Volume 3 — Georgia Appellate Reports

<p>Action for damages, from city court of Reidsville — Judge Morgan. April 8, 1907.</p>

<p>Appeal, from Sumter superior court — Judge Littlejohn. June 4. 1907.</p>

<p>Indictment for forgery, from Terrell superior court — Judge Worrill. July 6, 1907.</p>

<p>Indictment for unlawful sale of liquor, from Douglas superior court — Judge Edwards. August 24, 1907.</p>

<p>Accusation of cheating and swindling, from city court of Nashville — Judge Peeples. September 7, 1907.</p>

<p>Indictment for gaming, from city court, of- Elberton — Judge Proffitt. August 9, 1907.</p>

<p>Accusation of misdemeanor, from city court of Ashburn— Judge Hawkins. September 4, 1907.</p>

<p>Accusation of gaming, from city court of Polk county — Judge Irwin. October 4, 1907.</p>

<p>Indictment lor kidnapping, from Jefferson superior court— Judge Holden. September 37, 1907.</p>

<p>1. The refusal of the court to enter judgment by default against the plaintiff, for failure to produce documents required by notice served on behalf of the defendant, was not an abuse of discretion.</p> <p>2. -A contract of carriage, though made in a foreign State, is not necessarily governed, in matters of construction and effect, by the laws of that State, where the contract is to be partly performed in this State; this is especially true as to requirements which are to be wholly performed in this State.</p> <p>3. A pass entitling a shipper to transportation without payment of fare is a good consideration to support a special contract made by him with the carrier, limiting the latter’s common-law liability.</p> <p>4. If a carrier relies upon a special contract to vary his common-law liability, the burden is on him to show that any damage which occurred was within the exception, and also that it was not occasioned by his negligence.</p> <p>5. Where a contract of shipment requires the owner or shipper to give notice in writing of any damage to the shipment before it is unloaded, such stipulation may be waived. If the carrier’s agent without objection to the form of the notice receives and acts upon an oral notice, a waiver of the requirement as to its being in writing results.</p> <p>>6. The court erred in directing a verdict.</p>

<p>1. The verdict of a jury should not be set aside .upon the assignment of error that it is without evidence to support it, if there is any evidence to support it, unless it be further made to appeal-, (a) that some ruling of the court improperly withheld evidence from the jury, (6) or illegally permitted the jury to consider testimony which should not have been submitted to them, or (c) that the court’s instructions, as ■ applied to .the evidence, were erroneous, inapplicable, or misleading.</p> <p>2. The evidence authorized the verdict.</p> <p>3. Books of account may be introduced in evidence, even though it may not have been shown that the merchant or other proprietor kept no clerk. Such books may tend to support the credit of the plaintiff before the jury, and, for the purpose of corroboration, they may be admitted. The mere fact that a book is kept in ledger form is not a valid objection to its admission as a book of original entries; and even if the ledger in this ease was not a book of original entries, its admission was harmless to the defendant, as the entries thereon tended only to prove facts already submitted to the jury by other means in the testimony. The books contemplated by the Civil Code, §5182, are permanent books. Irrregularities in books of account sought to be introduced in evidence “should be exceedingly gross, and palpable, to justify the court in arresting the evidence from that tribunal whose peculiar province it is to judge of the credibility of testimony.” Bower v. Smith, 8 Ga. 77. Where it appears from the record that prior to the admission of the books, the plaintiff and his clerk and bookkeeper were thoroughly examined in the presence of the court with reference to them (the nature of such examination rendering a thorough examination of the books necessary in view of the court), and that the judge had ample opportunity to inspect them, he will be presumed to have seen and to have been satisfied that they were free from any suspicion of fraud.</p> <p>-4. A trial judge is not required to give in charge to the jury the contents of a written request, if any portion thereof is erroneous. No complaint can be made where the judge presents to the jury that portion of the. request which is legal, and omits and declines to charge the portion of the request which is not in accordance with law.</p> <p>5. One who claims that another was liable for the hire of his automobile, used without his knowledge and consent, is only entitled to recover reasonable hire for its actual use, as found by the jury. In the absence of any contract between parties, the question whether he who used the automobile did or did not “make a practice of doing so ” would be immaterial.</p> <p>• 5. The charge excepted to in the fifth ground of the motion, while inapt in expression, is not sufficiently erroneous, when considered with other instructions of the court upon the same subject, to require the grant of a new trial.</p>

<p>Action for damages, from city court of Atlanta — Judge Eeid. April 3, 1907.</p>

<p>1. Lien laws, being in derogation of the common law, are to be strictly-construed, and he who claims a lien must show that there was a contract, by the terms of which he is entitled to the lien he claims.</p> <p>2. “Primarily, a clerk in a mercantile establishment is not a ‘laborer’ in the sense in which that word is used in §1974 [now §2729] of the code, even though the proper discharge of his duties may include the performance of some amount of manual labor.” When a clei'k seeks to foreclose a lien as a laborer he assumes the burden of proving that the labor he contracted to perform, as well as such as he did in fact perform, was mainly physical, and that by reason of the nature of his employment he can properly be classed as a laborer.</p> <p>3. If the contract of employment of a clerk in a store contemplates that his services are to consist mainly of work requiring mental exercise, or personal influence in inducing custom, and involving the use of his intellectual faculties, rather than work dependent upon physical power to perform manual labor, he would not be a laborer. “If, on the other hand, the work which the contract requires the clerk to do was, in the main, mere manual labor, he would be a laborer.”</p> <p>4. The nature of the labor to be performed, and whether the mental element preponderates' or not, is to be determined by the contract of employment. And while the facts and circumstances as to the duties actually performed may be considered, where the contract of employment rests in parol, in determining what was the real contract the nature of the duties required to be performed under the contract classifies one as a laborer or as not a laborer. One who claims a laborer’s lien must be classified with reference to the character of the services required of him by his employer under the terms of the contract of employment.</p> <p>5. The evidence being insufficient to establish the fact that the plaintiff was a laborer, the certiorari should have been sustained.</p>

<p>I.1 The material question in this case is fully controlled by the decision of this court in Cuesta v. Goldsmith, 1 Ga. App. 48 (57 S. E. 983).</p> <p>2. The verdict for the defendant, being wholly unsupported by the evidence, must be set aside as contrary to law.</p>

<p>Certiorari, from Tattnall superior court- — -Judge Bawlings. January 28, 1907.</p>

<p>1. Where a defendant in a suit brought against him as a principal, to recover the sums due on certain notes, and who had filed a plea averring that he was in fact only a surety, offered an amendment to such plea, properly verified, averring that, by reason of usury exacted without his knowledge by the plaintiff from the principal, a waiver of homestead contained in said notes had been avoided and the security of the waiver thereby had been destroyed, whereby the liability of the defendant as; surety was increased, it was error to refuse such amendment. The plea of usury was a good defense, if the jury was satisfied that the defendant was a surety and that usury was, without his knowledge or consent, collected from the principal on the notes; and the plea could have been established by parol evidence.</p> <p>'2. The verdict directed in favor of the plaintiff was not, in view of the state of pleadings, itself erroneous, but it was not necessarily the proper ’ legal result of the trial; and as the error in refusing defendant’s amendment to his plea necessarily compelled the return of the verdict rendered, and as exceptions to both rulings are properly presented in accordance with the decision in Lyndon v. Ga. Ry. & Electric Co., 129 Ga. 353 (58 S. E. 1047), the defendant is entitled to a new trial and to the allow.anee of his amendment.</p>

<p>1. A suit for the benefit of creditors, against the stockholders of an insolvent corporation, alleging individual liability under the provisions of section 1856 of the Civil Code, is properly brought by the receiver of such corporation, under the direction of the court.</p> <p>2. The petition as amended set forth a good cause of action, and the demurrer thereto was properly overruled.</p> <p>3. “Persons who organize a company and transact business in its name before the minimum capital stock has been subscribed for” can not escape liability to the creditors of such company by selling their stock to the corporation itself before the debts are incurred. Such attempted sale is a device to evade liability under the Civil Code, § 1856, and is ineffective and void as to creditors.</p> <p>4. A plea setting up the defense covered by the foregoing headnote should have been stricken on demurrer.</p>

<p>Indictment for perjury, from Quitman superior court — Judge 'Worrill. May 7, 1907.</p>

<p>Action for trespass, from city court of Quitman — Judge Ben-net. April 12, 1907.</p>

<p>Action for damages, from city court of Richmond county— Judge Eve. May 18, 1907.</p> <p>This action was instituted by Mrs. Blackmon against the Louisville & Nashville Railroad Company and the Atlantic Coast Line-Railroad Company, as lessees of the Georgia Railroad, W. E. Platt, and W. R. Houston, as joint tort-feasors. The portions of' the petition material to an understanding of the issues presented before the court are as follows: “On or about June 6, 1906, Thomas J. Blackmon, the husband of the plaintiff, while in the-discharge of his duty as engineer on an engine on said road between Atlanta and Augusta, was fatally injured in a collision or-wreck on said railroad, and, after said injury, the said Thomas J. Blackmon was, by th.e officers or employees of said railroad, placed under the charge of said W. R. Houston, physician and surgeon, who had been sent to the scene of the wreck by the officers of said company for the purpose of giving professional attention to said Thomas J. Blackmon and others who were injured; and the said W. R. Houston was the authorized agent and surgeon of said lessees. The said Thomas J. Blackmon was promptly removed to the hospital in the city of Augusta, under the direction of said W. R. Houston, agent and surgeon as aforesaid, who gave him professional attention up to the time of his death, which occurred about thirty-six hours after the injury. After the death' of said Thomas J. Blackmon at the hospital, his body, under the direction-of said W. R. Houston, or other agent of said lessee companies, was removed to the undertaking establishment of said W. E. Platt, in the city of Augusta, where said body, on the same day, with the consent and co-operation of said W. E. Platt, was terribly mutilated by the said W. R. Houston, agent and servant as aforesaid, by cutting and sawing said dead body from the top of the breast bone clear down nearly to the pelvic bone, and all the internal^ organs were taken out, but afterwards replaced by the said W. R. Houston, agent and surgeon as aforesaid, or the said W. E. Platt, acting in co-operation with him. The mutilation of the remains of plaintiffs husband as aforesaid was done without lawful authority, and without the consent of this plaintiff or of any other member of the family of deceased, dr any relative or kinsman, and said mutilation was not discovered until after the remains had been shipped to Atlanta for burial and an examination of them was there made; and when the facts were disclosed to plaintiff she suffered intense mental pain and anguish by reason thereof. Plaintiff charges that in mutilating the remains of her husband as aforesaid, all of said defendants were joint tort-feasors, and each and all are liable to her in law, and she claims damages in the sum of five thousand dollars, and asks judgment of the court for the same.” Each defendant filed a general demurrer, which the court overruled. The defendants jointly and severally assign error in that judgment.</p>

<p>1. Where it appears from the bill of exceptions that it was duly tendered to the trial judge, a mere failure on his part to certify the same within the prescribed time shall be no cause for dismissal.</p> <p>2. Judgments based on provable debts are released by the discharge of the judgment debtor in bankruptcy. Therefore, in a claim case, a certificate of discharge in bankruptcy of the defendant in fi. fa. is admissible in evidence, as the basis of an attack by the claimant on the judgment against the defendant.</p> <p>3. A charge containing a correct statement of an abstract principle of law, but not applicable to the evidence, and tending to mislead the jury and prejudice the rights of one of the litigants, is reversible error.</p> <p>■4. The claimant fully established by uneontradieted evidence her title to the property in dispute; and the verdict finding the property subject should be set aside and a new trial ordered.</p>

<p>Complaint, from city court of Baxley — -Judge Thomas. April 13, 1907.</p>

<p>Appeal, from Macon superior court — Judge Littlejohn. May 13, 1907.</p>

<p>Certiorari, from Montgomery superior court — Judge Martin. May 18, 1907.</p> <p>Calhoun brought suit against the Macon, Dublin & Savannah Bailroad Company, in a justice’s court. The summons was in the usual form. The copy of the cause of action, attached to the summons, was in the following language: “The Macon, Dublin & Savannah B. B. you are Dr. to C. II. Calhoun $8.00 for killing one heifer two years old belonging to said defendant, By the engine of a freight train, at 82 mile post in said district, on or about the '20th day of August 1906 and the said C. H. Calhoun are damage to the amount of eight dollars caused by the careless running and managing of the locomotive By emploj'ee of said railroad company the heifer was well worth amt. defendant did not cause the dam•age by any negligence on his part and defendant is damaged to ;said amt. $8.00 in said summons.” The railroad company filed a general demurrer to the summons, on the ground that no cause of .action is set forth and no specific acts of negligence are alleged. 'The justice overruled the demurrer, and, after hearing the evidence, rendered a judgment in favor of the plaintiff, for $8 and costs. The defendant filed a petition for certiorari. The judge of the superior court sustained the certiorari and remanded the •case to the court below for a new trial, with instruction to render .a verdict for the defendant, “unless a stronger case is made for the plaintiff, C. H. Calhoun.” To this order the defendant excepted, because the superior court should have rendered a final .judgment in the ease, as the error of the magistrate in overruling .the demurrer to the summons was an error of law which must finally govern the case. It was contended that the summons did not comply with the Civil Code, §4116, in that it did not have attached to it a sufficient notice as to the character of the plaintiff’s demand; •.and that it appearing, from the copy of the cause of action, attached to the summons, that the heifer belonged to “defendant,” that the “defendant did not cause the damage by any negligence on his part,” and that “defendant” is damaged to the amount sued for, no cause of action was shown; because the defendant had the right to kill its own heifer, either by negligence or otherwise.</p>

<p>Appeal, from Douglas superior court — Judge Edwards. April 1, 1907.</p>

<p>Complaint, from city court of Sandersville — Judge Burch.. March 18, 1907.</p>

<p>Levy and claim, from cityr court of Sylvester — Judge Park. March 8, 1907.</p>

<p>Action for breach of warranty, from city court of Dublin— Judge Burch. May 6, 1907.</p>

<p>1. One can not, by causing a promissory note, for which he himself is to furnish the consideration, to be made payable to another person, and by having the latter to indorse it, become that bona fide transferee for value to whom the law accords rights superior to those of ordinary promisees.</p> <p>2. Where an agreement has been made to take a policy of life-insurance, the tender of a policy substantially different from that ordered, unless it is accepted, will not furnish a consideration for a note, executed in advance, for the premium on the policy which was to be taken under the agreement.</p> <p>3. An application for insurance may be oral. If a son makes oral application for a policy of a certain kind, to be issued on the life of his father, and the agent afterwards gets the father, without the knowledge of the son, to sign a written application in which a policy of a substantially different nature is described, a tender of a policy of the kind described in the written application will not be a compliance with the contract made with the son, and he may refuse to accept the policy.</p> <p>4. No material error appears in the record.</p>

<p>Certiorari, from Emanuel superior court.' — 'Judge Rawlings.</p>

<p>Complaint, from city court of Atlanta — Judge Beid: May 18, 1907.</p>

<p>Certiorari, from Bibb superior court — Judge Eelton. June 10, 1907.</p>

Garnishment, from city court of Americus — Judge Crisp. April 2, 1907.

