver for a banking corporation of the State of Florida, sought to recover from- Edgar J. Oliver the amount of an assessment upon 23 shares of stock. The defendant was a resident of Chatham county, Georgia, and the suit was brought in the superior court of that county. The material portions of the Florida statute, under which the receiver was appointed and upon which this action is based, is as follows: “ On becoming satisfied, . . upon satisfactory evidence thereof, that any bank . . doing business in this State, under the State laws, has become insolvent and is in default, . . the rights, privileges and franchises shall be subject to be forfeited, and the State Comptroller may forthwith designate and appoint a receiver to take charge of the assets and affairs of such bank. . . Such receiver, under the direction and supervision of the comptroller, shall take possession of the books, records and assets of every description of such bank . . and in his name shall sue for and collect all debts, dues and claims belonging to it, and upon the order of the court of competent jurisdiction may sell or compound all bad or doubtful'debts . . on such terms as the court shall direct; and may if necessary to pay the debts of such bank, . . sue for and enforce the individual liability of the stockholders. Such receiver shall pay all money received by him to the State Treasurer, to be held as a special deposit for the use and benefit of creditors. . . The comptroller, immediately upon appointing such receiver, shall serve notice upon the president, or upon any vice-president or cashier . . or other person having the charge or management of any such bank, . . informing him or them in such notice of his action in appointing such receiver, and notifying him or them or it that he will apply on a date therein named, not to exceed ten days from the date of service of such notice, to some circuit judge having jurisdiction over the same, for an order confirming his action and the appointment of a receiver for such banking institution; and such bank . . may at such hearing contest before such, circuit judge the rightfulness and legality of such action of the comptroller in appointing such receiver.” And further, “ Stockholders of every banking company shall be held individually responsible, equally and ratably and not for one another, for all contracts, debts and engagements of such company to the extent of the amount of their stock therein at the par value thereof in addition to the amount invested in such shares.”</p> <p>The petition alleged that the receiver, in pursuance of his statutory authority, ordered a 100% assessment or levy against the stockholders of the insolvent hank, which was for the full amount of their statutory liability on the stock, and that the defendant, by reason of the provisions of the statute and the assessment against him and the other stockholders, is liable to the plaintiff, as receiver, for the benefit of the creditors of the insolvent bank, in the sum of $2,300.</p> <p>The defendant demurred both generally and specially to the petition. The court overruled the demurrer and the defendant excepted.</p>

<p>Accusation of misdemeanor; from city court of Alma — .Judge Tuten. November 26, 1921.</p>

<p>Conviction of manslaughter; from Union superior court — Judge J. B. Jones. December 18, 1921.</p>

<p>Action for damages; from Bichmond superior court — Judge Henry C. Hammond. December 31, 1921.</p> <p>Solomon Livingston brought suit against E. H. Callaway in his representative capacity as executor of the estate of J. B. White, deceased. The substance of the material allegations of the petition as amended is: that J. B. White, deceased, was, from August 1, 1900, until March 31, 1917 — the date of his death — the owner of a certain lot and building on Broad street in Augusta, Georgia; that extending through the roof of said building was a brick chimney about seven feet high, constructed of brick and mortar; that for many years this chimney had been allowed by White, his agents and representatives, to fall into a state of disrepair, the chimney being out of plumb and in a dangerous and dilapidated condition; that on January 30, 1918, bricks and mo,rtar from the top of the chimney, because of its dilapidated condition, toppled off onto the sloping roof of the building and were precipitated about thirty-five feet upon the head and shoulders of the plaintiff (who was walking upon the sidewalk by the building), striking him with such force as to cause serious and permanent injuries; that it was the duty of the deceased, his agents and representatives, to keep the building in proper repair, so as not to endanger the lives of pedestrians passing along the sidewalk adjacent thereto, but that despite such duty the deceased, his agents and representatives, carelessly and negligently allowed the building to fall into decay and disrepair, to the hurt and damage of petitioner, notwithstanding the deceased, his agents and representatives, knew or by the exercise of ordinary care and diligence could have known of the dangerous and dilapidated condition of the building and the chimney thereon. The petition prayed for damages in the sum of $20,000 against B. II. Callaway in his representative capacity as executor of the estate of J. B. White, deceased.</p> <p>The defendant interposed general and special demurrers to the petition as finally amended, which the court overruled, and the case proceeded to trial and resulted in a verdict for the plaintiff in the sum of $10,000. The ease came to this court upon exceptions to the overruling of the demurrers and to the denial of a motion for a new trial.</p>

<p>Action for damages; from Wilkes superior court — Judge Shurley. December 27, 1921.</p>

<p>Complaint; from city court of Savannah — Judge Freeman. January 5, 1922.</p>

<p>Action for damages; from city court of Macon — Judge Gunn December 3, 1921.</p>

<p>Indictment for assault with intent to murder; from Warren superior court — Judge Shurley. January 10, 1922.'</p>

<p>Indictment for assault with intent to murder; from Fulton superior court — Judge Hoop presiding. December 17, 1921.'</p>

<p>Indictment for larceny;-from Fulton superior court — Judge Blair presiding. December 17, 1921.</p>

<p>Indictment for misdemeanor; from Terrell superior court — Judge Worrill. December 10, 1921.</p>

<p>Conviction, of shooting at another; from Habersham superior court — Judge J. B. Jones. December 2, 1921.</p>

<p>Accusation of misdemeanor; from city court of Dublin — Judge Sturgis. December 30, 1921.</p>

<p>The finding of two quarts of whisky concealed in a piano in the defendant’s room in a house in which other persons occupied rooms was not sufficient, in connection with the other facts of the case, to authorize a conviction of having possession of intoxicating liquor.</p>

<p>Indictment for assault with intent to murder; from Whitfield superior court — Judge Tarver. January 7, 1922.</p>

<p>Conviction of manslaughter; from Candler superior court — Judge Hardeman. December 22, 1921.</p>

<p>Indictment for larceny; from Sumter superior court — Judge Littlejohn. January 11, 1922.</p>

<p>Accusation of carrying pistol; from city court of Jefferson — Judge Bryson. January 13, 1922.</p>

<p>Accusation of pointing pistol; from city court of Jefferson — Judge Bryson. January 13, 1922.</p>

<p>Indictment for fraudulent sale; from Ilart superior court — Judge W. L. Hodges. January 21, 1922.</p>

<p>Indictment for opprobrious words; from Warren superior court — Judge Shurley. January 12, 1922.</p>

<p>A plea of guilty and the imposition of a sentence, under an indictment for having alcoholic liquors in possession, is no bar to a trial on a separate indictment charging the same person with selling such liquors.</p>

<p>Conviction of assault with intent to murder; from Thomas superior court — Judge Thomas. January 2, 1922.</p> <p>Paragraph 3 of the decision relates to the following ground of the motion for a new trial: “ Because the court, over objection of the defendant, allowed in evidence the first bond forfeiture in due and legal form, showing that the defendant had forfeited his bond; to which ruling the defendant then and there excepted, and now excepts and assigns the same as error, the admission of said documentary evidence being contrary to law over objection that the same was irrelevant and immaterial to any issue in the -case, and has no tendency to illustrate any issue.”</p>

<p>There was no fatal variance between the indictment and the proof as to the marking of the bale of cotton alleged to have been stolen, where the indictment alleged that the bale was marked E. G-. C. Co. to D. C. Co., and the proof showed that it was marked E. G-. Co. to D. C. Co. The charge of the court on this point was not violative of the statute forbidding the expression or intimation of an opinion by the court to the jury as to what had or had not been proved.</p> <p>There was ample evidence to support the verdict, and the motion for a new trial was properly overruled.</p>

<p>Accusation of possessing liquor; from city court of Wrightsville — Judge Sturgis presiding. December 20, 1921.</p>

<p>Indictment for drawing check, without funds to pay it; from Wheeler superior court — Judge Graham. December 8, 1921.</p>

<p>Accusation of possessing liquor; from city court of Wrightsville • — ■ Judge Sturgis presiding. December 20, 1921.</p>

<p>The ground of the motion for a new trial as to evidence obtained by illegal search falls within the ruling in Calhoun v. State, 144 Ga. 679 (87 S. E. 893).</p> <p>The ground relating to testimony as to the complaint which caused the witness to go to the defendant’s house in search for whisky is without merit.</p>

<p>Accusation of possession of liquor; from city court of Macon — Judge Gunn. January 17, 1922.</p>

<p>Certiorari; from Oconee superior court — Judge Fortson. January 23, 1922.</p>

<p>Indictment for adultery, etc.; from Seminole superior court.— Judge Worrill. January 21, 1922.</p>

<p>It was not necessary for the trial judge to read or quote literally in his charge to' the jury the statute defining the offense for which the defendant was being tried, the indictment being practically in the language of the statute and full and specific as to the acts charged in it and the essential elements of the crime, and the jury being instructed to the effect that the allegations of the indictment must be made out before they would be authorized to find a verdict of guilty.</p> <p>The court’s statement of the State’s contentions did not invade the province of the jury.</p> <p>The charge as to alibi was not subject to the exception taken.</p>

<p>Indictment for assault with intent to murder; from Bibb superior court — Judge Malcolm D. Jones. January 30, 1922.</p>

<p>Indictment for larceny; from Screven superior court — Judge Strange. January 14, 1922.</p>

<p>Action for damages; from city court of Macon — Judge Guerry. April 9, 1920.</p>

<p>Indictment for kidnapping; from Houston superior court — Judge Malcolm D. Jones. November 26, Í921.</p>

<p>Trover; from city court of Bainbridge — Judge Spooner. January 11, 1921.</p>

<p>Complaint; from Sumter superior court — Judge Littlejohn. October 15, 1921.</p>