<p>' Complaint, from city court of Atlanta — Judge Eeid. April 1, 1907.</p>

<p>1. In a suit brought by the bona fide holder of a draft against the acceptor, a demurrer to the declaration, on the ground that the specific date of the transfer is nowhere set forth, was properly overruled, where it. appeared, from the declaration, that the transfer was made before maturity, and that the action was not barred by the statute of limitations.</p> <p>(a) Such a declaration is not demurrable on the ground that it does not-allege that the drawer was either a corporation or a partnership. Complaints of defects in the transfer and assignment of the acceptances, could only be presented by an appropriate plea.</p> <p>2. It is error to strike, on oral motion or general demurrer, a plea which,, though defective in several paragraphs, contains one paragraph which properly pi’esents a substantial issue.</p>

<p>Certiorari, from Eandolph superior court — Judge Worrill. May term, 1907.</p> <p>Beard sued Hammock in a justice’s court, on tbe following account: “To damage for breach of contract which was substantially as follows, $68.80. During the year 1906 there was a negro, Sam Cox by name, working for W. J. Beard. During the year 1906 B. G. Hammock, ‘desiring to work the said negro in 1907, took him from the fields of W. J. Beard to Coleman, and there contracted with him. Beturning, the said B. G. Hammock did tell the said W. J. Beard that he had contracted with the negro to work for him during the year 1907, and that if he, the said W. J. Beard, would.pay the said negro for all the work which he did for him during the balance of the year 1906, he, B. G. Hammock, would, on or before January 1, 1907, pay to the said W. J. Beard the sum of $68.80, which amount the said negro then, owed to said W. J. Beard, and which amount has never been paid to W. J. Beard, but is now owing to him, as the said W. J. Beard has kept his part of the contract, although he could have made his money, or a good part thereof, by holding up a part of the negro’s wages, but, relying on the promise of B. G. Hammock, he did pay to the negro for all work which he did.”</p> <p>Hammock pleaded the statute of frauds. The contract was not in writing. According to Beard’s testimony, the transaction took place as set out in the statement of the cause of action above. Hammock testified that he agreed that if Beard would work the negro till the end of the year and let him have only necessary living expenses, and would credit the remainder of his wages on the $63.80, he would pay the balance which might then be due. The jury found for the plaintiff. The defendant brought certiorari;, the judge of the superior court sustained it and rendered final judgment in favor of the defendant. To this judgment Beard excepts.</p>

<p>Accusation of larceny from house, from city court of Sylvester —Judge Park. June 13, 1907.</p>

<p>Certiorari, from Bibb superior court — Judge Felton. January 10, 1907.</p>

<p>Complaint, from Baldwin superior court — Judge Lewis. October 15, 1906.</p> <p>On May 13, 1904, Robson contracted with Brooke to buy of him 3,000 bushels of No. 2 mixed com at seventy-three cents per bushel. On May 19, before the com had been shipped, Robson wrote to Brooke, countermanding the order. On May 21 Brooke wrote, refusing to cancel the contract and asking for shipping directions. On May 26 Robson, by letter, reiterated that he would not accept the corn. On May 29 Brooke wrote: “Beg to advise that it took two to make this contract and it takes two to unmake it. We respectfully insist that you let us have shipping instruction on same at once.” Again, on May 31, June 1, and June 3, Brooke requested shipping instructions, but Robson made no answer. On June 18 Brooke wrote: “Shall we close corn for your .account, or shall we carry longer for you?” And on June 25 he telegraphed: “Am offered sixty-six half basis Milledgeville three ■cars com. Will sell for your account unless have shipping instructions by two o’clock to-day;” and to neither of these Robson replied. Brooke sold the corn on June -25, for sixty-six and one-'half cents per bushel, immediately notifying Eobson to that effect. There was evidence that on and for several days after the date Eobson gave notice of the countermand, the market price ranged at and above the purchase-price of seventy-three cents per bushel. The jury found for the defendant. The plaintiff made a motion for a new trial, on the general grounds, and to the overruling thereof brings error.</p>

<p>1. For one party to be affected by another’s drunkenness he must either have contributed to it or have had knowledge of it. That one indorsed an obligation while in a drunken condition will not affect the rights of a payee who had no knowledge of such drunkenness and no hand in. causing it. The payee must have been “cognizant of the fact.”</p> <p>(а) There was no evidence that the payee acted through an agent in obtaining the note.</p> <p>(б) In the absence of evidence that the plaintiff (the holder of a promissory note indorsed by one of the defendants) either caused or knew of the drunken condition of a defendant at the time he indorsed the note in question, testimony that such indorser was in fact intoxicated when he signed his name as indorser presented no defense to an action brought against him to recover on the note.</p> <p>2. Under the terms of the Civil Code, §4961, an averment which is distinctly and plainly made in a distinct paragraph of the plaintiff’s petition shall be taken as prima facie true, unless it is denied by the defendant’s answer or it is stated therein that, because of the want of sufficient information, he can neither admit nor deny such averment.</p> <p>3. Inasmuch as no other verdict than that directed could properly have been rendered by the jury, there was no error in overruling the motion for new trial.</p>

<p>Action for damages, from city court of Sylvania — Judge BoyJrin. June 4, 1907.</p>

<p>1. A general demurrer to a declaration in attachment, on the ground that no cause of action is set forth, is not adequate to raise the question that the attachment is defective, in that the defendant is shown to be a nonresident corporation and there is no allegation that it transacts business in this State. If the point is good at all, it should be raised by some form of special appearance, or motion to dismiss the attachment, and not by a general demurrer to the declaration.</p> <p>2. Even if a declaration be subject to demurrer which is overruled, the plaintiff may render the error harmless by an amendment sufficient to cure the objection.</p> <p>.3. The execution of an instrument may, when statute does not prescribe some special mode of proof, be shown by circumstantial as well as by direct evidence.</p> <p>4. If any error was committed upon the trial, it was of an immaterial and harmless nature.</p>

<p>Distraint, from city court of Elberton — Judge Proffitt. July .3, 1907.</p>

<p>1. Generally it is not murder, but manslaughter, to kill an officer or another person to prevent an illegal arrest. Consequently, shooting an officer without killing him, if done to prevent an illegal arrest, is prima facie not an - assault with intent to murder, but the statutory crime of shooting at another, as defined in the Penal Code, § 113, or assault and battery. Whether the person whose rights are thus invaded is guilty of any offense depends upon the facts of the particular case. If the force of resistance is not in excess of the force of invasion, and is used solely for the purpose of prevention, no offense is committed.</p> <p>2. The fact that a city charter contains no provision for the issuance of warrants for violations of municipal ordinances is not relevant or material in determining the legality of an arrest for such violation; and it was error to admit such testimony, and to instruct the jury that this omission could be considered by them in determining the legality of .such arrest. The fact that the legislature has not authorized a municipality to issue warrants for offenders against city ordinances affords no excuse for illegally depriving a citizen of his right of personal liberty. The legality of an arrest in such cases is to be determined by the provisions of the Penal Code, §896, which “is applicable alike to State and municipal arresting officers.”</p> <p>3. Where the defense set up was lawful resistance to an illegal arrest, the law of self-defense was not alone applicable. The court should have instructed the jury as to the right of the defendant to resist an attempt to arrest him illegally, and not merely his right to defend himself against an attempt, by violence or surprise, to commit a felony on his person.</p> <p>4. On a trial for assault with intent to murder, an instruction that left it optional with the jury to convict the defendant of that offense, or of shooting at another not in self-defense, although they might believe that if death had resulted the offense would have been manslaughter, was erroneous. If death had resulted and the offense would have been manslaughter, death not resulting, the offense would have been shooting at another not in self-defense, or assault and battery.</p>

<p>Appeal, from Bibb superior court — Judge Felton. February 25, 1907.</p>

<p>Accusation of gaming, from city court of Griffin — Judge Hammond. September 16, 1907.</p>

<p>1. The rule of court providing that no attorney or other officer of court-shall be taken as bail or security in any proceeding therein is directory merely, and, if violated, does not render the obligation either void or voidable. The purpose of the rule is sufficiently accomplished by punishing the attorney or other officer of court for contempt and, in the discretion of the court, requiring the party to give other bail or security,, without holding the bond a nullity.</p> <p>2. The judgment of the superior court dismissing the certiorari proceedings, because the surety on the certiorari bond was an attorney of the-court, was erroneous.</p>

<p>Action for damages, from city court of Americus — Judge Crisp. .May 13, 1907.</p>

<p>Certiorari, from Effingham superior court — Judge Seabrook.. May 16, 1907.</p> <p>Simpkins & Company sued Hester in a justice’s court. • A judgment was rendered against him, and he appealed to a jury in that-court. Pending the appeal the plaintiffs dismissed their suit, and the dismissal was duly entered on the docket. At a subsequent-term of the court a justice of an adjoining district presided, and the defendant appeared before him and moved that the case be-reinstated and tried. 'He-granted the motion to reinstate, on the-ground that after a plea of recoupment had been filed the plaintiffs had no right tó dismiss their suit. The case was then tried before him and a verdict and judgment were rendered against the plaintiffs, on the plea of recoupment, for $100. These proceedings took place in the absence of the plaintiffs and their counsel,, and without their consent and without notice to them, and, in the-plaintiffs’ petition for certiorari, are alleged to be void because the justice before whom the case was tried was without jurisdiction to act therein. The justice, in his answer to the certiorari,, stated that the justice of the district in which the case was tried, had asked him to hold court in a case in which that justice was disqualified, but that it was not this case. The judge of the- superior court dismissed the certiorari, and the plaintiffs excepted.</p>

<p>Action for damages, from city court of Atlanta- — Judge Eeid. January 10, 1907.</p> <p>For the negligent homicide of her husband, Mrs. Eollestone .sued Cassirer & Company, on a petition which, omitting formal parts, is as follows: “That said Cassirer & Company were engaged, on October 25, 1906, and for several years prior thereto, in the saloon business at No. 97 Whitehall street, city of Atlanta, said county. That said place conducted by defendants was and is a public barroom openly run to furnish alcoholic drinks and other goods intoxicating contained therein to the general public. That said place was a public house and the public were invited to go and purchase the goods furnished by defendants, and that said place was run for the personal profit of and benefit to said defendants. That said place was conducted under a license granted to said defendants by the city of Atlanta, the State of Georgia, and the United States of America, to run a barroom for public patronage at said place. That on October 25, 1906, petitioner’s husband, H. A. Rollestone, went into the place of business, as •aforesaid, of defendants for the purpose of buying whisky and •other merchandise sold by defendants. That at said time petitioner’s husband was greatly under the influence of intoxicants, and that his condition was known to defendants and their agents in charge of said business. That he was intoxicated to that extent that he was unable to take care of himself, and his reason, judgment, discretion, and ability to know danger was entirely •overthrown on account of said intoxicated condition, and that defendants and their agents in charge of said business were aware •of said facts, and were put on notice of his said condition. That •defendants had placed in their said place of business, several weeks prior to the time aforesaid, a barroom counter so set in said place of business loosely and without being fastened to the floor or in any way to protect its falling over. That said counter was •constructed of heavy wood, and was so construed that practically the entire weight of the same was on the outside of said counter, and that said counter was constructed so that the outside of it hung over from its center of gravity; the other side of said counter was hollow and had no weight of any kind to counteract, or weight against the outside and overhanging part of said counter. 'That said counter was constructed so that it would easily fall over. 'That in height it was about four feet, and its principal weight was •at or about the top of said counter. That while petitioner was in ;said place, on the day aforesaid he was near said counter, and in moving about on the floor of defendants’ place he slipped or .stumbled, and seized hold of said counter to steady himself or to Taise himself up, and said counter with all of its terrible crushing weight fell over upon petitioner’s husband and mashed and crushed him, and broke his leg and shocked his nervous system. 'That on November 30, 1906, petitioner’s husband died on account of the injuries received, as aforesaid, and said death was caused and produced by the injuries aforesaid, and said injuries received in defendants’ place of business were the proximate cause of the death of petitioner’s husband.</p> <p>“That petitioner is the widow of H. A. Rollestone, who was killed as aforesaid. That her said husband was, at the time of his death, 54 years of age, and was earning $1,200.00 per year. That he was in the employ of Keely Company at said annual salary, and had been employed at said place for many jrears, and was one of their most • trusted, capable, and efficient employees. That petitioner’s husband had been accustomed for many years-at long intervals to drink to excess. That he would drink heavily to drunkness for a short period and would then desist and resume his business duties, which he discharged without exception, and to the full satisfaction of his employers until the time of his next periodical drunkness. That this custom of petitioner’s husband was well known to his employers and to the agents in charge of said place, of business. That while petitioner’s husband was drinking to excess, as aforesaid, he was incapable of taking care of himself in any way, and was incapable at the time of his injuries as aforesaid, and said fact was known to defendants and their agents in charge of said business. That said counter which fell upon petitioner’s husband was a dangerous contrivance to be placed in said place of business. That it is the custom of the patrons of defendants, and the patrons of all similar places constructed as was their place of business, to take hold of counters and to steady themselves by said counters, and in stumbling and falling in said places of business to use said counters in assisting themselves in restoring their equilibrium, and in putting themselves steady on their feet. That there was nothing about said counter to indicate that it was not fastened in a firm, safe manner. That the counters in defendants’ place of business were all fastened firmly to the floor by means of large strips of iron screwed to the floor of said place of business. That there was nothing about the appearance or position of said counter to indicate or put any one on notice that said counter was not firmly fastened so as to prevent its falling over. That it is customary in all places of business, constructed like defendants’ place was, that had counters in it constructed as was this counter that fell upon petitioner’s husband, to have the same firmly and securely bolted, screwed, or fastened so as to prevent its falling over. That petitioner’s husband was a customer of defendants and was in their place of business as a customer, and they owed him the high and sacred duty to protect him from injury, and see that no injury came to him by reason of any acts or omissions of theirs. That it was negligence in the defendants to have said heavy, dangerous counter in their place of business without the same being securely bolted, screwed, or fastened so as to prevent it falling over. That it was negligence in defendants not to warn petitioner’s husband of the condition of said counter and the danger of going near or touching the same. That it was negligence on the part of the ■defendants and their agents to permit petitioner’s husband to go near said counter or touch the same or to use the same in steadying himself or in pulling himself up on his feet in falling or ■about to fall. That said counter was a dangerous and threatening trap, and it was negligence on' the part of defendants to have ■said trap in their place of business.”</p> <p>Upon a general demurrer filed by the defendant, the court rendered the following judgment, to which the paintiif excepts, to wit: “I do not think the defendants owed the duty alleged, nor, if they did, that the wrong complained of was the proximate result of the negligence charged; and the general demurrer is therefore sustained and the case dismissed.”</p>

<p>Garnishment, from city court of Savannah — Judge Norwood. July 7, 1906.</p>

<p>Attachment, from city court of Macon — Judge Hodges. February 23, 1907.</p>

<p>Appeal, from Habersham superior court — Judge Kimsey. January 30, 1907.</p>

<p>Complaint, from city court of Baxley — Judge Thomas. April 17, 1907.</p>

<p>Practice in the Court of Appeals.</p>

<p>Action for damages, from city court of Dublin — Judge Burch. May 13, 1907.</p>

<p>Complaint, from city court of La Grange — Judge Harwell. May 1, 1907.</p>

<p>1. The written notice of claim for attorney’s fees required by the proviso to the act of 1900 (page 53) is itself the best evidence of its contents. In the absence of other proof of the service of such notice upon the defendant, the proper foundation for the introduction of secondary evidence must be laid, before parol evidence as to the service, nature, or contents of such notice, is admissible. It is error to allow parol evidence as to the contents of such notice, or to refuse, upon proper motion, to exclude such parol evidence, where the defendant has not been served with a notice to produce, nor any other attempt been made to show the loss or destruction of the original notice.</p> <p>2. An obligation to pay attorney’s fees,' embodied in a mortgage, is collectible in the same manner as if it were contained in a note or other evidence of indebtedness. The return day prior to which the debt must be paid is the return day of the court to which the foreclosure of the mortgage is returnable.</p> <p>3. The verdict was contrary to evidence, and the court erred in refusing a new trial.</p>

<p>'The disconnected instructions taken from the charge, when considered with the charge as a whole, contain no material error. The evidence was in conflict, and we can not say the trial judge abused his discretion in refusing a new trial.</p>

<p>Complaint, from city court of Sylvester — Judge Park. May •38, 1907.</p>

<p>1. In a claim case the tax digest, showing the returns of the defendant in execution before the pendency of litigation, is admissible in evidence as an admission of the defendant. It is competent also to show that the claimant did not make any return of property for taxation during the year in which the judgment was rendered.</p> <p>2. It is error to instruct the jury in a claim case that property returned in the name of a taxpayer is presumptively his property. The return is a circumstance of more or less probative value, to be considered by the jury within limitation above indicated; but the declaration of the party making the returns raises no presumption of title.</p> <p>3. The court gave the following charge requested by the plaintiff in fi. fa.: “If the jury believe, from the evidence, that the twenty-five acres of cotton, one half acre of potatoes, field peas and groundpeas, thirty acres of hay, eighteen hundred pounds of seed cotton gathered, belonged to J. S. McLendon and other parties jointly, then he could not sustain his claim, and it would.be your duty to find that much of said property subject to the plaintiff’s fi. fa.” Held, that this instruction was erroneous. (1) It did not state a correct principle of law. (2) It deprived the claimant of the benefit of his contention that he and his cropper made the said agricultural products and that they were undivided at the date of the levy.</p> <p>4. The verdict is not supported by any' evidence,1 and is set aside as contrary to law.</p>

<p>Certiorari, from Ben Hill superior court — Judge Whipple. May 30, 1907.</p> <p>The Farmers Supply Company brought suit in the city court of Fitzgerald against the Fitzgerald Cotton Oil Company, for a breach of the following contract, which they alleged they made through their agent, Harris: .</p> <p>“Fitzgerald, Ga., Dec. 9th, 1905. Mr. J. H. Harris, City. Dear Sir: — We offer you one thousand sacks of Upland meal at $22.00 per ton, one thousand sacks of hulls at $8.00 per ton, same to be hauled out as early as convenient. Yours truly, Fitzgerald Cotton Oil Company by L. W. Meakin, secretary and treasurer.”</p> <p>“Fitzgerald Cotton Oil Company, City.</p> <p>“Gentlemen: I accept the above offer. Enclosed find check for $100.00 on above. Yours truly, J. H. Harris.”</p> <p>The breach alleged was the failure to deliver on demand 831 sacks of meal. There was no dispute about the making of the contract in the terms set out above. During the month of December the defendant delivered some meal and hulls as called for by the plaintiff. On the 30th of the month the defendant wrote the following letter to the plaintiff: “The price of Prime Upland C/S Meal has advanced to $24.00 per ton F. O. B. Mill. This price subject to withdrawal-without notice. We will have to cancel our trade with you and return unused portion of funds left with us unless you immediately haul out the meal sold. It is beyond all oil mill terms and agreements for cash sales to be left on storage without special agreement to that effect and without funds to cover the amount of purchase. We will consider the sale null and void unless full amount is placed in our hands to cover purchase unless the goods are hauled out at once.” The plaintiff received this letter late in the afternoon on the day it was written, which was Sat- • urday. On the following Monday morning, the first of January, the plaintiff’s manager went to the office of the defendant with a blank check in his hand to pay for the rest of the meal and hulls, and to haul the same out. One Huggins was in charge of the office. Plaintiff’s manager told Huggins that he had come for the balance of the meal and hulls, and asked him for 500 sacks. Huggins refused to let him have this amount, and finally sent him away, with ten sacks, or one thousand pounds. When Huggins refused to let him have more than ten sacks, plaintiff’s manager did not offer to pay for the remainder of the meal and hulls. During the months of January and February hulls were delivered by defendant and paid for by plaintiff at the contract price, although plaintiff could have purchased the hulls in the open market at a slightly lower figure; the defendant also delivered and accepted payment for meal during these months at the contract price of $22, although the market price had advanced from $24 to $28 per ton. On March 10, 1906, the plaintiff wrote to the defendant as follows: “We now make final demand on you for the balance of the cottonseed meal due us on this contract to be delivered at once, not later than the 15th inst.” It also appears from the evidence in the record that plaintiff had made- several previous demands for meal, 'which had been refused by the defendant. Upon the failure-and refusal of the defendant to comply with the demand contained in the letter of March 10, the plaintiff went into the open market and bought the meal for $28 per ton; and then brought suit for the difference between the market price of $28 per ton at that time and the contract price of $22 per ton. At the trial in the city court, the jury returned a verdict for the plaintiff; and the defendant sued out certiorari to the superior court. The error assigned in this-court is the order of the judge of the superior court overruling the certiorari. '</p>

<p>Action for damages, from city court of Floyd county — Judge Hamilton. June 13, 1907.</p>

<p>Action for damages, from city court of Floyd county — -Judge Hamilton. June 12, 1907.</p>

<p>Complaint, from city court of Waynesboro — Judge Johnston. June 6, 1907.</p>

<p>Certiorari, from Fulton superior court — Judge Pendleton. July ■9, 1907.</p>

<p>Action for damages, from city court'of .Swainsboro- — -Judge Mitchell. July 15, 1907.</p>

<p>1. The act of 1897 (Acts 1897, p. 82-3) does not restrict or abl’idge the right of the defendant, in an action brought by the transferee of a note, to plead that the plaintiff is not an innocent purchaser, but purchased the note with full knowledge of all the equities between the original parties; nor does it prevent him from pleading and proving that the holder never purchased it, provided the defendant has a good defense against its payment.</p> <p>2. Nor does this statute require a more definite description of the article or thing sold (the purchase-price of which is the consideration of a note given for a patented article or a patent right) than such an explicit statement that the thing sold is patented, or is a patent right, as will put a prospective purchaser of the paper on notice and at the same time enable him, by the exercise of ordinary care and diligence, to obtain, if he desires, further information as to the nature and character of such article.</p> <p>3. That- one is the purchaser of a note which evidences indebtedness for the purchase-price of a patent right, before maturity and for value, does not affect the operation of the act of 1897. The policy of the State recognizes no innocent purchasers if the note is properly identified as having been given for a patent right, or any interest in a patent.</p>

<p>1. Negligent- conduct of the defendant, if a part of the res gestee of the transaction in which the plaintiff is injured, though not the proximate cause thereof, may be alleged and proved in connection with the negligent acts of the defendant through which the injury did directly occur.</p> <p>2. If a railway train approaches a public crossing- without giving signals and without cheeking its speed in accordance with the statute, the company may be held liable for an injury to a mule which, while being led across the track at the crossing, becomes frightened „at the train, balks, jerks loose, and is run over a few feet below the crossing.</p> <p>3. It not appearing that -the plaintiff’s attempt to take the mule across the track ahead of the train was, under the circumstances, as a matter of law, so negligent as to amount to a failure to exercise ordinary care, the court did not err in overruling the demurrer to the petition.</p>

<p>1. Process bearing teste in the name of the judge, though bis official title-is not also given, is not void. A general appearance waives not only-all defects in process, but even absence of process itself.</p> <p>2. A verdict is not void because it is not written on tlie original petition.</p> <p>3. “At the hearing of a certiorari in the superior court nothing can be-considered but the petition and answer.” The judge can not consideraliunde affidavits.</p> <p>4. The evidence, though weak and unsatisfactory, was legally sufficient to authorize the verdict rendered.</p>

<p>Motion to award damages for delay.</p>

<p>1. Agency to sell does not necessarily carry with it agency and authority to collect.</p> <p>2. Proof of agency, which depends upon evidence of the relative position and relationship of the parties, extends no further than to the authority necessary to do the acts shown. Authority to do an act as an agent will not be implied from the doing by such agent of a totally distinct and different act in behalf of his principal.</p> <p>3. Where a judgment confirming a composition in bankruptcy is relied upon to discharge an admitted indebtedness, and it appears that the name of the creditor is not in the schedule of the bankrupt, the burden is upon the debtor aiErmatively to prove that the creditor had notice or actual knowledge of the proceedings in bankruptcy prior to the judgment of discharge.</p> <p>4. Notice to an agent is insufficient, unless it be made to appear that the scope of his authority and duty was such as necessarily included such act, and therefore bound the principal.</p>

<p>A justice of the peace has no power to render judgment by default, without testimony, against the defendant in an action for damages, although the cause of action stated in the summons is verified by the plaintiff's affidavit, and although the defendant, after due service, does not appear or plead.</p>

<p>1. Under the evidence in this ease, the plaintiff could not recover on the contract, because the testimony did not show that such a contract had been made for the employment of the plaintiff as would authorize a recovery thereupon. It appeared, from the plaintiff’s' own testimony, that no definite price was fixed for his services, and that there was no agreement between the parties as to the value of his services, coupled with a mutual understanding, or an obligation (either by acquiescence or otherwise) on the part of the defendants, that such price should be paid by them.</p> <p>2. It is not error to grant a nonsuit, where it appears from the evidence, without contradiction, that the contract of employment on which the plaintiff’s right of action depended is for a period exceeding one year and is not in writing, and there is no evidence which brings, the case within the exception provided by the Civil Code, § 2694.</p> <p>3. The part performance which will take a contract out of the operation of the statute of frauds is such as is, within the terms of the agreement, an essential part of the contract, and, as such, is essential to the performance of the contract. The fact that the person who has ■contracted to -serve another one year, to commence at a future day, enters upon the performance of his contract does not take the ease out ■of the statute. The servant may quit at any time and recover the value of his services on a quantum meruit, and the master may discharge the servant at any time without incurring liability therefor.</p> <p>4. A contract for permanent employment continues indefinitely, and is terminable by either of the parties at any time.</p>

<p>Complaint, from city court of Atlanta — Judge Calhoun. July 6, 1907.</p>

<p>1. There was no error in sustaining the demurrer. The discharge in. bankruptcy dissolved the copartnership, and the allegations of the petition did not set up an obligation of all the partners by name, each for himself assuming liability. It can not be assumed from the allegations of the petition that each member of the former firm entered into a new agreement, and it would be without the scope of a new partnei'ship (even if it can be assumed from the allegations of the petition that a new partnership was formed) to bind such partnership for the payment of debts of a former partnership which had been dissolved by operation of law.</p> <p>2. The provisions of rules six and thirty-two of the rules of this court are applicable no less to written argument than to oral. Personal remarks-discourteous to opposing counsel are strictly prohibited, and violations of this rule will not be permitted.</p>

Action for damages, from city court of Newnan- — -Judge Freeman. March 30, 1907. Powell, J., being disqualified, Judge Felton, of the Macon circuit, was designated to preside. • O. W. Floyd sued the Central of Georgia Railway Company for damages on account of injuries sustained in stepping from a depot platform.

<p>Complaint, from city court of Sylvester — 'Judge Park. November 27, 1906.</p>

<p>. Action for damages, from city court of Hartwell — Judge Hodges. March 23, 1907.</p>

<p>1. The failure to observe the statutory requirements as to cheeking the speed of trains and ringing the bell at street crossings is not negligence-as to a person on the track of a railroad who is not at the crossing.</p> <p>2. The petition, failing to set out any specific acts of negligence which would authorize a recovery, should, on proper timely demurrer, have been dismissed.</p>

<p>Appeal, from Walton superior court — Judge Brand. May .13, 1907.</p>

<p>Certiorari, from Fulton superior court — Judge Pendleton. July 11, 1907.</p>

<p>Action for damages, from city court of Polk county — Judge Irwin. August 8, 1907.</p>

Attachment from city court of Americus — -Judge Crisp. August 7, 1907. Taylor sued Felder a,s the surviving partner of the firm of W. A. Mathews & Compaq, upon a note executed 'by Mathews, the deceased partner, in the firm name, to the Piedmont Loan & Banking Company and duly transferred to the plaintiff. The jury returned a verdict for the defendant.