<p>Accusation of misdemeanor; from city court of Cairo — J udge Bigsby. December 10, 1921.</p>

<p>Complaint; from Whitfield superior court — Judge Tarver. October 7, 1921.</p>

<p>Complaint; from city court of Carrollton — Judge Hood. October 29, 1921.</p>

<p>Indictment for possessing liquor; from Wilkes superior court — Judge Shurley. January 21, 1922.</p>

<p>Accusation of' violation of liquor law; from city court of Macon — Judge Gunn. January 17, 1922.</p>

<p>Action for damages; from Seminole superior court — Judge Worrill. September 3, 1921.</p>

<p>Indictment for assault with intent to murder; from Screven superior court — Judge Strange. January 14, 1922.</p>

<p>An assignment of error that the judgment was “ contrary to law ” was too general, in not stating wherein it was contrary to law, where made in a bill of exceptions complaining of a judgment against an affidavit of illegality in a case involving questions both of law and of fact, tried by the judge without a jury.</p>

<p>Complaint; from Fannin superior court — Judge Blair. July 12, 1921.</p>

<p>Garnishment; from city court of TiftoH — Judge Price. September 12, 1921.</p>

<p>Certiorari; from Putnam superior court — Judge Park. December 17, 1921.</p>

<p>Conviction of having apparatus for making liquor; from Cobb superior court — Judge Blair. December 28, 1921.</p>

<p>Conviction of misdemeanor; from city court of Blackshear — Judge Mitchell. December 27, 1921.</p>

<p>Accusation of misdemeanor; from city court of Dublin — Judge Sturgis. December 24, 1921.</p> <p>The accusation was in two counts, the first charging larceny of a wooden buggy wheel painted red, the property of the Lovett Mercantile Company, and the second charging that the defendant ■unlawfully bought and received such a buggy wheel from some person unknown to the prosecutor, the defendant knowing that it was stolen. The defendant demurred, on the grounds: that no crime was set out; that the accusation was not signed, and therefore was void; that it was not stated therein whether the Lovett. Mercantile Company was an individual, a corporation, or a partnership, and that the separate and distinct offenses of simple larceny and of receiving stolen goods were charged; and the defendant asked that the State elect as to the charge upon which he should be tried first. The accusation in the record appears to have been signed by the prosecutor and the solicitor of the city court, and the order overruling the demurrer states that “the court allowed the prosecutor to sign the accusation.” The jury found the defendant guilty on the first count, and by direction of the court found him not guilty on the second count.</p> <p>An instruction by the court to the jury, that “ any statement or confession made by the defendant must be received with great caution and scanned with care,” was complained of in the motion for a new trial, on the ground that in it “ the court expressly stated that a confession had been made, and took away from the jury the question as to whether or not a confession had really taken place or been made by the defendant.”</p> <p>Another ground of the motion for a new trial states that “ over the objection of the defendant’s counsel,” and “without laying the proper grounds for a confession,” the court admitted the following evidence of B. P. Lake: “I asked him where he got it, and he said he stole it.” “ Upon the objection being made, the court asked the witness, 'Did you offer the defendant anything to make this statement ?’ Witness answered, 'No.’ 'Did you threaten him in any way ? ’ Witness said, ' No.’ ” It is contended that it was error to admit this testimony as to a confession, without laying the proper grounds for it, and that “the court should not have volunteered his services in an attempt to do so;” that it was prejudicial to the rights of the defendant for the court to ask the witness any question relative to and material to the alleged crime.”</p> <p>Failure to charge the jury on circumstantial evidence is another ground of the motion for a new trial.</p>

<p>Indictment for rape; from Emanuel superior court — Judge Hardeman. January 17, 1922.</p>

<p>Indictment for robbery; from DeKalb superior court — Judge Hutcheson. January 7, 1922.</p>

<p>Indictment for aiding escape; from Warren superior court — Judge Shurley. January 12, 1922.</p> <p>Application for certiorari was denied by the Supreme Court.</p> <p>The indictment charges Felix Dalton “ with the offense of aiding escape, for that the said Felix Dalton, in the county and State aforesaid, on the 2d day of October, in the year ” 1921,, “ with force and arms, did unlawfully aid and assist one Will Broomfield, a prisoner, to escape from the custody of one George P. Hogan, sheriff of said county, and one Felix Dalton, a guard employed by said George Plogan, sheriff aforesaid, the said George P. Hogan, sheriff as aforesaid, and the said Felix Dalton, guard as aforesaid, being then and there in lawful charge of said Will Broomfield, on the charge of murder, under and by virtue of a warrant issued by Hon. F. L. Howell, N. P. & Ex. J. P. of 425th dist. G. M., and upon a commitment for the offense of murder, by said F. L. Howell, N. P. & Ex. J. P. of said county, after a hearing on a preliminary investigation of said charge of murder against said Will Broom-field, contrary to the laws of said State,” etc.</p> <p>The demurrer was on the following grounds: (1) Because the indictment “ does not contain sufficient details of the charge therein alleged to enable this defendant to prepare his defense thereto, in that said indictment fails to allege how, in what manner, and by what means this defendant aided and assisted Will Broomfield to escape.” (2) “Because the said . . sheriff . . did not have any legal authority to employ Felix Dalton as a guard as alleged said indictment could not have the ‘lawful charge of Will Broomfield/” (3) Because one can not be guilty of aiding and assisting one to escape from the lawful charge of himself, as alleged in the indictment; because in such a case he would be subject to the charge of violating section 322 of the Penal Code (1910), as to the crime of permitting an offender to escape.</p> <p>G. P. Hogan, sheriff, was allowed to testify that he had Will Broomfield in his custody on or about October 2, 1921. This testimony was admitted over the objection that “it was a question of fact, to be determined by the jury, as to whether or not G. P. Hogan had Will Broomfield in his legal custody ” at the time stated. Hogan’s testimony that there was “ no way in the world for him to get loose without help” was admitted over the objection that this was a question of fact for the jury, about which the witness could not express an opinion. Grounds 2 and 3 of the amendment to the motion for a new trial relate to the admission of the foregoing testimony.</p>

<p>Trover; from city court of Monroe — Judge Stone. August 16, 1921.</p>

<p>Action for damages — appeal; from Seminole superior court — Judge Worrill. September 3, 1931.</p>

<p>There being some conflict in evidence on the material and controlling issue as to the payment of the note sued on, a question for determination by a jury was presented, and the direction of a verdict was error.</p>

<p>Complaint; from Gordon superior court- — Judge Tarver. August 25, 1921.</p>

<p>Motion for new trial; from Murray superior court- — Judge Tarver. September 24, 1921.</p>

<p>In order to give this court jurisdiction of the case, the bill of exceptions must contain a general or a specific exception assigning error on the final judgment in the court below. Where the rendition of such a judgment is recited without such an assignment of error thereon, and the only assignment of error in the bill of exceptions is upon an interlocutory judgment, this court is without jurisdiction of the writ of error, and a motion to dismiss the writ must be sustained.</p>

<p>Complaint; from city court of Eloyd County ■ — • Judge Nunnally. December 8, 1921.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Complaint; from city court of Albany — Judge Claj'ton Jones. December 12, 1919.</p> <p>Certiorari was granted by the Supreme Court.</p>

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

<p>Complaint; from city court of Cartersville — Judge Aubrey. October 5, 1921.</p>

<p>Action for damages; from city court of Americus — Judge Harper. August 1, 1921.</p>

<p>Complaint; from city court of Cartersville — Judge Aubrey. October 5, 1921.</p>

<p>Writ of error; from city court of Tifton. Motion to dismiss.</p>

<p>Certiorari; from Murray superior court — Judge Tarver. October 6, 1921.</p>

<p>Trover; from Jasper superior court — Judge Park. November 28, 1921.</p>

<p>Validation of schoolhouse bonds; from Decatur superior court — Judge R. C. Bell. December 12, 1921.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

Certiorari; from Pulton superior court — Judge Pendleton. October 11, 1921. Capital City Grocery Company brought bail-trover in the municipal court of Atlanta against R. M. Everett, to recover six barrels of sugar. Everett gave bond, and, upon the trial of the case, the plaintiff elected to take a money verdict, and on January 14, 1921, a verdict and judgment were rendered against Everett and his surety for the sum of $402.23.

<p>Affidavit of illegality; from Gordon superior court,— Judge Tarver. November 5, 1921.</p>

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

<p>Indictment for larceny after trust; from Warren superior court — Judge Shurley. January 12, 1922.</p> <p>The indictment charged Boy Barksdale with “the offense of larceny after trust, Boy Barksdale . . on the 15th day of June, . . 1920, having been intrusted by one E. H. Humphrey with a certain double-barrel hammerless, breech-loading shotgun, 12 gauge, of the value of thirty dollars and the property of the one E. H. Humphrey, for the purpose of him, the said Boy Barksdale, keeping the same and returning to said E. H. Humphrey after being used by said Boy Barksdale, and returned when demanded by said E. H. Humphrey, and after being so intrusted by said E. H. Humphrey with said gun for the purpose as aforesaid, did then and thereafter, to wit, on the 20th day of July, 1920, fraudulently, wrongful^, and unlawfully convert the said' double-barrel, hammerless, breech-loading shotgun, 12 gauge, of the value of thirty dollars, the personal goods of said E. H. Humphrey, to his, the said Boy Barksdale’s, own use, contrary to the laws,” etc.</p> <p>’ The indictment was on the grounds: (1) It does not allege such a trust of the shotgun as to make it the subject of larceny after trust. (2) The defendant being indicted under section 182 [192?] of the Penal Code, the indictment should allege that the gun was intrusted by the prosecutor to the defendant for the purpose of applying the same for the use or benefit of the owner, and this is not alleged; nor is any demand alleged for the gun. (3) The allegations show only a loan of the gun by the owner, and a loan is not such a trust as will support a charge of larceny after trust.</p>

<p>Accusation of possessing intoxicating liquor; from city court . of Wrightsville — Judge Sturgis presiding. December 20, 1921.</p>

Complaint; from city court of Blakely — W. G. Post, Judge pro hac vice. January 16, 1922. This suit was brought by the Jeffrey Manufacturing Company against H. G. Smith and W. B. Hattaway, to recover a balance alleged to be due on the purchase-price of a certain machine sold and delivered to the defendants under a written contract.

<p>Where the case was heard by the judge without a jury upon an issue raised by a plea of res judicata, in support of which evidence was introduced, but where the bill of exceptions, in which error is assigned on the sustaining of the plea, does not contain the evidence or any of it that was so introduced, and does not specify any evidence as contained in a brief of evidence made a part of the record, it is impossible for this court, on review, to pass upon the sole question presented; and an affirmance of the judgment necessarily results. This is so notwithstanding the certificate to the bill of exceptions uses the words, “ contains all the evidence . . material,” etc.</p>

<p>Accusation of possessing liquor; from city court of Floyd county — Judge Nunnally. February 2, 1922.</p> <p>From the evidence it appeared that in a three-room house rented and occupied by the defendant, who was a woman working at another place, officers in her absence found Seab Lynn in bed in the front bedroom, and found in the room an empty pint bottle which had recently contained liquor, and, in a slop-bucket in the-same room, about a half pint of liquor which had been poured’ into it, and found hid between a plank and the weatherboarding of the room two pints of liquor and several bottles which had recently contained liquor; and down stairs in the basement they found a large number of empty bottles of the same kind and a gallon jug with a little corn liquor in the bottom. It was testified that Seab Lynn, on seeing the officers approaching the house, slammed the door shut and fastened it, and that all the doors to the house were securely fastened; that the officers broke one of the doors open and went in the house, and saw him in bed with his clothes on and the cover pulled up over him. An officer testified that the defendant told him that another girl sta3red there some, and that her brother, a grown man, lived in the house with her. A woman testified that she had slept a few nights in this house, in the same bed with the defendant, and had never seen any liquor there; that Seab Lynn had been staying in a room at the house for several weeks, and the defendant’s brother stayed'in the house; that the defendant had been staying at Mrs. Burney’s at night, as Mrs. Burney was out of town, and she had charge of Mrs. Burney’s house. The defendant, in her statement at the trial, said that she knew nothing of any liquor being at her house; that she rented the house about a month before the officers went to it, and she had not been to it in two weeks before they went there, and that her brother slept in'the back room.</p>

<p>Petition for certiorari; from Chatham superior court — Judge Meldrim. January 19, 1923.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>As to the truth of the alleged newly discovered testimony of one who was contradicted by the affidavit of another, the decision of the trial judge, overruling the motion for a new trial, was final and can not be controlled by this coiirt.</p>

Affidavit of illegality of execution; from Bleckley superior court — E. D. Graham, judge pro hac vice. January 11, 1922. William A. Wright, comptroller-general, issued an execution against the Southern Bailway Company for a part of the tax levy of Bleckley county for the year 1918.

<p>There was evidence to support the verdict and there was no merit in any ground of the motion for a new trial.</p>

<p>Accusation of sale of liquor; from city court of Blackshear — Judge Mitchell. January 19, 1922.</p>

<p>Indictment for larceny; from Wilkes superior court — Judge Shurley. January 30, 1922.</p>

<p>Indictment for carrying pistol unlawfully; from Randolph superior court — Judge Worrill. January 21, 1922.</p>

<p>Indictment for larceny of hog; from Emanuel superior court — Judge Hardeman. January 23, 1921.</p> <p>From the evidence it appeared -that the hog alleged to have, been stolen — described as an unmarked red castrated male hog weighing about 125 pounds — disappeared from a fenced lot of the owner, H. L. Johnson, about September 16, 1921. He testified that he “ never did find this hog.” John Smith testified: that on Friday, September 16, when he was stripping cane for Mr. Johnson about 400 yards from the field in which Mr. Johnson kept his hogs, he (the witness) heard a'gun fire, and, about a half hour later, saw Eobert Williams, the defendant, going towards his own house with something in a sack — a big bundle — under his arm; and that on the following Sunday morning the defendant invited him to breakfast and had fried pork in a little dish on the table, and told him to eat it and shut his mouth. The witness added: “Then he asked me, . . ‘How come you don’t get you no pork ? ’ And I says/ ‘ I am scared;’ and so I kept on listening to him, and after a while I went on and got me one, and I got caught. He called it a grunt; he asked me why I didn’t get me a grunt. . . He did not say where he got this grunt that I was eating that morning; he didn’t say anything about that red hog of Mr. Johnson’s; . . he said he killed him one. . . I think he owned a sow and three shoats. . . Eobert also told me who was with him in getting these grunts,— his brother in law, Haywood Jordan. He did not say whether Haywood Jordan had anything to do with getting this particular grunt. . . He didn’t say he stole him a grunt. I have seen that sow and three shoats of Eobert since that shot was fired.” H. L. Johnson, recalled, testified: “ Since this hog was missed I have made a search around my neighborhood there for this hog, and the best evidence I could find was about 150 yards from where this shooting should have occurred, for him to have got the hog out of my field. About 150 yards from the swamp I found the skull of a hog, the head and his jawbones, and a piece of the skin, about the- size of your hand, with red hair and all. . . There was no other part or parcel of the hog’s carcass there. . . I couldn’t say positively how old a head and skull that was. . . I couldn’t tell whether that was .my hog or not.” The witness stated that he knew “ this man’s sow and pigs,” and they were still there, and the man had not owned any others since he had been on the place of the witness. The defendant, in his statement at the trial, said that he knew nothing about this hog, and had no meat at breakfast “that Sunday morning,” except some bacon that he had bought, and that the witness who swore against him did so because of ill feeling, and had made threats against him before that time.</p>

<p>Conviction of voluntary manslaughter; from Heard superior court- — -Judge Hoop. January 25, 1922.</p>

<p>Indictment for manufacture of liquor; from Bibb superior court — Judge Humphries presiding. February 11, 1922.</p>

<p>Conviction of involuntary manslaughter; from Mitchell superior court — Judge Bell. January 14, 1922.</p>

<p>Indictment for possessing liquor; from Lincoln superior court — Judge Shurley. January 13, 1922.</p>

<p>Indictment for possessing liquor; from Lincoln superior court — Judge Shurley. January 13, 1922.</p>

<p>Conviction of manslaughter; from Fulton superior court — Judge Humphries. January 14, 1922.</p>

<p>The plea in abatement, on the ground that one whose name appeared on the indictment as a grand juror was not on the grand-jury list of the county, and therefore w.as not competent to serve as such, should have been sustained, under the facts of the case.</p>

<p>Indictment for manufacture of liquor; from Lincoln superior court — Judge Shurley. January 23, 1922.</p>

<p>Indictment for murder — conviction of shooting at’ another; from Toombs superior court- — -Judge Hardeman. January 17, 1933.</p>

<p>Accusation of larceny from house; from city court of Blackshear — Judge Mitchell. January 38, 1933.</p>

<p>Accusation of drunkenness on highway; from city court of Blaekshear — Judge Mitchell. January 28, 1922.</p>

<p>Although it was shown that an automobile without a license-tag on the rear was driven by the accused, yet it appearing that he had complied with the law as to procuring such a tag, and that it was displayed on the rear of the automobile when he began the trip on which he was seen driving the car without it, and' there being no evidence to contradict his statement that it was lost without knowledge on his part during the trip and that he did not discover the loss until the officer who arrested him inquired about the tag, the conviction of the accused was not authorized, and the court erred in overruling his, motion for a new trial.</p>

<p>Indictment for manufacture of liquor: from Wilkes superior court — Judge Shurley. January 21, 1922.</p>

<p>Indictment for carrying pistol; from Wilkes superior court — Judge Shurley. January 24, 1922.</p>

<p>Accusation of possessing liquor; from city court of Floyd county — Judge Nunnally. February 7, 1922.</p>

<p>Indictment for burglary; from Houston superior court — Judge Malcolm D. Jones. January 21, 1922.</p>

<p>Indictment for burglary; from Evans superior court — Judge Sheppard. .January 14, 1922.</p>

<p>Indictment for possession of liquor; from Wilkes superior court — Judge Shurley. January 24, 1922.</p>

<p>‘‘ There being no proof of a plenary confession by the accused, but. at most, evidence only of incriminatory admissions, it was such an error to charge the law relating to confessions as to require the grant of a new trial. These incriminatory admissions are not conclusive; and proof of inculpatory admissions will not authorize a charge upon the subject of confession.”</p>

<p>Accusation of destroying tombstone; from city court of Hall county — Judge Sloan. February 4, 1922.</p>

<p>Conviction of manslaughter; from Early superior court — Judge Worrill. February 4, 1922.</p>

<p>Conviction of manslaughter; from Bleckley superior court — Judge Graham. February 11, 1922.</p>

<p>Indictment for larceny of automobile: from Hancock superior court — Judge Park. February 21,' 1922..</p>

<p>Indictment for manufacture of-liquor; from Telfair superior court — Judge Graham. March 3, 1922.</p>

<p>Indictment for assault with intent to murder; from Elbert superior court — Judge W. L. Hodges. January 21, 1922.</p>

<p>Complaint; from city court of Waynesboro —Judge W. H. Davis. December 14, 1921.</p>

<p>Complaint; from Warren superior court — Judge Shurley. January 28, 1922.</p>

<p>Indictment for larceny of hog; from Miller superior court — Judge Worrill. January 21, 1922.</p>

Indictment for larceny from house; from Warren superior court' — Judge Shurley. February 7, 1922. Alfred Evans was charged with larceny of certain shoes, trousers, and hose from the storehouse of Goldman. Goldman testified: “ On or about the 25th of October, 1920, Alfred Evans, the defendant, came into my store at Norwood, Ga., and wanted to buy some goods, — shoes, pants and other things. I showed him what he asked for, and he said he would take them up.