<p>Complaint, from city court of Tifton — -Judge Eve. August 3, 1907.</p>

<p>Certiorari, from Fulton superior court — Judge Ellis. September 11, 1907. •</p>

<p>Under tlie evidence submitted, nonsuit was proper.</p>

<p>Appeal, from Berrien superior court — Judge Mitchell. September 16, 1907.</p>

<p>Complaint, from city court of Abbeville — Judge Nicholson. August 23, 1907.</p> <p>The suit was for principal, interest, and attorney’s fees, on notes containing a promise to pay “all costs of collection, including ten per cent, as attorney’s fees, if collected by law or through an attorney at law.” The suit was filed July 17, 1907, and was returnable to the August quarterly term of the court. The petition alleged, that “ten days before the filing of this suit, plaintiff served [the defendant] with a written notice that this suit would be filed upon said evidences of indebtedness, returnable to the February term, 1907, of this court, and that plaintiff would demand the attorney’s fees provided in said notes.” No defense was filed, and no evidence was introduced, and the court rendered judgment for principal, interest, and attorney’s fees as provided for in the notes. The defendant excepted to the judgment for attorney’s fees, contending that the petition did not show compliance with the act of 1900 (Ga; Laws of 1900, p. 53), as to notice, it not being alleged that notice was given of intention to bring suit to the August term, 1907.</p>

<p>In a prosecution for trespass by cutting wood or 'timber, under the Penal Code, §219, par. 1, wilfulness is an ingredient of the crime. The word “wilful,” as used in this section, means “intentionally, malevolently, with a bad purpose, an evil purpose, without ground for believing the act to be lawful.”</p>

<p>No error of law was committed, and the verdict is fully supported by the evidence.</p>

<p>1. An indictment charging a burglary to have been committed in an outhouse, contiguous to or within the curtilage, need not describe the same as having been committed in the dwelling-house, or that the outhouse is a part of the dwelling-house. The words, “All outhouses contiguous to or within the curtilage or protection of the mansion or dwelling-house shall be considered as parts of the same,” as well as the words, “A hired room or apartment in a public tavei’n, inn, or boarding-house shall be considered as the dwelling-house of the person occupying or hiring the same,” being included in the statute, are sufficiently descriptive.</p> <p>'2. An indictment for burglary may charge a larceny after the breaking and entering, as illustrative of the intent with which the burglary was committed. In such cases the defendant may be convicted of the larceny, though not gui-lty of the burglary.</p> <p>3. A barn and corn-crib in which corn is stored is not the subject-matter of burglary, unless it be proved that it is within the curtilage of a dwelling-house, or unless it is alleged and proved that it is a place of business. A barn enclosed by a fence disconnected with the dwelling, and no portion of which is applied to the purposes of a dwelling-house, is not a dwelling-house within the terms of the statute against burglary.</p>

<p>1. In indictments for larceny “the description [of the stolen property] should be simply such as, in connection with the other allegations, will affirmatively show the defendant to be guilty, will reasonably inform him of the instance meant, and put him in a position'to make the needful preparations to meet the charge.”</p> <p>2. Where, by an erroneous conception of court and counsel, a misdemeanor ease is tried as if it were a felony, but the error is discovered before sentence, so that no harm in this respect results to the defendant, the error is prima facie harmless to the defendant.</p> <p>3. As to personal property the seizure, and not the official entry, constitutes the levy. !</p> <p>4. In trials for simple larceny it must appear that the stolen property is of some value either generally or specially to the prosecutor. Direct proof of value, however, is not indispensable; it may be" shown inferentially.</p> <p>5. A person may steal his own property from an officer who has seized it under levy, and thereby be guilty of larceny.</p>

<p>1. The fact that one may commit forgery in accomplishing a larceny is no defense against the charge of larceny. The forgery may be the means employed for converting a stolen paper to the use of the thief.</p> <p>2. A receipt representing a bale of cotton deposited in a warehouse and describing it by marks or by number, commonly called a warehouse receipt, is a subject-matter of larceny.</p> <p>3. The fact that the owner of stolen property suffered no loss, or that the stolen propei'ty was recovered, is immaterial on the- subject of the guilt or innocence of one accused of theft.</p> <p>4. The instructions contained in the charge of the court which are exeepred to are without error.</p> <p>3. The evidence fully authorized the verdict of guilty, and there was no error in overruling the motion for new trial.</p>

<p>Accusation of keeping open tippling-house on Sunday, from city court of Bichmond county — Judge Eve. October 4, 1907.</p>

<p>The evidence is wholly insufficient to support the verdict, and the trial court erred in refusing to grant a new trial.</p>

<p>Accusation of stabbing, from city court of Griffin — Judge Hamjmond. September 24, 1907.</p>

<p>Accusation of unlawful sale of liquor, from city court of Way-cross — Judge Myers. October 17, 1907.</p>

<p>Indictment for shooting at another, from Washington superior ■court — Judge Eawlings. July 12, 1907.</p>

<p>1. The evidence authorized the verdict, and no error is assigned which warrants the reversal of the judgment refusing a new,trial.</p> <p>2. The fact of indebtedness, as against one accused of a violation of the, labor-contract act of 1903 (Acts 1903, p. 90), is of itself wholly insufficient to authorize conviction; it is merely persuasive evidence of intent to defraud, when considered in connection with evidence of failure on the part of the defendant to perform his contract or repay the money advanced. But, by the terms of that statute, the law raises, from proof of certain facts, the presumption of an intent to defraud, and the burden is thus cast upon the defendant to rebut and remove this presumption.</p> <p>3. Eor the repayment of money advanced ón a contract of labor to be effectual as a defense, the advancement must be repaid on or before the first-day of the term of the service of labor contracted for, if the defendant, does not enter upon his term of service.-</p> <p>4. Statements of a defendant in his own behalf, made anterior to the trial,, are not admissible as evidence in his favor.</p>

<p>Indictment for assault with intent to rape, from Walton superior court. October 33, 1907.</p>

<p>The presumption arising from the recent possession of goods alleged to have' been stolen being fully rebutted by the uncontradicted testimony of the-owner of the missing propei’ty, that he authorized the possession of the defendant, and there being no proof of the corpus delicti, the refusal of a new trial was error. The decision is controlled by Williams v. State, 55 Ga. 385.</p>

<p>Action for damages, from city court of Sparta — Judge Little. October 33, 1906.</p>

<p>1. An indictment charging a violation of the act of 1903 (Acts 1903, p. 90), which fails to allege a contract of employment, charges no offense against the laws of this State, and is void.</p> <p>(a) An executory contract without consideration is a nudum pactum. The law will not enforce a contract which is without consideration.</p> <p>■(b) A promise of another is consideration for a promise, but a contract is not created by a promise on the part of one to labor without any mutual concurrent obligation on the part of the other to pay for said services.</p> <p>•(c) An indictment which omits to charge that the failure of the defendant to perform his contract of labor, or to repay advances made to him, was without good and sufficient, cause is fatally defective.</p> <p>2. That the indictment .is a nullity is a good defense to a proceeding to forfeit a criminal bond requiring the presence of the defendant to answer such indictment. Consequently it was error to direct a verdict in favor of the plaintiff in scire facias, where it appeared that the obligation was based upon an indictment fatally defective. The case is not altered by reason of the fact that the recognizance was entered into after indictment, instead of prior to the action by the grand jury.</p> <p>.'3. The omission of the name of the county in which the court -to which the principal of the bond is required to answer is held does not avoid the obligation, and the doubt or ambiguity, if any, is subject to explanation by parol evidence.</p> <p>4. The recital in the scire facias that the defendant has been indicted for a misdemeanor is sufficient.</p> <p>5. An affirmance of the judgment of the lower court will not result from the omission to cause to have transmitted a portion of the record material to a clear understanding of the errors complained of, if there be such an assignment of error as enables this court clearly to understand the errors complained of and to intelligently pass upon the same, either by reference to the bill of exceptions alone or to the bill of exceptions and the record together. If there be a plain assignment of error, duly certified by the judge, and any portion of the record material to a clear understanding of the error be not specified and transmitted, it would be the duty of this court, of its own motion, to order the clerk of the trial court to transmit such material portion.</p>

<p>1. There was no error in sustaining the certiorari from the judgment of the justice of the peace awarding the possession of certain rollers to-the affiant. The evidence fully showed that the possession of the mechanic was the possession of the plaintiff in the possessory warrant, and that the defendant had wrongfully and fraudulently obtained his possession of the rollers in question.</p> <p>2. The judgment for costs against the'petitioner in certiorari made a final disposition of the case, and to make such final disposition was properly within the discretion of the judge of the superior court.</p>

Certiorari, from Emanuel superior court — Judge BawlingsApril 25, 1907. C. A. Howell purchased certain machinery from Avery & McMillan and gave four no tés for the purchase-money. In these notes Avery & McMillan reserved the title to the property in question until the purchase-price should be fully paid; and the notes with the reservation of title were recorded in Johnson county in 1900, and in Emanuel county on June 9, 1901.

<p>Complaint, from city court of Atlanta- — Judge Eeid. March 28, 1907.</p> <p>Wiseberg brought suit against the Novelty Hat Manufacturing Company upon a contract which provided that the said Wise-berg “agrees to work in the employ of the Novelty Hat Manufacturing Company, both in the house and on the road, as traveling. salesman, for which he is to receive $100 per month, provided his sales'average $25,000 per annum; and it is also agreed that Wise-berg is to receive a' commission of five-per cent, on all sales over and above that amount.” The contract was to continue one year from November 1, 1903, each party reserving the right to terminate the contract April 30, 1904; and the contract was terminated April 30, 1904, and Wiseberg brought this suit to recover the remainder of his salary, computed at the rate of $100 per month. The defendant admitted the execution of the contract, but insisted that the plaintiff was not entitled to $100 per month, unless, his sales averaged the amount of $25,000 per annum, and that they did not average that much. The defendant filed a plea of set-off, alleging that the plaintiff had been overpaid, and asked for a judgment against the plaintiff for the balance. The case was submitted to the judge without the intervention of a jury. On the first trial of the case the court struck the defendant’s answer and construed the contract to be unambiguous, and interpreted it as imposing upon the defendant the obligation of paying the plaintiff $100 per month for his services, and entered judgment in his favor for the full amount of his claim. The defendant took the case to the Supreme Court, and that court held that the lower court erred in ruling that the contract was unambiguous, and held that the contract was ambiguous, and that parol evidence was admissible to explain the ambiguity, the ambiguity being as to whether the contract imposed upon the Novelty Hat Company the unqualified obligation to pay the plaintiff $100 per month for his salary in case the contract should be terminated before the' end of the year, or whether the obligation was to pay the plaintiff this amount of salary per month on average sales during the year that would make a total average for the year of $25,000; in other words, whether this average was to be calculated on the basis of the entire year’s business, or on average sales amounting to so much per week or per month. Novelty Hat Mfg. Co. v. Wiseberg, 126 Ga. 800.</p> <p>On the second trial the case was again submitted to the judge without the intervention of a jury. The plaintiff moved to strike the defendant’s plea of set-off and recoupment, claiming that the sums paid to him by the defendant were voluntary payments and could not be recovered back. The court refused to strike this plea, and the plaintiff excepted. After hearing the evidence the court rendered judgment in favor of the Novelty Hat Manufacturing Comparijr and against Wiscberg for $92.23, based upon the plea of set-off and recoupment. This judgment is assigned as error, because there was no evidence to support it, and because it was contrary to law. On the material issues in the case the evidence is conflicting.</p> <p>When the case was called in this court, a motion was made to dismiss the writ of error, on the following grounds: (1) That the bill of exceptions was filed before it was certified and before it was approved. (2) That the brief of evidence was filed before it was either approved or ordered filed. (3) That there is no sufficient assignment of error on the final judgment. The bill of exceptions is dated May 22, 1907. It was filed in the court below on the same day. The judge’s certificate is dated May 23. The bill of exceptions was served May 24. The brief of evidence was filed in the court below on May 22, and approved and ordered filed May 23. The clerk of the court below certified to this court the •original bill of exceptions on June 7, 1907.</p>

<p>Complaint, from city court of Bainbridge — -Judge Harrell.. April 29, 1907.</p>

<p>1. The purchaser of' a soda fount, who buys it by description and number, and who accepts in lieu thereof another soda fount of a different number and, with full opportunity for inspection and with knowledge that the soda fount received by him is not t^e same as the one originally purchased, pays thereon twelve of a series of promissory notes, without notice to the vendor of any defects, and thereafter sells to another all his interest in the soda fount, is estopped from pleading partial failure of consideration.</p> <p>2. Such course of conduct is a waiver of defects, latent and patent; and the evidence on the subject, coming from the defendants’ own witnesses and being uncontradictod, demands a finding in behalf of the plaintiff for the unpaid remainder of the purchase-price.</p> <p>3. The discretion appertaining to a judge of the superior court as to the first grant of a new trial, on petition therefor by certiorari, where issues of fact are involved, does not exist where the question presented by the certiorari is one purely of law. To order a first new trial, where the issue depends solely upon the weight of the evidence, is discretionary. To set aside a finding, when no different result can. be reached, is erroneous.</p>

<p>Complaint, from city court of Miller county — Judge Bush. May 18, 1907.</p>

<p>Action of trespass, from city court of Douglas — Judge Boan. June 20, 1907.</p>

<p>Action for damages, from city court of Dalton — Judge Longley. May 20, 1907.</p>

<p>1. Where a ' contractual relation, such as that of shipper and carrier, exists between the parties, so that the carrier rightfully obtains possession of the property, and a conversion is not alleged, a suit brought, to recover damages arising from delay in delivery or failure to deliver is not necessarily an action ex delicto. In such a case the plaintiff has an option to waive the tort and maintain assumpsit. Bates v. Bigby, 123 Ga. 729 (51 S. E. 717). The present case is distinguished from Gragg v. Arendale, 113 Ga. 181 (3 S. E. 399), and Southern Ry. Co. v. Born Steel Range Co., 122 Ga. 658 (50 S. E. 488), both of which deal with eases in which a conversion was alleged. If a petition is ambiguous, this may furnish ground for demurrer, but the plaintiff may amend so as to show clearly whether he is suing for a tort or for a breach of contract. King V. Southern Ry. Co., 128 Ga. 288 (57 S. E. 507) ; Central Ry. Co. v. Pickett, 87 Ga. 734 (13 S. E. 750).</p>

<p>Appeal, from Eulton superior court — Judge Pendleton. May 28, 1907.</p>

<p>Action for damages, from city court of Albany — Judge Crosland. June 8, 1907.</p> <p>Waxelbaum Company brought a suit for the recovery'of damages, against the Atlantic Coast Line Railroad Company.. The case proceeded to trial before a jury, and a large amount of testimony was adduced in behalf of both parties. The testimony in behalf of the plaintiff tended to establish the liability of the defendant for the non-delivery of a certain box of goods marked M, and testimony in behalf of the defendant tended to show the delivery of the boxes in question to the consignee. On behalf of the defendant, however, there was positive testimony that at the time the box of goods in question were shipped and when they were received at Albany, the defendant had no railroad, or depot, or agency at Albany. Mr. Winegate, a witness in behalf of the defendant, testified, that he was with the Plant system in 1901, as cashier at Albany; that there was no Coast Line at that time at Albany, and that the Coast Line at that time did not run into Albany. After the introduction of this evidence the plaintiff’s counsel asked that the case be withdrawn from the jury, and for a continuance, in order to investigate' the question. The defendant objected, and moved the court to direct a verdict for the defendant. Counsel for the plaintiff thereupon argued that the court had the authority to withdraw the. ease, and made the statement that the plaintiff' was helpless to overcome the evidence of the defendant upon the' point that the Atlantic Coast Line was not doing business at Albany in 1901, not having anticipated such evidence. The court, then overruled the motion to direct a verdict for the defendant,, and, after cautioning the jury not to discuss the case, adjourned the hearing of the ease until the 8th of June. On the 8th off June, 1907, the case was duly called, and Mr. George S. Jones,, the counsel who had conducted the case on the previous two days-of trial, was absent. Nor was there any other appearance for the plaintiff. On June 7, 1907, as appears from the bill of exceptions, Mr. Jones sent a letter and a telegram to the presiding judge, in which he stated that he was engaged in the Supreme Court, and would necessarily be compelled to argue a case in that court on the next day (the 8th) which was the date to which the present case had been “passed. The telegram said, “Engaged in Supreme Court to-day and Saturday. Please check Waxelbaum case.” The letter fully detailed the facts in regard to certain cases in the Supreme Court in which Mr. Jones’ presence was necessary because he had tried them in the court below, without assistance, and asked the court to continue the case until some day of the succeeding week. If this 'was impossible, a mistrial was asked for. The court declined to continue the case, and awarded a nonsuit, upon the ground that the plaintiff had sued the Atlantic Coast .Line, and the wrong, if any was committed, was done either by the Savannah, Florida & Western Eailroad or the Brunswick & Western Eailroad, and because there was no evidence to show that the Atlantic Coast Line was in any way responsible for their torts. The Waxelbaum Company excepts to the judgment granting a nonsuit.</p>