<p>Indictment for larceny; from Laurens superior court — Judge Kent. February 25, 1922.</p>

Motion to change venue in murder case; from Wilcox superior court — Judge Gower. April 5, 1922. Application for certiorari was denied by the Supreme Court.

<p>Indictment for larceny from house; from Charlton superior court — Judge Summerall. December 31, 1921.</p>

<p>Action for damages; from city court of Carrollton — Judge Hood. August 18, 1921.</p>

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

<p>Indictment for seduction; from Murray superior court — Judge Tarver. September 3, 1921.</p>

<p>Action on contract; from city court of Valdosta — -Judge Crawley presiding. June 14, 1921.</p>

<p>Under previous adjudications -in this case on former writs of error, the exceptions now under review are not meritorious, and present no cause for a new trial. The evidence authorized the verdict.</p>

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

<p>Petition for certiorari; from Johnson superior court — Judge Kent. September 2, 1921.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. October 6, 1921.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Even if the court erred in admitting in evidence, without further pre- ' liminary proof, tie contract executed under seal in the name of the church, this was immaterial, in view of evidence subsequently admitted as to authorization and ratification of the contract.</p>

<p>Certiorari; from Grady superior court — Judge Thomas. November 22, 1921.</p>

<p>The appraisers appointed by the ordinary to set apart a year’s support for a widow should fully and accurately describe any land included in their return, and make a plat of it as a necessary part of the return, and the court hearing objections to the return because of a failure to comply with this statutory requirement can require them to amend their return in this respect. The application of the widow to have the year’s support set apart should not be dismissed because of this defect in the return of the appraisers.</p>

<p>Under the allegations of the petition it was not incumbent on the trial judge, in his charge to the jury, to deal separately with the two counts in the petition, as though two distinct and independent cases were on trial, nor to instruct them to inform the court on which count they based the verdict, in the event they returned 'a verdict in favor of the plaintiff. The allegations of liability being identical under both counts, and the defense set up to both counts being the same, it was proper to instruct the jury, as was done, to find only one verdict, according to. their view of the evidence.</p>

<p>The assignments of error based upon certain extracts from the instructions of the court to the jury, when the charge is considered as a whole, are entirely without merit. The only issue in the ■ case was one of title to the property, or to the money arising from the sale of the property, in the hands of the garnishee. The garnishee, having answered, had no further interest in the issue, but the question was one of title between the plaintiff in fi. fa. and the claimant. On this issue the evidence was in favor of the claimant’s ' title, and the verdict in his favor was amply supported, if not demanded.</p>

<p>Action on insurance policy; from city court of Fort Gaines — Judge Turnipseed. September 6, 1921.</p>

<p>Accusation of misdemeanor; from city court of Carrollton-— Judge Hood. January 25, 1922.</p> <p>It was testified, that John Henry Smith, the defendant, went at night to Clara Terrell’s house, and “ she asked him if he had come down to £ skin.’ He said he didn’t come down for that, but said, ‘ I will play.’ There is such a game as £ skin.’ . . They commenced playing with cards. They took one apiece, never did anything else. . . Money was on the board. . . They didn’t play any at all before the officers got there. They had just dealt of the cards when the officers came. . . John Henry had money up on the board.” The city marshal testified, that, at the time as to which the previous witness had testified, J ohn ITenry Smith was sitting in the house with Clara Terrell, and had cards and money on the table; he did not see anybody deal the cards; they had the cards in their hands, and the remainder of the deck was on the table. This witness testified further: “Money was not on the table. I taken a dollar bill off Henry, out of his hands with his cards. I don’t know anything about the game the negroes call £ skin.’ . . I don’t' know whether they were playing what they call £ skin.’ They said they were playing skin. . . I think they were gambling, don’t know whether this negro (defendant) was gambling, don’t know that any of them were gambling.” Another witness testified that he was with the marshal and saw J ohn Henry Smith and Clara Terrell sitting with cards in their hands and cards on a board across her lap, that there was money on one end of the board, and that John Henry had a dollar bill in his hand. The defendant, in his statement at the trial, said that he was not gambling, but was starting to play a game of five up or set back, and that the money was not his, but “-belonged to the other fellow.”</p>

<p>Trover; from city court of Soperton — • Judge Wallace. January 28, 1922.</p>

<p>Action for damages; from city court of Bainbridge — Judge Spooner. January 30, 1922.</p>

<p>Conviction of stabbing; from city court of Americus — Judge Harper. February 1, 1922.</p>

<p>Indictment for possessing intoxicating liquor; from Wilkes superior court — Judge Shurley. January 24, 1922.</p> <p>McCarty was convicted of having possession of intoxicating liquor. It was testified by Sturdivant that at the house of Aaron Mills, who was having a barbecue, between twelve and one o’clock at night, McCarty was present with a number of other persons, and when the witness entered the house a man standing in front of McCarty was drinking out of a cup, and, on seeing the witness, he set the cup down, grabbed from McCarty’s hand a fruit jar about half full of “ some liquid that looked like liquor,” and ran off with it; and that on a table there were several cups that smelled as if whisky had been in them; that there was no whisky in them, and the witness could not swear that the jar contained whisky; that the liquid in it could have been water; that the room was lighted only by a small lamp and he could not see well; and that McCarty denied having had any whisky there at all. Another witness testified that he went into the room- a little later and that the cups had the -smell of whisky about them, but no whisky was found. The defendant, in his statement at the trial, denied that he had a fruit jar as stated by the witness. He said that another man in the room tried to sell whisky to him, but he did not buy any.</p>

<p>Complaint; from city court of Sandersville — Judge Goodwin. January 24, 1922.</p>

<p>Conyictiou of receiving stolen goods; from Fulton superior court — Judge Hardeman presiding. February 20, 1922.</p>

<p>■ Indictment for mayhem; from Fulton superior court — Judge Hardeman presiding. March 1, 1922.</p>

<p>Accusation of misdemeanor; from'city court of Monroe — Judge Eelker. March 14, 1922.</p> <p>The grounds of the motion for a new trial in addition to the general grounds were:</p> <p>“ That the court erred in charging the jury as follows: ‘ The defendant is indicted under the prohibition law passed in 1917 [Act Ex. Sess. 1917, p. 18]. Section 22 of that act reads as follows: “ Section 22. . . It shall be unlawful for any corporation, firm, or individual in this State, to knowingly permit or allow any one to have or possess or locate on his premises any apparatus for the distilling or manufacturing of the liquors and beverages specified in this act. When any such apparatus is found or discovered upon said premises the same shall be prima facie evidence that the person in actual possession had knowledge of the existence of the same, and on conviction therefor shall be punished as prescribed in section 16 of this act, the burden of proof in all cases being upon the person in actual possession to show the want of,knowledge of the existence óf such apparatus on his premises.” ’ Movant contends that the charge was error without charging the jury as to what ‘ actual possession ’ was, under the law, and as to actual possession and constructive possession.”</p> <p>“ That the court erred in failing to charge the jury the law of circumstantial evidence, as the evidence in this case is entirely circumstantial in its character, and the law of this case necessarily demanded such charge without a written request.”' In a note to these grounds the trial judge said: “ The question of actual possession was not made an issue or discussed by counsel in the argument, the main issue being, under the evidence, whether or not the defendant had knowledge of the still on his farm where he lived. The court, however, stated the contentions of the counsel for the State and the defendant, and hypothetically applied the same to the section of the act read to the jury. As the defendant admitted actual possession, or that he lived on the place, and as the witness testified that the still was found on the defendant’s farm where he lived, in his pasture, and as no point was made as to actual or constructive possession, the court did not explain the difference, but dealt alone with actual possession, in charging the section of the act. There was neither oral nor written request to charge on constructive or actual possession, . . or to charge on circumstantial evidence.”</p>

<p>Action for damages; from Dade superior court — Judge Tarver. February 20, 1922.</p>

<p>Complaint; from city court of Hall county — ’Judge Sloan. February 2, 1922.</p> <p>Paragraph 2 of the decision relates toythe following part of the charge: “ I charge you that among the issues the vital issue in this case is the question of whether or not there was or was not a continuation allowed under a further (or future) statement by the defendant in this case so as to authorize the extension of such credit to Whelchel. If you believe from the evidence that any authority was given of this kind, then it would be your duty to find in favor of the plaintiff the amount that the evidence shpws proven to have been furnished. Whatever that amount may be, you calculate that.” It is contended in the motion for a new trial that in thus calling attention to what the court considered the vital issue in the case the court expressed an opinion on the evidence. It is also contended that the issue stated was not the vital issue, that this part of the charge excluded the main defense, and that it amounted to the direction of a verdict in favor of the plaintiff.</p>

<p>Action for damages; from Laurens superior court —■ Judge Kent. January 26, 1922.</p>

<p>1. Where in a suit for damages injury to the plaintiff’s left arm was alleged, and it appeared from his testimony that his right arm was injured, and thereupon his counsel were allowed to amend by alleging injury to the right instead of the left arm, it was not error requiring a reversal that the court overruled' a motion to continue the case because of surprise by the amendment.</p> <p>2. Testimony that the motorman of the street-car, just after the collision in question, inquired of the witness if there was a man under the automobile, was admissible as part of the res gestas.</p> <p>3. Where in charging the jury the court stated the allegations as set forth in the petition, and informed the jury that this was what the plaintiff contended, and that it was not evidence, and then stated the defendant’s contention, the instructions were not subject to the objection that they were erroneous and inapplicable to the issues made, and that they submitted issues as to which there was no evidence and which were not involved in the case.</p> <p>4. When the charge to the jury is read as a whole, the other exceptions thereto are not meritorious.</p> <p>5. Where the oourt in the charge as given substantially presented the principle of a requested instruction, it is not ground for reversal that the instruction was not given as requested.</p> <p>6. The charge to the jury was full and fair; and the verdict having been approved by the trial judge, it was not error to overrule the motion for a new trial.</p>

<p>From the. allegations of the plaintiff’s petition as to the injury alleged to have been received by him on slipping and falling from locomotive steps which, in the performance of his duty as a fireman, he was descending at the direction of the engineer, and which lie alleged were wet because of the defective condition of a valve that allowed water to overflow from the tank and run down on them, and were not lighted, and by reason of the darkness could not be seen by him, it does not appear that the injury was the result of a negligent order of a superior, or that there was a breach of duty to him on the part of the railway company; and it appears that he knew or ought to have known that the steps were wet from the cause alleged. Ho cause of action was stated, and the court did not err in sustaining a general demurrer to the petition.</p>

<p>Complaint; from city court of Ellaville — Judge Hart. February 6, 1922.</p>

<p>Petition for certiorari; from Seminole superior court- — Judge Worrill. March 4, 1922.</p> <p>The petition for certiorari was by David M. Abrams. It stated that at the February term, 1922, of a designated justice’s court there came on to be tried before Otho Benton, N. P. and ex officio J. P., the case of Planters Bank v. David M. Abrams, “ the same being an action on an affidavit of illegality to ii. fa. issued on a chattel mortgage foreclosure by the Planters Bank against David M. Abrams,” and “ 1st. That'on or about the 28th day of January, 1922, said David M. Abrams was in conference with P. H. House, attorney for the Planters Bank, and told said Plouse that he was called to New York and other northern cities on important business, and the said House agreed to continue cases in which he represented one party and Abrams the other. The specific cases were mentioned, excepting this case, which was not specifically .mentioned, but petitioner was under the impression that this ease would also be postponed. 2d. That on or about the 28th of January, 1922, said David M. Abrams was in conference with said Otho Benton, N P. and ex officio J. P., and told said Benton that he was called to New York and other northern cities on important business, and that he would not return before court day, and the said Benton stated that it was ‘all right/ leaving said Abrams under the impression that a leave of absence was granted, although same was not specifically asked for, but cases in which said Abrams was concerned in said Benton’s court were mentioned. 3d. That on February 10th, 1922, at the regular court day of the said Benton, said Benton dismissed your petitioner’s affidavit of illegality. . . 4th. That the court erred in dismissing said illegality, as said Abrams was granted a leave of absence by the court, or at least led to believe that said case would be continued.” Copies of the proceedings in the case stated in the petition were attached as exhibits.</p>

<p>Indictment for larceny from house; from Brantley superior court — Judge Summerall. March 6, 1922.</p>

<p>Complaint; from Webster superior court —Judge Littlejohn. March 11, 1922.</p>

<p>Accusation of larceny; from city court of Washington — ■ Judge Sutton. March 6, 1922.</p>

<p>Indictment for robbery; from Bibb superior court — Judge Mathews. March 18, 1922.</p>

<p>Conviction of assault with intent to rape; from Laurens superior court — Judge Kent. February 25, 1922.</p>

<p>Indictment for malicious mischief; from Glascock superior court — Judge Sburley. March 11, 1922.</p>

<p>“ It is proper for the judge to direct a verdict only where the evidence ' is without conflict, and that introduced, with all reasonable deductions and inferences therefrom, demands a particular verdict. Civil Code, § 592G. The evidence being conflicting upon material issues in the case, it was error to direct the verdict.” Anderson v. McMillan, 147 Ga. 5 (92 S. E. 520).</p>

<p>Conviction of assault with intent to murder; from Bibb superior court — -Judge Mathews. February 25, 1922.</p>

<p>Complaint; from Pulton superior court — Judge Ellis. August 7, 1921.</p>

<p>Action for damages; from DeKalb superior court — Judge Hutcheson. September 9, 1921.</p> <p>Griffler brought suit against the Southern Eailway Company in DeKalb superior court. The petition alleged that the said railway company had “ an office and agent and a place of business in DeKalb county, Georgia.” Process was issued and a copy of the petition and process was served upon a certain person as “ the agent in charge of the office at Chamlee, Georgia, DeKalb county.” A traverse to this return of service was sustained. The plaintiff then procured an order which provided that “ a second original be issued and forwarded to the sheriff of Fulton county, Georgia, to be served on the Southern Eailway Company as provided by law, commanding said defendant to be and appear at the December term, 1919, of DeKalb superior court, then and there to answer the complaint of Philip Griffler.” (Italics ours.) Thereafter a second original was issued with process headed “ State of Georgia, County of DeKalb,” and directed to “the sheriff or his deputy of said county.” This process, although issued and served in October, 1919, required the defendant “to be and appear at the superior court to be held in and for said county on the.first Monday in June, 1919, then and there to answer the plaintiff’s complaint.” (Italics ours.) A deputy sheriff of Fulton county served the defendant with this “writ and process.” A written motion was made by the defendant “that the said suit be dismissed upon the ground that no service in the suit has been perfected upon the defendant.” This motion was overruled, and the defendant excepted.</p>

Foreclosure of ■ lien; from Berrien superior court — Judge Dickerson. September 20, 1921. The motion to dismiss the writ of error was upon the following grounds: “ 1. There is no sufficient assignment of error in the bill of exceptions; an assignment of error to the sustaining of demurrers must be specific, so that the court may, upon reading the assignment, at once grasp the error complained of. 2.

<p>Complaint; from city court of Hall county — Judge Sloan. February 2, 1922.</p>

<p>Action for damages; from Tattnall superior court — Judge Strange presiding. September 3, 1921.</p>

Petition for certiorari; from Pike superior court — Judge Searcy.

<p>Error in the charge of the court as to the amount claimed by the plaintiff as having been expended by him' for medical treatment, which in the plaintiff’s petition was less than the amount stated 'by the court, was cured by writing off from the verdict for the plaintiff the difference between these amounts.</p> <p>As to other alleged errors the case is controlled by the decision in the companion case of Savannah & Southern Railway v. Davis, ante, 654.</p>

<p>Complaint; from city court of Atlanta — J udge Beid. October 22, 1921.</p>

<p>There was some slight evidence to authorize the verdict; and, the verdict having been approved by the trial judge, this court is powerless to interfere with it because of alleged insufficiency of evidence.</p>

<p>Complaint; from city court of Savannah — Judge Freeman. December 2, 1921.</p>

<p>Description and names of counsel as in case next before.</p>

<p>Certiorari; from Eultou superior court — Judge Pendleton. October 6,-1921.</p> <p>The order of the judge of the superior court, dismissing the certiorari, states that on motion it is dismissed “ as a void certiorari,” on the ground that it “ was not issued in forma’ pauperis,” and that the plaintiff in certiorari did not comply with the law as to giving bond, “ the record showing that at the time said writ issued the plaintiff had not given the bond as by law required.” The order states also that “ it is further considered by the court that T. C. Miller, D. C., had no right or authority to attach to this certiorari the certificate dated October 5, 1921,” and “the same is not considered by this court.” The certificate here referred to is as follows: “I hereby certify that I marked the within petition for certiorari as being filed July 9th, 1921, and so dated the writ of certiorari, which was the date of the judge’s order sanctioning same, whereas said petition was presented for filing and said writ was issued July 11th, 19.21. .T. C. Miller, Deputy Clerk.” The certiorari bond was-dated July 11, 1921.</p>

<p>Attachment; from city court of Nashville — Judge W. E. Smith. December 30, 1921.</p>

<p>1-8. The special grounds of the motion for a new trial are not in proper form for consideration.</p> <p>9. There was evidence to support the verdict.</p>

<p>'■ The statute makes a brief of evidence indispensable to the validity of a motion for a new trial. Where a motion for a new trial is made at a term which does not continue for thirty days after the trial, it is neeessaiy, under the statute, that the brief of the evidence shall be filed during the term, or that an order shall have been passed during the term allowing a longer time in which the brief might be filed. When no brief of evidence was filed, and no order taken for an extension of time, no valid motion was pending; and it was not error to dismiss the same on motion.”</p>

<p>Action for damages; from Lamar superior court— Judge Searcy. February 25, 1922.</p>

<p>Indictment for larceny; -from Stephens superior court- — Judge J. B. Jones. February 25, 1922.</p>

<p>Indictment for manufacture of liquor; from Mitchell superior court — Judge E. C. Bell. January 14, 1922.</p>

Indictment for assault with intent to murder — conviction of shooting at another; from Murray superior court — Judge Tarver. March 23, 1922. The 5th division of the decision relates to the following ground: “ 8. Because the court erréd in failing to charge the jury, as movant insists, as follows: That the burden of proof was upon the State to satisfy their minds beyond a reasonable doubt of the guilt of the defendant as charged.