<p>Action for damages, from Carroll superior court- — Judge Freeman. August 8, 1907.</p>

<p>1. In eases of attachment, the giving of a replevy bond, the filing of a. general demurrer, and an answer, without protestation, each operates-to convert the action from a suit in rem into an action in personam; and the case, so far as obtaining a common-law judgment against the-defendant in attachment is concerned, is in the same condition as if there had been an action begun in the usual form followed by personal service.</p> <p>(а) Where the defendant in attachment has, by any of the methods mentioned above, effected a general appearance in the suit, the dismissal of the attachment - does not operate to dismiss the suit.</p> <p>(б) Where the defendant in attachment enters a special appearance and calls in question the validity of the attachment and of the levy thereon, but also gives a replevy bond and enters a general appearance {his surety not complaining), a consideration of the grounds of the special appearance is immaterial.</p> <p>2. A defendant in attachment who has made a general appearance in any of the methods stated in the preceding headnote may by timely pleadings nevertheless question the venue of the action or the court’s jurisdiction of the subject-matter. He may make any defense he could have made if he had been personally served with process.</p> <p>(a.) A non-resident corporation is, except in certain cases where by statute the contrary is prescribed, subject to suit in any county in this State where it can be served or where it submits itself to the jurisdiction of the court by a general appearance.</p> <p>(6) The statutory rule confining suits against railway companies for torts to the county where the cause of action arose does not apply to torts committed beyond the limits of the State by non-resident railway companies.</p> <p>(e) Foreign corporations are subject to attachment in this State, whether they do business herein or not.</p> <p>3. Where a shipment of goods is delivered in good order to a common carrier under a contract that it shall transport them to its terminus and deliver them to a connecting carrier, and the shipment arrives at destination in a damaged condition, and the proof shows that at least a portion of the damage was done by the initial carrier, it will be presumed to have caused the whole damage, until it submits proof to the contrary.</p>

<p>Action for damages, from city court of Dalton — Judge Longley. August 21, 1907.</p>

<p>Action for damages, from city court of Hall county — Judge Boone. August 19, 1907.</p>

<p>The principals in an administrator’s bond on which a non-resident fidelity-insurance company is surety may be joined with the surety in a suit brought in any .county wherein jurisdiction over the surety may be obtained.</p>

<p>Certiorari, from Elbert superior court — Judge Holden. September 12, 1907.</p>

<p>Accusation of killing hog, -from city court of Wrightsville— ■Judge Faircloth. November 20, 1907.</p>

<p>Action for damages, from city court of Cordele — Judge Stro2ier. September 27, 1907.</p>

<p>T. One who is merely de facto a judicial officer is not personally liable for the exercise of judicial functions, even though his acts be corrupt. One, however, who affects or purports to act by virtue of authority appertaining to an office which does not in fact exist is personally liable for his acts.</p> <p>'2. The recommendation by the grand jury of a county, that the alternative road law be adopted, makes such road law immediately operative and divests the road commissioners of all power to try or punish defaulters for failure to work the public roads; and any process, judgment, or order thereafter issued by the road commissioners, in conformity with § 547 of the Political Code, is void.</p> <p>3. The Political Code, § 583, delegates quasi-legislative functions, with reference to roads, to the grand jury. Where the recommendation of a grand jury is attacked for informality, indefiniteness, or ambiguity of expression, effect will be given to the apparent intention and the object sought to be attained by the grand jury. A report returned in the general presentments of a grand jury, which contains the language, “we thought it best to recommend the alternative road law, and also that the convicts be worked on our roads as early as possible,” when adopted by that body and when the presentments have been returned into court and received, operates as an adoption of the alternative road law.</p> <p>-4. When the road law is adopted by the recommendation of the grand jury, road commissioners cease to exist in that county, and an exercise of any judicial, function whatever by those persons who may previously have been road commissioners becomes legally impossible.</p> <p>•5. Where such persons, after the recommendation of the grand jury, putting the alternative road law into effect, attempt to exercise judicial ■or official functions, they are individually and personally liable for their acts. And a petition which alleges that said former commissioners, knowing that they had no authority, with intent to injure and damage a petitioner, unlawfully arrested and imprisoned him in the common jail, sets forth a good cause of action and should not be dismissed on demurrer.</p>

<p>Action on bond, from city court of Wrightsville — Judge Fair-cloth. February 14, 1907.</p>

<p>1. The form of a verdict rendered by a jury is immaterial where both parties to the cause, by agreement, consent to the submission of a single issue, and that the jury may return a verdict upon that issue in language suggested by the court and which is sufficiently intelligible to be the basis of a legal judgment.</p> <p>2. In a case where it is plain, under the pleadings and the evidence, that if two separate and independent contracts were entered into between the parties, the verdict should be for the plaintiff (the amount of his claim not'being disputed), but that if only one contract, in its terms and nature an entire contract, was entered into by the parties, then, as a matter of law, the finding of the jury should be in favor of the defendant, a verdict, “We, the jury, find in favor of the entire contract,” is such a verdict as authorizes a judgment in favor of the defendant, and for costs against the plaintiff.</p> <p>3. The portions of the charge of the court to which exceptions are taken are not erroneous. When considered in the light of the explanatory note of the court, the instructions complained of were aptly adjusted to the issues raised by the pleadings and the-evidence.</p>

<p>Action on insurance policy, from city court of Atlanta- — -Judge -Reid. March 19, 1907.</p>

<p>In view of the peculiar phraseology of the covenant of warranty employed in the “iron-safe clause” in the policy in this case, and of the evidence that there was a breach of the personal warranty of the insured, the contract was avoided and it was not error to award a nonsuit.</p>

<p>1. An affidavit in forma pauperis, which has been made in lieu of the bond required in certiorari, is not amendable.</p> <p>'2. A writ of certiorari is void when the same is issued in a ease where the bond required by the Civil Code, §4638, properly approved, has not been given. A writ of certiorari is likewise void, where, in lieu of such bond, an affidavit in forma pauperis is tendered, where such affidavit, in violation of the act of 1897, uses the conjunctive “and” instead of the disjunctive “or,” as required by law.</p>

<p>Indictment for assault with intent to murder, from Putnam superior court — Judge Lewis. October 21, 1907.</p>

<p>The evidence was such as to authorize the conviction.</p>

<p>Accusation of misdemeanor, from city court of Dublin — Judge Burch. October 23, 1907.</p>

<p>Certiorari, from Tift superior court — Judge Mitchell. November 12, 1907.</p>

<p>Indictments for vagrancy, from Floyd superior court — Judge 'Wright. November 13, 1907.</p>

<p>Accusation of gaming, from city court of Americus — Judge’ Crisp. November 19, 1907.</p>

<p>Indictment for assault and battery, from Floyd superior court —Judge Wright. November 9, 1907.</p>

<p>Accusation of bastardy, from city court of Newnan — Judge Freeman. November 27, 1907.</p>

<p>No error of law was committed, and the verdict is fully supported by the evidence.</p>

<p>Accusation of carrying concealed weapon, from- city court of Monticello — Judge Thurman. November 25, 1907.</p>

<p>Indictment for assault with intent to murder, from Catoosa superior court- — Judge Eite. October 17, 1907.</p>

<p>Indictments for selling liquor, from Decatur suuerior court— Judge Spence. November 25, 1907.</p>

<p>1. This ease is fully controlled, on the question of intent, by the decisions of this court in the eases of Mulkey v. State, 1 Ga. App. 521 (57 S. E. 1022), and Patterson v. State, Id. 782 (58 S. E. 284).</p> <p>2. An essential element of the offense created by the act of 1903 (Acts, p. 90) is loss and damage to the hirer, caused by a breach of the contract;-. and this essential element is not shown in this ease.</p>

<p>Conviction of manslaughter, from Whitfield superior court— Judge Fite. December 2, 1907.</p>

<p>-1. The law requires two witnesses, or one witness corroborated by circumstances, in order to prove the crime of- perjury. No legal rule can be laid down to measure the extent of the corroboration. Some corroboration must exist. The amount is, in each particular ease, for the determination of the jury. It is enough if the corroborating circumstances, though slight, are sufficient to satisfy the jury.</p> <p>2. Where an indictment charges one offense committed in different ways, in several counts, a conviction on one or more of the counts, supported by sufficient legal proof, will be upheld. A proper conviction on one count will not be set aside because of an unwarranted conviction on another count. The verdict on the latter can not harm the defendant; for the punishment is the same whether the conviction is sustained on one count or on more than one count.</p> <p>3. The verdict on the first and se.cond counts of the indictment is warranted by the evidence, the trial judge was satisfied, and this couj-t will not interfere.</p>

<p>Indictment for adultery, from Wilcox superior court — Judge Whipple. November 30, 1907.</p>

<p>Certiorari, from Henry superior court — Judge Eeagan. October 30, 1907.</p>

<p>Accusation of cheating and swindling, from city court of Fayetteville — Judge Hollingsworth. November 20, 1907.</p>

<p>Indictment for robbery, from Chatham superior court — Judge Cann. November 16, 1907.</p>

<p>Accusation of cheating and swindling, from city court of Dalton —Judge Longley. November 9, 1907.</p> <p>Lon Ware was prosecuted by Carter L. King. The accusation alleged that he cheated and defrauded King of $3.90, by falsely representing to King that he was receiving $3.50 per day for a team he had at work for the City of Dalton; upon the belief of which representation King let Ware have certain goods. The evidence showed, that Ware had been a customer of King, but had bought nothing of him for some time, and was indebted to him about $3.50. King invited him to come back and trade, and on the same day Ware bought a few cents worth of additional goods and had them charged. Thereafter Ware went to King’s store and ordered of King’s wife articles that amounted to $3.93. King directed that they be not sent out until he saw Ware. He met Ware on the next day, and told him that he would not send the goods until he was sure of his pay for them, as Ware already owed him. Ware then stated that he was working on the streets for the city, had a team on the streets, was getting $3.50 per day, .and would give King “an order on his time,” so he could get his money the next pay-day. King believed this statement, and acted on it by sending the goods. On the next day Ware told him he ■could not give an order on his time, because he was a partner with Louis Powell, and only got $1.25 per day, but would pay him when he collected it. He then offered to mortgage his horse to King for the debt; but King refused this.. As soon as the next pay-day came, Ware carried $5 to King and told him he wanted to pay King $4 and keep $1. King agreed to this, and the payment was made. He swore out the warrant against Ware some time afterwards, hoping that Ware would pay off the debt. Nothing further appears as to what Ware was receiving from the city; and nothing as to venue. The accused excepted to the refusal of ,a new trial after conviction.</p>

<p>Indictment for assault with intent to rape, from Hancock superior court — Judge Eeagan presiding. November 18, 1907.</p>

<p>Accusation of larceny from house, from city court of Tifton — - Judge Eve. December 13, 1907.</p>

<p>Accusation of gaming, from city court of Hall county — Judge Boone. December 7, 1907.</p>

<p>Accusation, of larceny from house, from city court of Tifton — - Judge Eve. December 11, 1907.</p>

<p>Action of slander, from city court of Statesboro — Judge Brannen. August 28, 1906.</p>

<p>Attachment, from city court of Columbus — Judge Willis. January 22, 1907.</p>

<p>Action for damages, from city court of Atlanta — Judge Beid. March 18, 1907.</p>

<p>1. The verdict in behalf of the plaintiff was required by the evidence; and’ those assignments of error which are approved by the trial judge would not authorize the grant of a new trial.</p> <p>2. Where a party to a cause on trial permits, without objection, the introduction of irrelevant and inadmissible testimony, the refusal of the' court to sustain an objection subsequently urged, to the admission, of substantially the same evidence as that already admitted, will not work a new trial. The failure to object sooner may be deemed to be a waiver of the objection.</p> <p>3. Readiness to tender is not equivalent to tender.</p> <p>4. It is not error for the judge to state to the jury that a fact, which is admitted by either party, is so admitted, provided a correct statement of the admission is made.</p> <p>5. It appears, even from the excerpts from the charge of the court contained in the motion for new trial, that the contentions of both parties were impartially presented to the jury.</p> <p>6. The trial judge was justified in not presenting to the jury the defendants pleas of recoupment, rescission, and failure of consideration, inasmuch as the evidence would not have authorized, in any view of the case, a verdict in favor of the defendant on any one of these pleas.</p>

<p>Complaint, from city court of Tifton — Judge Eve. May 16,, 1907.</p>

<p>1. Where it does not appear on which ground of a motion for new trial a first new trial is granted, this court will presume, where it appears that a different verdict could legally have been awarded (regardless of the reasons assigned by the court for this judgment), that the new trial was properly granted.</p> <p>2. One whose personal property has been wrongfully withhéld or converted by another may proceed by trover to recover it, or he may waive the tort, adopt the transaction, and treat the wrong-doer as his debtor for the purchase-price. After he has made his election and has sued out an attachment for the purchase-money, and purchased the property thereunder, he can not be heard to deny that the property has been the property of the wrong-doer. Where one has the right to elect between two inconsistent remedies, the election once made is irrevocable, and the . reasons for the election are irrelevant in any proceeding subsequently had with reference to the title.</p> <p>3. One who has elected to waive the tort, and to treat as purchaser one who has wrongfully converted his property, is not thereby estopped to assert, in defense of an action of trover, title derived from a sale of the property under the proceedings instituted by him to collect his debt, although, except for his election, he might have asserted a different title.</p> <p>4. Where one buys a mule from an agent of the true owner, in ignorance of such ownership, and in the belief that the mule is the property of the agent, the title of the purchaser, though inferior to that of the true owner, asserted by trover, would be superior to the title of such owner, if, subsequently to the conversion, the latter elected co proceed by attachment for the purchase-money, against his bailee, and thereafter recognized the wrong-doer as the owner, by purchasing the property when sold under the attachment. The title derived at shei-iff’s sale under the attachment would, however, be superior to that derived from the agent of one whose principal himself had no title to the property in question at the time of the levy of the attachment.</p>

<p>Certiorari, from Ben Hill superior court — Judge Whipple. May '21, 1907.</p>

<p>Indictment for misdemeanor, from Fannin superior court— Judge Gober. July 13, 1907.</p>

<p>1. No error of law being assigned, and there being sufficient evidence in behalf of the prevailing party to authorize the verdict, the refusal of a new trial was not erroneous.</p> <p>2. In order for such mutuality of account to exist as will arrest the bar of the statute of limitations, each party to the account must extend credit to the other on the faith of an admitted indebtedness on his part which affords the basis of credit to the other party. • To bring an account, otherwise barred, within the exception recognized in cases of mutual accounts, it is not enough to show that there are two accounts. It is essential that the proof show that the indebtedness. of each party, from which the account arose, was the result of a course of dealing in which credit was extended on the faith of indebtedness to him.</p>

<p>Action for damages; from city court of Fayetteville — Judge ■ Hollingsworth. July 22, 1907.</p>

<p>1: The verdict rendered in behalf of the plaintiff is not, for lack of any evidence to support it, contrary to law. When the plaintiff showed injury occasioned by the car of the defendant company, the burden of proof was shifted to the defendant, and it became incumbent upon it to show that the plaintiff consented to the injury or could have avoided it by the use of due care, or that the employees of the company exercised all ordinary and reasonable care and diligence; and the verdict of the jury, that the defendant failed to carry successfully this burden, is fully supported by the evidence.</p> <p>2. The admission of testimony as to experiments must largely rest in the discretion of the trial judge; and the exercise of this discretion will not be controlled, unless manifestly abused. The weight to be attached to such testimony is for the jury, and varies according to the circumstances of similarity which the jury may find to exist between the experiment made or observation taken and the actual occurrence whose facts and features are under investigation. The opinions of witnesses as to speed and distance are admissible in evidence; and computation of time and distance for the purpose of comparison is not objectionable, where it tends to enhance the accuracy and correctness of the opinion submitted.</p>

<p>1. There wast no error in allowing an amendment to the petition of the plaintiff, alleging liability of the same defendants to the same plaintiff for the commissions growing out of the same transaction and referring' to the same contract, but varying the statement of some of the stipulations of the contract.</p> <p>2. The instructions in the charge of the court ter which exceptions are-taken state the contentions and issues in the case. If, therefore, more specific instructions were desired, they should have been requested.</p> <p>3. The newly discovered evidence is merely cumulative and impeaching. It therefore affords no ground for a new trial.</p> <p>4. This court has no power to determine that the preponderance of the evidence is in favor of one party to a cause rather than the other, or to award a new trial in any case where there is any evidence sufficient to-support the verdict rendered.</p>

<p>Certiorari, from Eulton superior court — Judge Ellis. September 13, 1907.</p>

<p>Certiorari, from Early superior court — Judge Worrill. October 11, 1907.</p>

<p>Action upon insurance policy, from city court of Dublin — Judge Burch. October 23, 1907.</p>

<p>The evidence authorized the verdict of guilty, and there was no error im refusing a new trial. ,</p>

<p>Conviction of manslaughter, from Campbell superior court— Judge Worrill presiding. December 3, 1907.</p>

<p>Action for damages, from city court of Atlanta — Judge Beid. October 33, 1906.</p> <p>The .petition alleged: The defendant, the Georgia Railway and Electric Company, is a street-railway corporation, operating a line of street-railway in the city ofvAtlanta. Defendant has. damaged petitioner in the sum of $1,000, by reason of the following facts: On May 18, 1904, about 6.30 o’clock p. m., petitioner, while riding as a passenger on one of defendant’s cars going west on Marietta street, was injured by the negligence of defendant as hereinafter shown. The car which petitioner boarded was so crowded that all of its seats were occupied, and petitioner found it necessary to stand up in the aisle of the car and hold on with one hand to the back of the seat, to steady himself. His position was in full view of the conductor and was well known to the conductor,, and the conductor saw him while occupying this position, which, is usual and customary on the cars of the defendant when all the seats are occupied. The car stopped ■ at Simpson street for the purpose of taking on or letting off passengers, and then started forward, continuing its way out Marietta street. After it had started and while it was running slowly, it gave a sudden, violent, negligent, and careless jerk forward, and petitioner was thrown to the floor and seriously and permanently injured. Petitioner was injured through the negligence of defendant, which consisted in jerking said car suddenly, violently, negligently, and carelessly. —The petition set out the nature of the injuries, and alleged that the plaintiff could not have avoided the same by the exercise of ordinal care.</p> <p>An amendment filed by the plaintiff states that he “sets forth the following as an additional ground of negligence and as an aggravating circumstance in the act of the defendant by which petitioner was injured: (1) Petitioner shows that the defendant is a street-railroad company and is a carrier, for hire, of passengers in the city of Atlanta, and owns the franchise for operating' street-cars along Marietta street, in said city; that for several years past (since January 28, 1902) it has been operating streetcars under said franchise on said street, and has constructed double tracks along said street for the .operation of its cars. (2) Petitioner shows that the Marietta street line is one of the principal lines of travel in said city and is traveled by great numbers of people every clay in riding to and away from their places of work and business, and is a source of large income to the defendant company; that the number of passengers on said line is always at its greatest during the morning hours when the outlying population of the city is traveling in towards the center and in the eariy evening hours when said population is traveling homeward; that this, condition is a matter,of general knowledge, and was especially well known to the defendant company, and had been well known to it for several years, since its organization on January 28, 1902. (3) Petitioner shows that despite the above-recited facts, the defendant had, at the time of the injury to the plaintiff and ever since its organization as a railroad company, wholly failed and neglected to equip said Marietta-street line with safe and adequate accommodations, had failed to equip said line with a sufficient number of cars to carry the travel offering on said line at the hours of heavy travel, and had been compelling a large proportion of the people traveling on said line at the hours of heavy travel to ride standing up and in densely crowded and dangerous positions; that although, at the time said injury occurred, the defendant was fully aware of its inadequate equipment, it had failed and persistently refused to increase the same to meet the demands of its usual traffic, and was daily and continually compelling the public — negroes and white men and women — to ride standing up and packed together in the cars in dangerous positions, all of which, petitioner alleges, was gross and wilful negligence on the part of the defendant, was done for the purpose of saving money and increasing the company’s profits and the dividends of its stockholders and bondholders, and was a conscious and deliberate violation of its duty to petitioner and the traveling public. Not only on said Marietta-street line was there a failure to provide adequate and proper accommodations for its patrons, but also on all the principal lines of its system in the city of Atlanta. (4) Petitioner shows that at the hour he boarded the car in question, to wit, at 6.30 p. m. on May 18, 1904, the same was in so crowded a condition that every seat was occupied and a large number of people, including himself, had to ride standing up in ■crowded and dangerous positions. (5) Petitioner, on account of the fact that he was standing up, was unable to meet and resist the jerk of the car described, and was thereby thrown violently backward to the floor. In his fall the instep of his right foot was •caught under the iron support of the seat; and the weight of his entire body being thus thrown upon his instep, the same was violently torn and sprained. (6) Petitioner shows that if the defendant company had properly discharged its duty and provided sufficient cars to carry the usual evening travel, petitioner would not have been injured as alleged; that the crowded condition of the car, which was the result of the defendant’s aforesaid neglect, compelled petitioner to stand up, and the fact that he was standing disabled him from resisting the jerking and bumping of the car and caused the fall that injured him. If petitioner had not been compelled to ride standing, he would not have been thrown by the jerk and would not have been injured. (7) Petitioner shows that he is a practising surgeon in the city of Atlanta, and, at the time referred to, was on his way to respond to a call of a patient, and for this reason he was obliged to take the first ear that came by, and could not wait. Prior to the injury petitioner had paid his fare. (8) Petitioner alleges that the continued, deliberate, and conscious neglect of the defendant company to equip its lines with adequate and sufficient cars to carry the public in safety constitutes an aggravating circumstance in the act by which petitioner was injured; and he amends paragraph 2 by substituting for $1,000 the sum of $5,000; for which he prays judgment as actual and punitive damages.”</p> <p>To this amendment the defendant demurred as follows: To paragraphs 2 and 3, because they seek to set out irrelevant and immaterial matter, and because the matter therein set out is not the proximate cause of any injury for which the plaintiff sues. To “that part of paragraph 4 which alleges ‘in crowded and dangerous positions;’ because the same is a mere conclusion of the pleader.” To that part of paragraph 6 which alleges, “Petitioner shows that if the defendant company had properly discharged its duty and' provided sufficient cars to carry the usual -evening travel, petitioner would not have been injured as alleged;” because this refers to the irrelevant and immaterial part of the amendment as set out in paragraphs 2 and 3; and because it is irrelevant and immaterial, and is not the proximate cause of any injury for which plaintiff sues. To “that part of paragraph 6 which follows the allegation, ‘the crowded condition of the car,’ to wit, ‘which was the result of the defendant’s aforesaid neglect;’” for the reasons-stated in the preceding ground. To paragraph 2, for the same-reasons, and because the plaintiff is not entitled to recover punitive damages, on the facts set out in the original petition and in the amendment. The court sustained the demurrer.</p> <p>The plaintiff then presented an amendment which, on objection of the defendant, the court declined to allow. This proposed amendment was as follows: “(1) Petitioner shows that he is a. surgeon practising his profession- in the city of Atlanta, and, on the evening when he suffered the injury aforesaid, had received a telephone message calling him to attend a patient living far out in the northwestern portion of the city, and was, at the time,, on his way to respond to said call. The Marietta street car line-was the quickest and most direct route to reach the home of said patient. (2) Petitioner shows that when he. boarded the car in question at the corner of Marietta and Broad streets, he was admitted and received into the car by the conductor in charge of the same, and said conductor collected from him the usual fare, ■ — -5 cents. (3) Petitioner shows that said conductor nevertheless wholly failed and neglected to assign petitioner to a seat in said car, 'and petitioner was not provided with a seat. (4) Petitioner further shows that said conductor wholly failed and neglected. to furnish him equal accommodations with other passengers,, in that many of said passengers were provided with seats while petitioner,, although he had paid his fare, was compelled to stand up in the aisle of the car, holding on to the backs of benches for support. The car was of the type having an aisle down the center from the front to the rear, with seats on the sides, each seat holding two passengers. (5) Petitioner shows that a passenger-seated is in a safer position than a passenger standing up, and is-better enabled to resist the jerking of the car, and is not as liable-to be injured by such jerking. (6) The jerk by which petitioner was injured was of violence sufficient to thrqw petitioner from his. standing position in the aisle of the ear, but was not of sufficient, violence to have thrown or injured him had he been seated. (7) Petitioner shows that the act by which he was injured was attended with aggravating circumstances, in that it was a result off a long-continued practice on the part of the defendant company,, adopted and pursued by it in wilful and reckless disregard of. the-rights of the plaintiff and of the public generally, the practice referred to being the continued overcrowding of its cars, in conscious and deliberate neglect of the duties imposed upon it by the law as contained in sections 2268 and 2270 of the present code.” (8, 9) Paragraphs 8 and 9 of this amendment contained in substance and with amplification the matter contained in paragraphs 2 and 3 of the first amendment. Paragraph 10 was as follows: “Petitioner alleges that the continued, deliberate, and conscious failure of the defendant company to furnish its patrons with equal accommodations and to assign them to seats constitutes an aggravating circumstance in the act by which petitioner was injured, and he amends paragraph 2 of the original petition by substituting for $1,000 the sum of $5,000, for which he prays judgment as actual and punitive damages.” A separate amendment, substituting $5,000 for $1,000, as damages, was allowed.</p> <p>The bill of exceptions assigns as error the judgment sustaining the demurrer to the first amendment and the refusal to allow the second amendment; and proceeds as follows: “After said rulings the case went to trial regularly on its merits, with submission of evidence and charge of the court, and a verdict was rendered for the defendant and judgment entered thereon. Having refused to allow the petition to be amended as above recited, and such rulings being controlling, as plaintiff in error contends, in the result of the case, the court erred in permitting said verdict fo be rendered and said judgment to be entered. To the action of the court in permitting said verdict to be rendered and said judgment to be entered, the plaintiff in error excepted, now excepts and assigns the same as error, upon the ground that the same was contrary to law, and that the court having refused to let the petition be amended, and such refusal, as plaintiff in error contends, being controlling in effect, the said verdict and judgment could not be a legal termination of the case.” There was a motion to dismiss the writ of error, on the following grounds: (1) The judgment excepted to was not a final one, and was not a judgment affecting the final result of the case. (2) No proper exception was taken to the verdict and judgment finally disposing of said case. (3) The final determination of said case is not now brought to this court for review. (4) The only errors complained of and brought to this court for review are exceptions to the ruling made pendente lite.” Questions raised by the motion to dismiss were certified by the Court of Appeals to the Supreme Court, for instruction, and are set out, with the instructions of the Supreme Court thereon, in 129 Ga. 353.</p>

<p>Complaint, from city court of Americus — -Judge Crisp. April 13, 1907.</p>

<p>Action for damages, from city court of Hall county- — Judge Boone. June 1, 1907.</p>

<p>The verdict is wholly without evidence to support it, and the judgment refusing a new trial is erroneous.</p>

<p>Action of trespass, from city court of Polk county — -Judge' Irwin. June 6, 1907.</p>

<p>Certiorari, from Paulding superior court — Judge Edwards. June 3, 1907.</p>

<p>Trover, from city court of Abbeville.</p> <p>Practice in the Court of Appeals.</p>

<p>1. Under a conveyance purporting to sell, lease, or convey to the grantee-“all the pine timber for sawmill purposes” on certain described lauds, only such timber as is at the time of the conveyance suitable for sawmill purposes passes; and to this extent the phrases “for sawmill purposes” and “suitable for sawmill purposes” are identical in effect. However, under such a license, the grantee does not, as when the broader language, “all the timber suitable for sawmill purposes,” is used, obtain the right to usé such timber as may be within the description for any other than sawmill purposes. The cases of Martin v. Peddy, 120 Ga. 1079(4), (48 S. E. 420), Allison v. Wall, 121 Ga. 823(6), (49 S. E. 831), and Pennington v. Avera, 124 Ga. 147, 149 (52 S. E. 324), distinguished.</p> <p>2. When such a conveyance does not name an express time within which, the privilege is to be exercised, an implication arises that it is to be exercised within a reasonable time. McRae v. Stillwell, 111 Ga. 65 (36 S. E. 604) ; Goette v. Lane, 111 Ga. 400 (36 S. E. 758) ; Allison v. Wall, 121 Ga. 822 (49 S. E. 831).</p> <p>3. What is a reasonable time is a question of fact, under all the circumstances shown in each case. Allison v. Wall, supra. The finding of the judge, presiding without a jury, that the license in the present case had expired through the lapse of a reasonable time, is not without evidence to support it.</p> <p>4. Under section 31 of the act establishing the city court of Thomasville (Acts 1905, p. 392), the defendant in a'civil case -waives the right to a trial by jury, unless he enters a written demand therefor “within 15-days after the first day of the term of court to which the' case is returnable.” Heard v. Kennedy, 116 Ga. 36 (42 S. E. 509). No exception to this rule is created by reason of the fact that the judge of th& court is disqualified to try the case.</p>