<p>The verdict was authorized by the evidence.</p>

<p>Indictment for possessing liquor; from Mitchell superior court • — Judge E. C. Bell. January 14, 1922.</p>

<p>Indictment for burglary; from Toombs superior court- — • Judge Hardeman. March 3, 1922.</p>

<p>Breaking railroad-car, etc.; from Toombs superior court — Judge Hardeman. March 4, 1922.</p>

<p>1. Where an indictment charges that the accused did “ unlawfully whip and beat ” his wife, a verdict supported by evidence is not contrary to law “for the reason that a man cannot be convicted of an assault and battery on his wife.”</p> <p>2. This court cannot consider the grounds of the petition for certiorari in which it is alleged that the court erred in the admission of certain evidence, because these grounds do not show that the objections stated in them were the same objections made and urged when the evidence was offered. Jenkins v. Jenkins, 150 Ga. 77 (102 S. E. 425). It is not sufficient to state simply that the court erred in the admission of evidence. “ Such language as to a contention when the motion for new trial was made does not show that the objection was made to the evidence when offered on 'the ground stated or on any other ground.” Whiddon v. Salter, 144 Ga. 77 (2) (86 S. E. 243). Moreover, the answer of the judge of the county court of Putnam shows that there is no merit in these grounds of the motion for a new trial.</p> <p>3. The act of 1911 (Ga. L. 1911, p. 149, Park’s Penal Code, § 1011 (a) ) expressly provides that no judge of the superior court shall sustain a writ of certiorari on the ground that the venue was not proved, unless there is in the petition for the writ a distinct allegation of failure to prove venue, and an assignment of error thereon. The petition in this case contains no such allegation .or assignment. Marshman v. State, 138 Ga. 864 (2) (76 S. E. 572); Palmer v. State, 19 Ga. App. 752 (92 S. E. 233).</p> <p>4. The court did not err in overruling the petition for certiorari.</p>

<p>“ An accusation in a city court, in- the absence of a clear contrary provision in the act creating the court, may lawfully be based upon an affidavit charging the defendant with the offense of ‘ misdemeanor.’ ”</p>

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

<p>Action for malicious prosecution; from city court of Bainbridge — Judge Spooner. August 26, 1921,</p>

<p>Complaint; from city court of Washington. — Judge Sutton. September 5, 1921.</p>

<p>Certiorari; from Bibb superior court — Judge Malcolm D. Jones. August 20, 1921.</p>

<p>Complaint; from Warren superior court — Judge Shurley. September 16, 1921.</p> <p>The Warren County Fertilizer Company sued Hyman on a promissory note in the principal sum of $1,259.07, besides interest and attorney’s fees. The defendant by his plea admitted the execution of the note, but claimed that he was entitled to a credit thereon in the sum of $700 under a previous agreement made at the time of the delivery or pledge of certain cotton. On the trial the defendant offered to show “ that Mr. Scruggs and Mr. English, representing the Warren County Fertilizer Company, came to the house of Mr. Hyman and insisted upon Mr. Hyman depositing with the Warren County Fertilizer Company some cotton to secure the payment of his fertilizer note held by the company; that Mr. English then and there stated to Mr. Hyman that, if he (Hyman) would deposit some cotton with the company to secure his note, the company would allow him (Hyman) $100 per bale, to be credited upon his (Hyman’s) fertilizer note; that the cotton, seven bales, was stored in the warehouse; and that he (Hyman) then and there, on the statement of Mr. English, delivered to Mr. Scruggs in English’s presence warehouse receipt for seven bales of cotton.” This testimony was ruled out on the sole objection made, that it sought to contradict the terms of a written instrument, governing the pledge of the cotton, and coming from the custody of the defendant, which had been introduced in evidence, and which was as follows:</p> <p>“ Norwood, Ga., Noy. 27, 1920.”</p> <p>“ Beceived of P. S. Hyman ” (naming and describing the 7 bales in question, giving weights and warehouse receipt numbers) — “ To be held and when sold applied to fertz. note.</p> <p>“ M. W. Scruggs.”</p> <p>The defendant excepts to the exclusion of the testimony offered, and contends: (1) that, the written instrument being merely a receipt, parol evidence was admissible to explain, add to, or contradict it; and (2) that the receipt, even-though treated as a contract, was incomplete, in that it did not purport to contain all of the agreement, since it did not declare what ¿mount arising from the proceeds of the sale of the cotton was to be applied on the note, nor did it fix the time during which, under the receipt, the cotton should be held or when such a sale was to be made; and that consequently the parol evidence was admissible to prove the omitted portions of the agreement, which it is contended are not inconsistent with the stipulations actually contained in the written instrument.'</p>

<p>Action for damages; from city court of Atlanta — Judge Eeid. August 24, 1921.</p> <p>Certiorari was granted by the Supreme Court.</p>

<p>Certiorari; from Cobb superior court — Judge Blair. August 20, 1921.</p>

<p>Garnishment; from city court of Madison — Judge Lambert. September 3, 1921.</p>

<p>Certiorari; from Floyd superior court •— J udge Wright. October 4, 1921.</p>

<p>Appeal; from Bichmond superior court — J udge Iienry C. Hammond. October 17, 1921.</p> <p>A testator’s daughter, who was a beneficiary under his will, filed in the court of ordinary an application for an accounting from the executors. The executors answered that she had received from the testator between the time of the making of the will and his death $2,300, which should be paid into the estate before a settlement or distribution could properly be made, and which they contended was not a gift, but an advancement resulting in an ademption of a legacy to the petitioner. From a judgment of the ordinary, finding this sum to have been an advancement and not á gift, the beneficiary appealed to the superior court, where a jury found in her favor. The executors excepted to the refusal to grant a new trial.</p> <p>Paragraph 2 of the decision relates to the following language of the charge: “ The special question which is submitted to you for your determination, under the evidence and the law given you in charge by the court, is as to whether or not $2,000, which was given to his daughter, Mrs. Oreen, during her lifetime, was a gift-pure and simple, without more, or whether or not it was given to her instead, in place, in ademption of a legacy.” The specific exception taken to this instruction is that the word “ given,” as used in the clause, “which was given to his daughter,” amounted to an expression of opinion upon a material issue in the case. This was the only ground of the motion for a new trial other than the general grounds.</p>

<p>Complaint; from Cobb superior court — -Judge Blair. October 1, 1921.</p>

<p>Action for damages; from city court of Newnan — Judge Post. October 24, 1921.</p>

<p>Certiorari; from Wheeler superior court — Judge Graham. September 28, 1921.</p>

<p>Action on contract; from city court of Savannah — -Judge Freeman. November 9, 1921.</p>

<p>The evidence in behalf of the plaintiff clearly showing that the work of her husband (for whose death the action was brought) shifted and necessarily changed the character of the place for safety as it progressed, and that the dangerous situation was created by the work itself, and that he knew of the danger or had better means than the master of knowing such condition, the trial court did not err in sustaining the motion to nonsuit. Thomas v. Georgia Granite Co., 140 Ga. 459 (79 S. E. 130); Cowart v. Southern Marble Co., 144 Ga. 254 (87 S. E. 282); Upchurch v. Culpepper, 17 Ga. App. 577 (87 S. E. 834); Robertson v. Merchants & Miners Transportation Co., 18 Ga. App. 568 (90 S. E. 104).</p>

<p>Indictment for misdemeanor; from Bibb superior court — Judge Malcoim D. Jones. January 6, 1922.</p>

Certiorari; from Fulton superior court —• Judge Pendleton. December 14, 1921. Application for certiorari was denied by the Supreme Court. Thomas II. Austin and the Standard Coal Company were charged with having violated an ordinance of the City of Atlanta by selling coal without weighing it, and without furnishing on delivery of the coal a written statement of its weight.

Action for damages; from Fulton superior court — Judge Ellis. February 7, 1922. Tbe judgment complained of was as follows: 11 Beading the plaintiff’s petition as a whole, it appears that the plaintiff was not a patient of the defendant corporation. She was used as a remedy by the physician in charge of another patient.

<p>Accusation of fraudulent sale by tenant; from city court of Dublin — Judge Sturgis. February 16, 1922.</p>

<p>Indictment for larceny of automobile; from Jefferson superior court ■ — • Judge Hardeman. March 15, 1922.</p>

<p>Indictment for carrying concealed weapon; from Cobb superior court ■ — • Judge Blair. August 20, 1921.</p>

<p>No right to recover for services to the city as an architect was shown by the allegations of the plaintiff’s petition, and the court erred in not sustaining a general demurrer to the petition.</p>

<p>Affidavit of illegality of execution; from Taylor superior court — Judge Munro. October 8, 1921.</p>

<p>Accusation of misdemeanor; from city court of Floyd county — Judge Nunnally. January 31, 1922.</p>

<p>Complaint; from Warren superior court — Judge Shurley. February 4, 1922.</p>

<p>Indictment for arson; from Lowndes superior court — Judge Thomas. February 8, 1922.</p>

<p>The instruction to the jury that “ the defendant pleads not guilty to the charges which are thus made against him, and the charges and the plea form the issue' that you are to try and determine by your verdict,” was not subject to the exceptions taken.</p> <p>The instructions on manslaughter and justifiable homicide, and as to the offense of stabbing, were not erroneous for any reason assigned.</p> <p>An instruction to the effect that the jury should take “ the evidence from the witnesses,” apply the law to it, and make up their verdict, was not ground for a new trial for the reason alleged, that the jury were not instructed to consider the defendant’s statement along witn the evidence of the witnesses. The court properly instructed the jury as to the defendant’s right to make a statement at the trial, and as to the jury’s right to accept it or to disbelieve it.</p> <p>The verdict finding the defendant guilty of voluntary manslaughter was authorized.</p>

<p>Whether, the alleged contract was within the statute of frauds is a question not properly before this court.</p> <p>The evidence demanded a finding that a valid and binding contract existed between the parties by reason of the telegrams and letters that passed between the plaintiff' and the broker, who, under ti e evidence, was agent for both parties, although he testified that he did not consider himself the agent of the defendant in the transaction.</p> <p>A valid and binding contract having been made, the defendant’s subsequent refusal to sign a formal written contract tendered by the plaintiff was immaterial; and it was immaterial whether this tendered contract contained material variations from- the previous contract. Conflict of evidence as to the market price of the goods was immaterial, as the action was based on that part of section 4131 of the Civil Code (1910) which provides that where a purchaser refuses to take and pay' for goods bought, the vendor “ may sell the. property, acting for this purpose as agent for the vendee, and recover the difference between the contract price and the price on resale.”</p> <p>An indefensible breach of the contract by the defendant was shown, no • material issue of fact was made by the evidence, and the direction of the verdict in favor of the plaintiff was not error for any reason assigned.</p>

<p>Indictment for possessing liquor; from Muscogee superior court —-Judge Munro. March 25, 1922.</p>

<p>Indictment for manufacture of liquor; from Gwinnett superior court — Judge Fortson. March 17, 1922.</p>

<p>Accusation of possessing liquor; from city court of Blackshear — Judge Mitchell. March 31, 1922.</p>

<p>Complaint; from Gordon superior court — Judge Tarver. March 31, 1922.</p>

<p>Levy and claim; from city court of Carrollton — Judge Hood. March 23, 1922.</p>

<p>Action for damages; from Gwinnett superior court — Judge Fortson. March 7, 1922.</p>

<p>Complaint; from Fulton superior court — Judge Pendleton. March 15, 1922.</p>

<p>Conviction of manslaughter; from Fulton superior court — Judge Humphries. March 27, 1922.</p>

Action on contract; from Bibb superior court — Judge Malcolm D. Jones. March 31, 1922. Application for certiorari was denied by the Supreme Court. Befusal to take and pay for certain' shares of stock alleged to have been purchased by Turner, the defendant, from the plaintiff, Mrs. Hillyer, under a certain written contract, is the ground of this action.

<p>Indictment for burglary; from Fulton superior court — Judge Humphries. April 15, 1922.</p>

<p>The defendant had the right to prevent the flow of water upon his premises from the roof of the building occupied by the plaintiffs, by stopping up the holes in the wall through which it flowed into the drain-pipes, and he was not liable for damage caused by rainwater standing on the roof and leaking into the building in consequence of his closing the holes.</p> <p>The court did not err in granting a nonsuit.</p>

<p>Complaint; from Colquitt superior court — Judge Thomas. April 14, 1922.</p> <p>The action was by a vendor, for the price and the expense of. shipment and-storage of goods shipped after the order for the goods had been countermanded and notice given that the purchasers would not accept them if shipped, and after tender of the goods to the purchasers at the place to which they were shipped, and after the vendor, on refusal of the tender, had taken them from the carrier and there stored them for the purchasers and notified the purchasers that they had been so stored. The defendants contended that the remedy of the plaintiff was not an action for the price, but was an action for damages for breach of contract; that the provision of the Civil Code, § 4131, that the seller “ may store or retain the property for the vendee and sue him for the price,” does not apply where the contract of sale is executory and the purchaser has given notice before shipment of the goods that he will not accept them. The court, sitting without a jury, tried the case upon the pleadings and an agreed statement of facts, and rendered judgment for the plaintiff, the judgment reciting, that, “it appearing from the agreed statement of facts that the plaintiff stored the goods pursuant to the provision.of the statute and gave the defendants notice, and it further appearing that such storage with notice was done after the defendants had failed and refused to have and pay for the goods, it is held that the plaintiff is entitled to recover,” etc.</p> <p>From the agreed statement of facts it appeared that in March the defendants ordered the goods in question from the plaintiff and that the plaintiff accepted the order and agreed to ship the goods to the defendants, the shipment to be made in the following August, and that in August and after the shipping date had been deferred by mutual consent until such reasonable time as the defendants should request shipment, the defendants attempted to cancel their order and notified the plaintiff that they would not accept the goods; and in the following September the plaintiff shipped the goods, and upon their arrival at destination they were tendered to the defendants by the carrier and the tender refused, whereupon the plaintiffs, through their agents, took possession of the goods and had them stored in a public warehouse, and gave notice of this to the defendants and brought this action.</p>

<p>Petition for certiorari; from Colquitt superior court — Judge Thomas. April 3, 1922.</p>

<p>Complaint; from Newton superior court — Judge Hutcheson. March 31, 1922.</p>

<p>Action for damages; from city court of Americus — Judge Harper. April 1, 1922.</p>

<p>Indictment for burglary; from Cobb superior court — Judge Blair. April 15, 1922.</p>

<p>Indictment for manufacture of liquor; from Cobb superior court — Judge Blair. April 15, 1922.</p>

<p>Indictment for arson; from Wilkes superior court — Judge Shurley. April 1, 1922.</p>

<p>Certiorari; from Warren superior court — Judge Shurley. April 8, 1922.</p>

<p>Indictment for larceny from house; from Wilkes superior court — Judge Shurley. April 1, 1922.</p>

Indictment for arson; from Fulton superior court — -Judge Humphries. April 19, 1922. Application for certiorari was denied by the Supreme Court. King was charged with having set fire to and burned his dwelling house at No. 25 Fortress Avenue in the City of Atlanta on April 2, 1921.

<p>Accusation of assault and battery; from city court of Macon — Judge Gunn. April 28, 1922.</p>

<p>Indictment for possessing intoxicating liquor; from Cobb superior court — Judge Blair. April 29, 1922.</p>

<p>Indictment for manufacture of liquor; from Douglas superior court — Judge Irwin. April 14, 1922.</p>

<p>Indictment for possessing liquor; from Cobb superior court — Judge Blair. April 15, 1922.</p>

<p>Accusation of possession of liquor; from city court of Thomas-ville — Judge W. H. Hammond. April 6, 1922.</p>

<p>Indictment for larceny; from McIntosh superior court — Judge Sheppard. April 11, 1922.</p>

<p>Indictment for manufacture of liquor; from Haralson superior court — Judge Irwin. April 5, 1922.</p>

<p>Indictment for robbery; from Glynn superior court — Judge Highsmith. April 15, 1922.</p>

<p>Indictment for assault with intent to murder; from Haralson superior court — Judge Irwin. April 5, 1922.</p>

<p>Indictment for burglary; from Baldwin superior court — Judge Park. April 24, 1922.</p>

<p>Indictment for larceny; from Polk superior court' — ■ Judge Tison. April 27, 1922.</p>

<p>Indictment for burglary; from Fulton superior court — Judge Humphries. April 20, 1922.</p>

<p>Indictment for larceny of automobile; from Fulton superior court — Judge Humphries. April 3, 1922.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Indictment for larceny of cattle; from Camden superior court — Judge Highsmith. May 4, 1922.</p>

Action on contract; from Taliaferro superior court — Judge Shurley. July 15, 1921. Application for certiorari was made to the Supreme Court. Smith sued Battle, alleging: “ 2. That defendant is indebted to plaintiff in the sum of $8,000.00, besides interest on said sum at the rate of 7 % per annum since March 31, 1921, by reason of the facts hereinafter set out. 3.

<p>Indictment for trespass; from Mitchell superior court- — -Judge E. C. Bell. April 24, 1922.</p>

<p>Action for damages; from city court of Savannah — Judge Freeman. September 16, 1921.</p>

<p>Accusation of larceny; from city court of Dublin — -Judge Sturgis. March 22, 1922.</p>

<p>Appeal; from Campbell superior court — Judge Hutcheson. April 5, 1922.</p>

<p>Trover; from city court of Eeidsville — Judge Cowart. April 3, 1922.</p> <p>E. C. Collins brought trover against John Hammock and Arthur Hammock for stated quantities of corn, cotton in seed, etc., alleged to have been raised on certain land of the plaintiff. The trial resulted in a verdict in favor of the plaintiff, for $50. The plaintiff testified: “I rented to the defendants the Dan Wilds place for the year 1919. . . I am suing for what my part of the crop amounted to. . . They were to receive half the crop. . . I saw the crop several times during the time it was growing and once or more after it matured, and I know that enough was made that my part of the crop should have been as follows: 1000 bundles of fodder valued at $20, 100 bushels of corn of the value of $150, 25 bushels of peanuts of the value of $75, 10 bushels of peas of the value of $50, 500 pounds of upland cotton in the seed of the value of $60 ” (the products, quantities, and values which were alleged in the petition). “ The defendants told me that they were going to make four bales of cotton. They delivered to me a small bale of cotton and two or three little loads of corn, and that is all I got off the farm. Defendants took possession of all the remaining crops. I am sure that I was entitled to 500 pounds of seed cotton. All the other items sued for are estimates, but I know that there was enough in the fields after maturity to be at least that much for me, over and above what I received. I have no way of knowing exactly what was made on the place. I consented for the defendants to keep half the corn.” There was no further evidence for the plaintiff. Defendant John Hammock testified: “Judge Collins got all we made on the place in the year 1919, except two little loads of corn, which he agreed for us to keep. I think the bale of cotton we delivered to him weighed about 300 pounds. There were 300 bundles of fodder pulled on the place and stored in a house there. We planted 8 acres of corn and 10 acres of cotton. It rained nearly all the year from the middle of the summer on through the gathering season, and the crop just drowned out and we made practically nothing. I even took the little remnant of cotton I made on my own place and put it in the bale that I delivered to Judge Collins. The Dan Wilds place is a low, flat, sandy bottom, and in an extremely wet year like 1919 it is impossible to make a crop. We made no peanuts nor peas, and it rained and ruined nearly all the fodder we pulled. It rotted hanging on the stalks. We tended the crop the best we could. A man would bog down walking across the field and the grass ■got higher than the cotton, and, in some places, higher than the corn.” Arthur Hammock testified: “We didn’t make anything. Judge got all we made. The place just drowned out and it was impossible to make anything.” The testimony of the Hammocks was supported in part by that of other witnesses.</p>