<p>Certiorari, from Fulton superior court — Judge Ellis. October 11, 1907.</p>

<p>Appeal, from Early superior court — Judge Worrill. October 10, 1907.</p>

<p>The defendant having renounced his contract of purchase, the plaintiff was entitled to maintain his suit upon the contract without furnishing as a gratuity certain articles which formed no part of the contract; and it was not error to overrule a petition for certiorari complaining of a judgment for the unpaid balance of the purchase-price stipulated in the contract, regardless of the failure to deliver certain articles contracted to be furnished free, in the absence of evidence sustaining a. proper plea of partial failure of consideration.</p>

<p>1. A judgment sustaining a motion for nonsuit is a final disposition of the cause, and a writ of error will lie therefrom; so also a judgment refusing to sustain a motion for nonsuit is a decision which “if it had been rendered as claimed by the plaintiff in error would have been a. final disposition of the eause,” and is therefore such a judgment as will support a writ of error.</p> <p>(а) Although a nonsuit be erroneously refused, if the subsequent proof in the ease cures the original deficiency or variance from the pleading, in the plaintiff’s proof, no error can be successfully assigned upon the-failure to grant the nonsuit.</p> <p>(б) If, after a refusal to nonsuit, the case proceeds to a mistrial, no writ-of error will lie.</p> <p>(e) If the ease proceeds to verdict for the plaintiff, the defendant may waive his right to a motion for a new trial and except directly to the refusal of the court to grant a nonsuit. The reviewing court in such cases will look to all the evidence in the record, to see whether thenonsuit should have been granted at the stage of the trial at which it -was moved, and also, if it then would have been proper, whether subsequent evidence cured such deficiencies as existed in the plaintiff’s case.</p> <p>(d) In case the defendant excepts directly to the refusal to grant a non-suit, it is the duty of the trial judge, under the Civil Code, §5528, to-determine what portion of the evidence is material to a consideration of that' question, and to require it to be incorporated in the bill of exceptions or into an approved accompanying brief. The reviewing court will conclusively presume that no portion of the evidence material to the errors complained of has been omitted.</p> <p>(e) In ease a nonsuit has been refused and the case has proceeded to verdict, and exception is taken to the court’s action on a motion for new-trial containing the general grounds, a consideration of the court’s action on the .nonsuit (if exception is also taken to that ruling) becomes immaterial, since the applicability and sufficiency of the evidence may be reviewed fully upon the exception to the court’s action on the motion for a new trial.</p> <p>(†) Where a trial judge holds a motion for nonsuit to be well taken, the plaintiff has the privilege, at any time. before judgment of nonsuit is actually entered, of amending liis pleading, or almost, if not absolutely, as a matter of course, of opening his ease and submitting sufficient additional testimony, thus avoiding a nonsuit. In the event that the reviewing court should reverse the trial court’s refusal to grant a non-suit, the plaintiff would likewise have the privilege, at any time before the remittitur from the reviewing court rvas made the judgment of the lower court,' to offer a sufficient amendment correcting the variance, or to show that he could supply such additional evidence as to cure the deficiency existing on the former trial; and upon such amendment being filed, or such showing as to additional adequate testimony being made, it would be the duty of the trial court to reopen the ease and order a new trial, notwithstanding the judgment of the reviewing court that it was erroneous not to grant a nonsuit under the pleadings and proof as they stood at the former trial.</p> <p>{g) This practice will tend to expedite litigation and to prevent the annoyance and the expense of an additional tentative jury trial to see whether a plaintiff can better his ease on a second round.</p> <p>2. An immaterial and unsubstantial variance between the pleading and the proof is not sufficient cause for a nonsuit.</p>

<p>Claim, from city court of Ashburn — Judge Hawkins. October 9, 1907.</p>

<p>Trover, from city court of Forsyth — Judge Clark. October 31, - 1907.</p>

<p>Appeal, from Wilkinson superior court — Judge Lewis. October 7, 1907.</p>

<p>Complaint, from city court of Atlanta — Judge Eeid. November 16, 1907.</p>

Conviction of manslaughter, from Whitfield superior court— judge Fite. November 21, 1907. Claude Warnaek was indicted for murder, and on his trial was convicted of voluntary manslaughter.

<p>1. The evidence authorized the verdict.</p> <p>2. A party can not impeach a witness he introduces, unless it be shown . that he is entrapped by the witness; but the jury are not for that reason required to believe such a witness in preference to others.' .Consequently, though the State introduce a witness whose testimony, if believed, may show the innocence of the accused and contradict the evidence of another witness, previously introduced, which established his guilt, tliedefendant is not thereby necessarily entitled to an acquittal. The credibility of both witnesses, and the comparative credibility of each, is a matter to be determined by the jury.</p>

<p>The recent, absolute, and unexplained possession of property stolen from a house proved to have been burglarized may be sufficient to authorize a conviction of burglary, but the presumption of guilt arising from proof of such facts is not one of law.</p>

<p>Accusation of larceny from railroad-car, from city court of Grif-^ fin — Judge Hammond. December 1C, 1907.</p> <p>John Varner was accused of entering a railroad-car and stealing from it 500 pounds of coal. He excepted to the denial of a new trial after conviction. The evidence showed, that he drove a wagon, owned by one Barfield, to the side of an open coal-car that was about midway of a freight-train standing on a side-track of the Central of Georgia Railway Company, and in its possession, at Sunnyside station, and -loaded the wagon with some coal that was tying loose in a pile on the ground by the car. There were 1400 or 1500 pounds of it, worth three or four dollars. It was of the same kind as that on the car just mentioned, and different from the coal on Barfield’s car. The accused was then, and at the time of his trial, in the employment of the railway company. In his own behalf he stated, that the flagman of the train asked him if he could procure breakfast for the trainmen; that he went to the store, and Barfield ■ furnished them with something to eat, and told him to get the wagon and haul some coal that the flagman threw from the car. He did this; it was but a few lumps; the conductor, flagman, and engineer were present and saw the whole thing; he carried the coal to Barfield’s, and had nothing to do with it.</p>

<p>There being no evidence,' either by the State or by the accused, nor anything in the defendant’s statement, indicating manslaughter," a verdict finding the defendant guilty of that offense must be set aside.</p>

<p>Accusation of selling liquor, from city court of Dalton — Judge Longley. December 21, 1907.</p>

<p>There was evidence sufficient to authorize the verdict. No reversible error appears in any of the exceptions to the rulings of the court or the charge; to the jury.</p>

<p>Accusation of larceny from house, from city court of Lexington —Judge Davis. December 9, 1907.</p>

<p>1. The verdict was authorized by the evidence.</p> <p>2. Where, in the argument of State’s counsel, it was stated that the prosecutor was an officer of the law whose duty it was to prosecute, and, upon objection of the defendant’s attorney, the court stopped counsel for the State, who then promptly withdrew the remark, and the jury were immediately instructed by the court not to give any consideration to the remark, the refusal to declare a mistrial, upon the defendant’s motion because of the remark in question, was not error.</p> <p>3. It is not error, in the trial of one indicted for assault with intent to murder, where evidence has been introduced tending to show that he shot at another with a pistol in return for a slap upon the face,, to instruct the jury that it is not every trivial provocation which in point of law will amount to an assault, nor every blow which will as a matter of law reduce a homicide from murder to voluntary manslaughter.</p> <p>4. The sentence imposed in a trial court is not to be deemed, as matter of law, excessive, nor is it subject to review, unless the penalty exceeds that provided by law for the offense.</p>

<p>Complaint, from city court of Atlanta — Judge Calhoun. June 22, 1907.</p>

<p>1. The act of the General Assembly approved August 20, 1906 (Acts 1906, p. 120), providing that the writ of attachment shall not be used to subject in this State wages of non-residents-which have been earned wholly without the State, is applicable to proceedings pending in our courts at the time it went into effect and which at that time had not been reduced to judgment.</p> <p>{a) Prior to the passage of the act ,of 1906 the plaintiff sued out an attachment against a non-resident, and had it levied by serving summons, of garnishment on a debtor of the non-resident, who resided in this State; the answer of the garnishee admitted an indebtedness to the nonresident for wages earned wholly without the State; this answer was traversed and came on for a hearing after the act of 1906 became effective; it was admitted that the facts set up in the answer of the garnishee were true; the justice of the peace rendered judgment against the garnishee. Held, that it was not error for the judge of the superior court to sustain a petition for certiorari complaining of this judgment.</p> <p>{&) When a statute is capable of two constructions, one making it violative of the constitution, and the other making it consonant therewith, the latter construction will, if possible, be adopted. In holding that the above statute was intended to apply to pending proceedings which had not reached final judgment, the constitutionality of the law is not imperiled upon the ground that such a construction makes it interfere with vested rights; because, until final judgment against the garnishee, the plaintiff does not acquire a vested right to the funds impounded.</p> <p>2. At the hearing of a certiorari, no other errors shall be insisted upon in the argument by counsel, or passed upon by the court, than those which are stated in the petition and answer.</p> <p>(а) A statement in the answer of the justice, that “it was urged by the: counsel for defendant in certiorari . . that said act was unconstitutional,” is not sufficient to invoke a ruling by the judge of the superior-court as to the constitutionality of the statute.</p> <p>(б) It was proper for the judge of the superior court to refuse to eonsider a special request, filed by counsel for the defendant in certiorari at the hearing in the superior court, containing- various grounds of attack on the constitutionality of the statute, inasmuch as such a document was not a part of the petition or answer.</p> <p>3. Where it is apparent that the question as to the constitutionality of an act of the General Assembly was not properly made in the court below, this court will not certify such question to the Supreme Court for instruction.</p>

<p>Action for damages, from city court of Atlanta — Judge Reid. June 22, 1907.</p>

<p>1. This court approves the following construction of subsection 2 of section 420 of the Penal Code, relating to the running of freight-trains on the Sabbath day as given to the jury by the trial judge: “Where a train whieh is running on a bona fide, practicable schedule, leaving the starting, point on Saturday night, scheduled to reach its destination before 8 o’clock Sunday morning, is detained by unavoidable circumstances, so that it can not reach its destination by 8 o’clock Sunday morning, it can, nevertheless, continue to run even after 8 o’clock Sunday morning, until it reaches its destination, without violating the law. In determining what is unavoidable, the movement of this train should not be considered as an isolated train running over the road and leaving out of consideration other trains, but this train should be considered in relation to other trains, and as one unit in a complex whole.”</p> <p>2. It being admitted that a freight-train did run on Sunday morning after 8 o’clock, the burden was on the defendant to show that this was not done in violation of the statute. This burden is not successfully carried. by showing that the schedule on which the train was running was capable of being complied with, and was ordinarily carried out, but that in this particular instance the train was prevented from completing its trip within the schedule time, by unavoidable delays in waiting for ■other trains which were themselves delayed. The evidence should go further and show that the delays of the other trains, causing the delay of this particular train, were themselves unavoidable. Especially is this true where the defendant admits that the trains were frequently delayed in making- the schedule on Sundays, and no effort had been made to remedy the evil.</p> <p>3. The railway officials' should in good faith endeavor to avoid the necessity that ft freight train, duly started on Saturday night, should have to run after eight o’clock Sunday morning to reach destination; but a mere failure to exercise ordinary care in this respect is not necessarily ■criminal. An instruction to the jury which made lack of ordinary care, ■and not lack of good faith and honest endeavor, the test of criminality was erroneous, and sufficiently material to justify the grant of a new trial. (Hill, C. J., dissents.)</p>

<p>Certiorari, from Houston superior court — Judge Felton. October 11, 1907.</p>

<p>Despite the broad discretion of the jury in assessing damages in cases of personal injury, the trial judge may grant a motion for a new trial on the general grounds when, in his opinion, the verdict is unreasonably too large or too small; and this court will interfere with that discretion only in cases of manifest abuse.</p>

<p>1. Where a suit is instituted or defended by the personal representative of a deceased or insane person, the opposite party is not competent to testify in his own favor to the non-existence of transactions or communications alleged to have taken place between him and the deceased.</p> <p>2. A note under seal imports a consideration; but the maker may show that the consideration has failed. In a suit upon such a note the burden of proving a failure of consideration is on the defendant. If the defendant shows that the consideration of the note was a promise of the payee to do certain things in the future, the burden is still on him, in order to make a defense of failure of consideration complete, to show that the promise was broken.</p> <p>3. There was no proof authorizing a recovery of attorney’s fees.</p>

<p>1. Where a petition as originally -filed has the fault of duplicity, in that it sets up in one count allegations suitable to an action against the carrier receiving the goods “as in good order,” and also to an action against it upon a common-law liability for the loss of the goods, and a special demurrer calls attention to this dereliction, the plaintiff may save his suit from dismissal, by filing an amendment showing his election to proceed upon only one of the theories.</p> <p>2. A contract of carriage, though made in another State, is not necessarily governed by the laws of that State in matters of construction and effect,, where the contract is to be partly performed in this State. This is especially true as to requirements which are to be wholly performed in this State.</p> <p>(а) Contracts contrary to the policy of our laws, though valid at the place where made, will not be enforced by the courts of .this State. Especially is this true where the conflict as to the validity of such contracts arises, not because of any statute of the State where the contract is made, but because the courts of that State differ with the courts of this State as to a principle of the common law.</p> <p>(б) At common law, common carriers could not contract against their own negligence; and in this State such contracts are held to be contrary to public policy.</p> <p>3. In order for a carrier to avail himself of an exception under a special contract, to avoid liability for loss or damage to a shipment of goods, he must show that the loss or damage came within the exception, and that his own negligence did not contribute to it.</p> <p>(a) The foregoing is a rule of evidence.</p> <p>(6) As to all matters affecting the remedy, including the evidence, and therefore the burden of proof, the laws of the forum govern, even as to suits on contracts made in other States.</p> <p>4. Where goods pass over the lines of several connecting carriers and arrive at destination damaged, in the absence of proof showing that the damage occurred on some other line, there is a presumption that it was done by the last carrier.</p> <p>5. The evidence authorized the verdict.</p>

<p>1. Niceties of pleading are not required in justices’ courts. Consequently, a variance between tbe statement in a justice’s court summons that a sandy yellow beifer two and a half yeai’s old was killed, and proof that a sandy yellow heifer one and a half years old was killed, is not material. The difference in age does not affect the identity of the property injured, in view of the proof of other descriptive averments.</p> <p>2. The killing of one’s live stock is an injury or damage .to his personal property. The word “damages” in article 6, section 7, paragraph 2, of the constitution, defining the jurisdiction of justices’ courts, refers only to the property, and' not to the owner; but damage to personal property includes as well its total destruction ■ as it does an injury thereto. The damage arises from the interference with the owner’s right to the legal and proper use of his own.</p> <p>'3. There was no error in refusing to sanction the petition for certiorari and to order issuance of the writ.</p>

<p>Indictment for burglary, from Harris superior court — Judge Martin. November 23, 1907.</p>

<p>Certiorari, from Ben Hill superior court — Judge Whipple. November 22, 1907.</p>

<p>Indictment for arson, from Houston superior court — Judge Felton. December 18, 1907.</p>

<p>1. There is no provision of law requiring a solicitor-general to represent the municipal corporations within his judicial circuit, even though the case in question be quasi criminal. The solicitor-general, as such, is, in every ease in the superior coqrt to which the State is a party, her representative; but in eases in which the State is not a party, lie appears only in his capacity as attorney at law. Failure to serve the solicitor-general, as such, with notice of the sanction of the writ of certiorari, directed to a municipal corporation, is no ground for dismissing such certiorari, nor for dismissing a writ of error to this court.</p> <p>'2. A writ of error will not be dismissed upon the ground that the bill of exceptions was not certified in the time allowed by law, when it appears by the entry of the presiding judge upon the bill of exceptions that it was originally tendered within the time prescribed by law, and, having been returned to counsel for correction, was again received by the judge within ten days, corrected as required, and thereupon was certified and signed by him.</p> <p>.3. Where a writ of certiorari is sought, to correct a judgment of a recorder’s court or other police court of a town or city, by whatever name known, the petitioner for certiorari (unless from his poverty he is unable to give bond) must file a bond “conditioned for the personal appearance of the defendant to abide the final order, judgment, or sentence of said court, or of the superior court in said ease.” (Acts 1902, p. 105.) Such bond should be payable to the municipal corporation under which such municipal court exists, and be in an amount and with surety acceptable to and approved by the clerk of that court, or, if no clerk, by the officer of said town or city who may have rendered the judgment of • which complaint is made.</p> <p>4. Where such bond is not approved by the clerk, or by the police judge or other municipal officer who rendered the judgment, or where the condition of the bond is not in the terms provided by law, it is not error to dismiss the certiorari.</p>

<p>As to the venue this ease is controlled by Williams v. State, 105 Ga. 743.</p>

<p>1. Under the Penal Code, §243, as amended by the act of 1907, the forgery of any writing, not otherwise provided for in the Penal Code, or the uttering as true said forged writing, with intent to defraud, is made penal. Any extrinsic facts requisite to render the writing efficient as the means of consummating a fraud need not appear on the face of the indictment, but can be shown by evidence.</p> <p>2. The indictment set out in the language of the statute an instrument in. writing which is, by the terms of the statute, the subject-matter of forgery.</p> <p>3. The description of the property which the maker of a written contract agrees to sell a named person or his assigns is sufficiently certain when it shows what property is intended to be conveyed, and when, by the aid of parol evidence, its precise location is capable of ascertainment,, and its identity can thus be established.</p>

<p>Indictment for misdemeanor, from city court of Savannah — ■ Judge Norwood. December 21, 1907.</p>

<p>Accusation of misdemeanor, from city court of Newnan — Judge Freeman. January 7, 1908.</p>

<p>When a ease not within the jurisdiction of this court is lodged in its files, upon discovery by this court of its lack of jurisdiction, it Will order either that the case be peremptorily dismissed from the files or that it he transmitted to the Supreme Court, as the interests of justice in the particular ease may require.</p>

<p>1. When a demurrer containing several grounds (some of the grounds being directed to the merits, and some special in their nature) is sustained and the petition is dismissed, there is no presumption that the ruling was based upon the special grounds of the demurrer rather than rtpon the general, but the judgment will be treated as sustaining the demurrer as a whole and upon all of the grounds therein contained, and the judgment of dismissal will be affirmed, if this judgment was right for any reason which was presented by the general demurrer. No reference is here made to the power of this court to give direction as to amendment in connection with the judgment in such a case.</p> <p>2. The nature of an action is not determined by the designation of the pleader. “It is, in fact, immaterial by what name he calls his suit, or whether he gives it any name at all.” The character and classification of an action depends upon the intrinsic' contents of the petition, its recitals of fact, the nature of the wrong sought to be remedied, and the quality of the remedy invoked.</p> <p>3. The remedy provided in the act approved August 23, 1905 (Acts of 1905, p. 120) entitled “An act to further extend the powers of the railroad commission of this State, and to confer upon the commission the-power to regulate the time and manner within which the several railroads in this State shall receive, receipt for, forward, and deliver to its destination all freights of every character, which may be tendered or received by them for transportation; to provide a penalty for noncompliance with any and all reasonable rules, regulations, and orders prescribed by the said commission in the execution of these powers, and for other purposes,” is exclusive of any other mode of procedure for the collection of damages arising from a breach of the carrier’s public duty to furnish cars for the transportation of freight.</p>

<p>Indictment for running freight-train on Sunday, from Dade superior court- — Judge Fite. March 22, 1907.</p>

<p>Action -upon insurance policy, from city court of - Atlanta — Judge Beid. May 1, 1907.</p>

<p>* ertiorari, from Pike superior court- — Judge Beagan. April 39,</p>

<p>1. It is error to grant a nonsuit if a verdict would be authorized for any amount of a plaintiff’s demand, where the nature of the facts proved corresponds with the ease laid in the petition. A nonsuit should not be-awarded, even though evidence be introduced in behalf of the plaintiff which is vague and contradictory, if a recovery for any amount, no matter how small, may be authorized by any reasonable inference which may be drawn by the jury from any of the testimony. The grant of a. nonsuit is a matter of law. The grant of a new trial is discretionary. A. nonsuit should not be granted if a plaintiff has proved his case as. laid, even though in the same case a new trial might very properly he granted.</p> <p>2. Under the provisions of section 4 of the act of Congress approved Febru- ■ ary 13, 1893, the master of a vessel engaged by charter-party for the transportation of a cargo of lumber is not authorized to refuse to sign bills of lading for the consignor because a demand for demurrage, claimed to be due his vessel, is not paid.</p> <p>(а) Consequently, a claim for demurrage for delay in clearing a port,, caused by the efforts of the master .of the ship to collect another claim for demurrage, even though the latter be just, is not chargeable to the charterers, nor collectible by law.</p> <p>(б) A recovery of the stipulated demurrage upon this ground of the plaintiffs’ petition is precluded in this case, by the terms of the charter-party.</p>

<p>1. In a proceeding by scire facias to revive a dormant judgment, the defendant is absolutely precluded from going behind the. judgment and offering in defense to the scire facias any matter which existed before the rendition of the original judgment, and which might have been presented in the former proceeding. He can not defend by showing that he was not a member of a partnership against which a judgment, regular in all other respects, has been rendered; nor can he show that he never owed the plaintiffs anything.</p> <p>2. A judgment in personam, rendered against a defendant without notice to him or an appearance by him, is without jurisdiction and is entirely void.</p> <p>{a) It is a good defense to a scire facias that the defendant was not served and did not in any way appear in the original suit.</p> <p>(6) Where the record of a court, whether because lost or otherwise, is silent as to service, and a duly entered judgment appears thereon, it will be presumed, until the contrary appears, that sex-vice was made on the defendant; but the defendant himself is, as a general rule, competent to testify in x-ebuttal of this presumption.</p>

Certiorari, from Fulton superior court — Judge Pendleton. June 25, 1907. This suit was for a balance due upon an account for groceries. The defendant pleaded that he was but fifteen years old when the goods were bought, and but seventeen when the suit was commenced; and this was not contradicted. There was a dispute as to whether the goods were sold on the credit of the defendant or on that of his mother.

Appeal, from llabun superior court — Judge Kimsey. June 13, 1907. The Chattanooga Machinery Company brought three suits against the Carolina Locust Pin and Mica Company, in a justice’s court. The proceedings began by attachments, and were based on three promissory notes made by the defendant and payable to the order of plaintiff. The defendant replevied the property and appeared in the justice’s court and filed sworn answers.

<p>1. The law of this case is decided by the Supreme Court in Kavanaugh v. Southern Railway Co., 120 Ga. 62 (47 S. E. 526).</p> <p>2. There was no material error in the charge of the court or in the admission of testimony, and the verdict is fully warranted by the evidence.</p>

<p>Certiorari, from Bichmond superior court — Judge Hammond. June 25, 1907.</p>

<p>Action for breach of contract, from city court of Atlanta— Judge Beid. June 10, 1907.</p>

<p>There' was no error of law; and the evidence demanded the verdict for the plaintiff, as directed by the court.</p>

<p>Complaint, from city court of Columbus — Judge Willis. July 13, 1907.</p>

<p>1. A certificate of deposit is a subsisting chose in action and represents the fund it describes, so that a delivery of it as a gift constitutes an equitable assignment of the money for which it calls.</p> <p>2. A brother who held a certificate of deposit issued by a hank and payable to his order, during his last illness and very shortly before his death, delivered the certificate to a brother, with proper words of gift, hut failed to indorse the certificate at the time of delivery. Subsequently he indorsed the certificate, and had the sanie deposited in a bank to his credit. Contemporaneously with the deposit, he gave to his brother a cheek on the hank for the full amount of the certificate deposited. Held: (a) The delivery of the certificate of deposit constituted a valid gift causa mortis. (6) The subsequent execution and delivery of the check for the exact amount of the certificate did not affect the validity of the gift, but was the means adopted by the donor of perfecting the gift, (e) Even if the gift had not been fully consummated by the delivery of the certificate of deposit, the giving of the check operated as an equitable assignment of the certificate, and, consequently, an assignment of the fund, (d) The failure of the donee to present the check to the bank for payment, until after the death of the donor, did not operate as a revocation of the gift.</p> <p>3. A party who attacks the validity of a gift, on the ground that the donor was'mentally incapable of making the gift, or that the gift was procured by fraud or undue influence, has the burden of- proving his charge. There is no evidence in this case tending to show either mental incapacity or fraud or undue influence.</p> <p>4. The verdict as directed by the court was demanded by the evidence.</p>

<p>Complaint, from city court of Nashville — Judge Peeples. September 3, 1907.</p>

<p>Complaint, from city court of Dublin — Judge Burch. August 6, 1907.</p>

<p>Complaint, from city court of Tifton — Judge Eve. September 28, 1907.</p>

<p>1. The relationship of principal and agent, being confidential and fiduciary in character, demands of the a'gent the utmost loyalty and good faith to his principal. Any breach of this good faith whereby the principal suffers any disadvantage and the agent reaps any benefit is a fraud of such nature as to preclude the agent from taking or retaining the benefit; also from claiming his commissions.</p> <p>2. Fraud voids contracts. Fraud sufiicient to destroy the contract may be shown by parol, though the contract be in writing.</p> <p>3. A contract, no matter how solemnly expressed, obtained by an agent from his principal through a violation of the loyalty and-good faith imposed by the confidential relation, is void and is not enforceable in law or in equity.</p> <p>4. An agent who secretly undertakes to represent both parties to a transaction is not permitted to recover commissions from either of them. This rule applies to real-estate agents as well as others.</p>

<p>’The petition was sufficiently definite to withstand the special demurrers. Reasonable definiteness and certainty in pleading is all that should be required; and factitious demands by special demurrer should not be encouraged.</p>

<p>Certiorari, from Macon superior court — Judge Littlejohn. November 11, 1907.</p>

<p>Certiorari, from Gwinnett superior court — Judge Brand. December 4, 1907.</p>

<p>Action for damages, from city court of Floyd county — Judge Hamilton. December 9, 1907.</p>

<p>1. An action ex contractu may be maintained against a carrier for damages done a shipment while in its possession, although it received the shipment from another carrier, unless it appears that the initial carrier made an express contract to deliver at destination.</p> <p>2. A carrier can not justify a delay in delivery, arising from a failure on its part to place a solid car shipment where it could be unloaded after it arrived at destination, on the ground that the consignee did not tender the freight, unless he was given notice of the arrival of the car and was requested to pay the freight. »</p> <p>3. A justice’s court has jurisdiction of suits, when not more than $100 principal is claimed, for damages arising through physical injuries to personal property, animate or inanimate, whether the action be ex contractu or ex delicto.</p>

<p>Action for damages, from city court of Atlanta — Judge Reid. January 30, 1907.</p>

<p>Transmitted to Supreme Court,</p>

<p>1. Pal’d evidence is admissible, either to explain ambiguities in a written contract, or to determine, where a writing is ambiguous, whether such writing in fact indicates a contract, or a mere memorandum — of itself raises the presumption of an agreement between the parties, or manifests a mere tentative proposition on the part of one of the parties.</p> <p>2. A contract may be partly in writing and partly verbal. In such a case all evidence tending to show what the entire contract really was should be admitted.</p> <p>S. While full latitude of expression should be allowed the trial judge in ruling upon the admissibility of evidence, language prejudicial in its effect upon the rights of either party should be studiously avoided. And where the language of the court in rulings made during the trial clearly depreciates the contention of either party, and yet the evidence supporting such contention, as well as the contention itself, is permitted to go-to the jury, they should be so instructed thereafter as to leave the contention in as fair a light before them as if such prejudicial remarks, had not been made.</p> <p>4. It is the duty of the court to construe written contracts. But it is not for the court to construe any part of a contract which depends, for its existence and completeness, upon parol testimony as.to facts which are in dispute.</p> <p>5. A contract resting in parol must be assented to by both parties in the same sense. Mutual assent is assent to the same thing in the same sense, under a common understanding of the stipulations agreed to.</p> <p>6. The burden is upon him who seeks a recovery upon a contract to prove, the terms and proper execution of such contract, by the preponderance of evidence; and upon request the jury should be charged to this effect.</p> <p>7. The plaintiff having failed to prove his case as laid, a verdict in his favor was unwarranted.</p>

<p>1. The judge of the city court of Barnesville is not disqualified from presiding, or from entering a judgment upon a scire facias to forfeit a criminal recognizance, although he is ex-officio clerk of said court and individually pecuniarily interested in the costs in that case, and perhaps in the collection of other costs which may be due to him in other cases, even though the collectibility of such latter costs may be, to some extent, dependent upon a judgment forfeiting the recognizance.</p> <p>(а) That construction of'a statute is to be preferred which will give effect' .to the legislative intent and preserve the act, rather than that construction which will necessarily destroy it.</p> <p>(б) Costs'are the fees allowed officers of courts for their services in a judicial proceeding. Though incidental to a suit, they are independent of the issue. There is no liability upon a party for costs until judgment fixing that liability; and pecuniary interest in costs, the amount of -which is fixed by law, is not synonymous with pecuniary interest in a case.</p> <p>2. Judgment absolute can not be entered against the bail on a criminal recognizance, or appearance bond, until it appears from the record that he has had an opportunity of producing' the body of his prineipál, or of showing cause why 1ns principal does not appear.</p> <p>3. The statement in a bond, that the principal is bound to appear “to answer the charge of larceny from the person,” sufficiently states the offense against the laws of the State, with which the defendant principal is charged, and which he is required to answer.</p>

<p>A minor can not bind himself by an executory contract for necessaries.</p>

<p>The instruction of the -trial judge upon the subject of alibi is approved.</p>

<p>1. A fire-insurance company which, through its agent, has either actual or constructive notice of the existence of outstanding insurance upon property when it issues a policy upon the same property, is estopped from insisting upon a clause in the policy whereby it is to be void if there be outstanding insurance.</p> <p>2. An indorsement upon an insurance policy, susceptible of two constructions, will be construed most strongly against the insurer.</p>