<p>Indictment for sale of property under lien; from Taliaferro superior court — Judge ShurJev. April 11, 1922.</p>

<p>Indictment for larceny; from Whitfield superior court — Judge Tarver. April 19, 1922.</p>

<p>Indictment for possession of liquor; from Gwinnett superior court — Judge Fortson. April 19, 1922.</p>

<p>Indictment for manufacture of liquor; from Warren superior court — Judge Shurley. April 1, 1922.</p>

<p>Indictment for possessing liquor; from Forsyth superior court — Judge Blair. April 29, 1922.</p> <p>Sheriff Merritt, of Forsyth county, testified, that the first time lie saw Iienry Davis, the defendant, he saw two Overland cars — little fours — going north, towards Dawson countjr, “just about good dark,” and that, with his deputy, Bennett, he lay in wait that night and until between two and three o’clock in the morning, when two cars of the same kind, which in his opinion were the same cars, came back; that he and his deputy put two sills across the road, to block the cars coming back, and when he saw them in the distance, approaching, he went towards them to a point in the road about 200 or 300 yards from the block, and got behind bushes and let the first car pass and reach the block, where it stopped when the other car was about even with him; that there was then an attempt to turn the second car around, and he ran out to stop it, and the two men who were in it got out, and he did not get either of them then but found twenty or forty gallons of liquor in the car; that he “ finally got one when he came up afterwards;” that this man said in jail, “when they were all there together,” that “he lived in Stone Mountain, and this defendant said he lived in Stone Mountain; the parties that filed the claim for the automobiles said they lived in Stone. Mountain; ” that “ the car that Davis was in was the front car,” and there was another man with him. On cross-examination this witness said that he “ couldn’t say the defendant, was in either car going up,” and that the only reason he identified the cars was that one had the curtains up — the one that had the whisky in it; that he saw no connection between the cars, and saw no sign from the front car to the second car; and that he did not see the defendant with any whisky, and did'not see any whisky in the front car, but saw a quart bottle or pint bottle when he got to the first car.</p> <p>Bennett testified: “ I was sort of even with the block at the time the cars were captured. I saw this defendant Henry Davis in the front car that was captured. When the front car was approaching the block and about the time it made its stop, there was a bottle of whisky thrown from the car, . . but I don’t know who threw it out; . . the front car didn’t have whisky. . . I did not see this defendant with any liquor at all; I couldn’t swear who threw the bottle of whisky from the car; the other car, with the whisky, was some three or four hundred yards behind the front car; . . I did not see anybody flash any light or give any signal from the front car to the rear; I was where 1 could see. As well as I recollect, . . Bichardson was driving the front car, and not the defendant.</p> <p>The defendant, in his statement at the trial, said that Bichardson came through Stone Mountain in a car, going to a sister and brother-in-law, and asked him to go in the ear with him; that he did so, and on their way back""these men’" stopped them; that if there was any whisky in the car, or if Bichardson had any, he did not see it; that he (the defendant) did not have any, and did not see any from the time he left home until they got back.</p>

<p>1. If error was committed by the court in allowing the petition to be amended so as to allow the ease to proceed in the name of Mrs. Ella Harris “in her own right” for the recovery of $500, the amount of the insurance on the furniture, this did not result in injury to the defendant; as the error, if any, was cured by the court directing a verdict against her as to this item.</p> <p>2. The court erred in directing a verdict in favor of Mrs. Harris for the use of C. 0. Griffin, for $2,500, the amount of insurance on the dwelling. The evidence shows that the contract sued upon had been extinguished by a new agreement between Forman and the insurance company, which amounted to an accord and satisfaction binding upon both parties.</p> <p>(Bloodwoktii, J., dissents.)</p>

<p>Action on insurance policy; from city court of Macon — Judge Gunn. November 4, 1921.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Complaint; from city court of Houston county — Judge Biley. November 23, 1921.</p>

<p>Action, for damages; from Glynn superior court — Judge High-smith. May 26, 1921.</p>

<p>Indictment for larceny from house; from Wilkes superior court — Judge Shurley. April 1, 1922.</p> <p>Ollie Thomas was charged with having stolen speckled field peas from an outhouse of T. B. Cosby. Cosby testified that he missed from his outhouse twelve or fifteen bushels of peas stored there, of the kind described in the indictment; that the outhouse was locked and that the staples were drawn, and that afterwards, at Mr. Short’s store, in Helena, Mr. Short identified to him two negroes from whom he (Short) had bought peas, one of them as having sold speckled peas, and the other white peas, and that “ Mr. Short bought white peas from Ollie,” the defendant; that they both denied taking the peas, and he (the witness) thought they both said the peas belonged to Duck, a negro woman that lived at Mr. Joe Grenade’s; and that the defendant lived with Mr. Tom Grenade, about 500 yards from the barn of the witness. J. W. Grenade testified that the defendant and the other negro said they “ brought ” the peas from the negro woman Duck, who lived with the witness, but he (the witness) knew that this was not true; that when he returned home he found all the peas that belonged to her. Short testified that the peas sold to him by the defendant were white peas, that the defendant’s companion sold speckled peas, and that they were together, in a wagon, when the peas were sold. Tom Grenade testified: “ I had a conversation with Ollie Thomas and Scrap Allen since they have been in jail about stealing peas from Mr. Cosby. . The first time Ollie said. . he didn’t steal any peas from Mr. Cosby •— said he picked them out of my field and sold them. He sent for me again . , and said, c Boss, I didn’t tell you the truth before; I am going to tell you the truth now. . . I didn’t steal any peas at all; it was Scrap who stole them all.’ . . I said, ‘ Scrap, did you steal all the peas ? ’ He said, 1 Yes, sir.’ He said he carried them up to Ollie’s house; that was the last time; but the first time Scrap told me he stole them from Mr. Cosby and carried them to Ollie’s house. Ollie was there all the time during that conversation. He admitted that, but he denied that they were stolen — said he didn’t know they were stolen.” The defendant, in his statement at the trial, said that the peas were brought to his house by Scrap, and that he did not know that they were stolen.</p>

<p>Indictment for felony; from Barrow superior court — Judge Fortson. February 11, 1922. .</p>

<p>Complaint; from Pulaski superior court — Judge Graham. May 21, 1921.</p>

<p>Accusation of larceny; from city court of Bainbridge — Judge Spooner. May 1, 1922.</p>

<p>Affidavit of illegality; from Pulaski superior court — Judge' Graham. June 15, 1921.</p>

<p>Trover; from cityr court of Atlanta — Judge Reid. May 30, 1921.</p>

<p>Action for damages; from Wilkes superior court — Judge Stanley. June 13, 1921.</p>

<p>Action for damages; for city court of Savannah — Judge Rourke. June 15, 1921.</p>

<p>Action on insurance policy; from Sumter superior court — Judge Littlejohn. ■ July 14, 1921.</p>

<p>Complaint; from 'city court of Atlanta — Judge Reid. June 22, 1921.</p>

<p>Foreclosure of mortgage; from Laurens superior court — Judge Kent. July 27, 1921.</p>

<p>Action for damages; from city court of Carrollton — Judge Iiood. August 5, 1921.</p> <p>Application for certiorari was made to the Supreme Court.</p>

<p>Trover; from Monroe superior court — Judge Searcy. July 16, 1921'.</p>

<p>Action for damages; from Whitfield superior court —Judge Tarver. August 9, 1921.</p>

<p>Action for damages; from Fulton superior court — Judge Ellis. September 14, 1921.</p>

<p>Appeal; from Douglas superior court — Judge Irwin. September 14, 1921.</p>

<p>Action for damages; from city court of Richmond county — Judge Black. September 23, 1921.</p>

<p>Complaint; from city court of Hall county — Judge Sloan. October 1, 1921.</p>

<p>Complaint; from city court of Quitman — Judge Baum. October 17, 1921.</p>

<p>Certiorari; from Walker superior court — Judge Wright. August 26, 1921.</p>

Complaint; from city court of LaGrange — Judge Duke Davis. October 31, 1921. Zemurray sued Hagedorn upon an account for bananas sold to Pappas under the following letter .written by Hagedorn and addressed to one Wineberger, a friend and business associate of Zemurray, which was delivered in person by Wineberger and Pappas to Zemurray’s business manager, and upon the faith of which it was alleged and testified the credit was given; “ This will introduce to you Mr. Geo.

<p>Certiorari; from Ben Hill superior court — Judge Gower. October 19, 1921.</p> <p>Application for certiorari was made to the Supreme Court.</p>

<p>Complaint; from city court of .Savannah — Judge Freeman November 8, 1921.</p>

<p>Action for damages; from Bibb superior court — Judge Mathews. October 18, 1921.</p>

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

<p>Complaint; from city court of Valdosta — Judge Cranford. December 9, 1921.</p>

<p>Complaint; from Muscogee superior court — Judge Munro. November 12, 1921.</p>

<p>Action for-damages; from Richmond superior court — Judge Henry C. Hammond. November 16, 1921.</p>

<p>Complaint; from city court of Brunswick — Judge Butts. December 17, 1921.</p>

<p>Action on insurance policy; from Bibb superior court — Judge Mathews. December 10, 1921.</p>

<p>Certiorari; from Whitfield superior court — Judge Tarver. December 10, 1921.</p>