Volume 4 — Georgia Appellate Reports

<p>Certiorari, from Floyd superior court — Judge Wright. June 7, 1907.</p>

<p>Even if in any ease a separate suit may be maintained upon a replevy bond executed as a part of tlie defense to.a distress warrant, under Civil Code, §4819, no recovery can be had unless it appears that the rent action has terminated by a judgment in favor of the landlord.</p>

<p>Action for damages, from city court of Reidsville — Judge Morgan. August 31, 1907.</p>

<p>Action for, slander, from city court of Atlanta — Judge Calhoun. July 13, 1907.</p>

<p>Action on bond, from city court of Albany — Judge Crosland. September 14, 1907.</p> <p>In a suit on a forthcoming bond, Hobbs & Livingston obtained a Judgment against the Minnesota" Lumber Company; and execution was issued and levied upon certain personal property described in the levy and in the bond. This property was claimed by Clements, who executed a forthcoming bond, with the United States Fidelity and Guaranty Company as surety. Subsequently the claim, interposed by Clements was withdrawn and the property was readvertised for sale, and, not being produced at the time and place of sale, in accordance with the terms of the bond, suit was filed against the surety by Murphy, sheriff, for the use of Hobbs & Livingston. The defendant filed a demurrer on the following grounds: (1) The petition is defective in that there is a non-joinder of parties defendant. The contract declared upon shows, that one T. B. •Clements is the principal obligor, and that this defendant is only surety thereon, and that the contract is joint and not severable; and therefore a judgment can not be rendered against this defendant, unless judgment is rendered against the principal before or at the same time, there being no severable liability against this defendant, under said bond. (2) It affirmatively appears that the bond declared upon was never attested, approved, or accepted by the levying officer, by any indorsement or signature thereon by said officer. The demurrer was overruled, and the defendant excepted.</p> <p>The defendant pleaded non est factum as to Clements, the principal obligor in the bond; and on demurrer this plea was stricken, and the defendant excepted. The defendant further, as a special plea, set up its inability to deliver the property according to the terms of the bond, at the time and place of sale, by reason of the following facts: That immediately after the filing of the claim and the execution of the bond sued upon, the property levied upon and described therein was surrendered- by the claimant to the Minnesota Lumber Company, defendant in execution, for its use. Shortly afterwards, the Minnesota Lumber Company was adjudged an involuntary bankrupt. Its trustee in bankruptcy seized and sold this property, and applied the proceeds in satisfaction of liens superior to that of Hobbs & Livingston. The claim of Clements was withdrawn in the city court of Moultrie, where it was tiled prior to the trustee’s sale, and the purchaser at the sale acquired a legal title to the property. There are other defenses set up in the voluminous plea of the defendant, but the foregoing are alone material.</p> <p>The case was tried by the judge without the intervention of a jury, upon an agreed statement of facts, substantially as follows: 1. On February 16, 1904, a common-law judgment was rendered in the' city court of Moultrie in favor of Hobbs S¿ Livingston against the Minnesota Lumber Company for $1,820 principal, and $180 attorney’s fees. The Minnesota Lumber Company carried the case to the Supreme Court, where it was affirmed on condition that the attorney’s fees be written off within a certain time. This was done as required, and the judgment of the Supreme Court was then made the judgment of the lower court. 2. The execution in favor of Hobbs & Livingston against the Minnesota Lumber Company was entered on the general execution docket of Colquitt county on March 2, 1904, and was also duly entered on the execution docket of the city court of Moultrie. This execution was properly levied on April 29, 1904, by the deputy sheriff ■of the city court of Moultrie, who was also deputy sheriff of Colquitt county, on the property set forth in the copy of the levy and the copy of the bond attached to the original petition in the instant case. 3. The sheriff of the city court of Moultrie duly advertised this property and was proceeding to sell it, as set out in the original petition, when the sale was arrested by the claim of Clements and the bond; and the sheriff, on account of the claim and this 'bond, failed to sell the property. The sheriff approved this bond and accepted it, though he did not write his approval on it. . He did write his approval on the claim bond (which was given at the same time), in the terms of the law, and on the same piece of paper, both the claim and the bond being written on the same piece of paper, the one following the other, and the security on each being the same. 4. The claim was voluntarily withdrawn by Clements on July 10, 1905, and the withdrawal entered on the record of the city court of Moultrie. 5. The sheriff of Colquitt county, during the month of May, again legally advertised the said property for sale on the first Tuesday in June, 1907. The property was not forthcoming, and for that reason could not be sold. It was not produced at the time and place of. sale by Clements or any one else. 6. After giving the bond, the property therein described remained where it was before and at the time of the levy, and continued to be used by the Minnesota Lumber Company. 7. On March 5, 1905, the Minnesota Lumber Company, upon the petition of unsecured creditors, was adjudicated a bankrupt, and Hobbs & Livingston were scheduled as lien creditors by the Minnesota Lumber Company in the bankruptcy proceedings. Hobbs & Livingston never at any time proved their claim in the bankruptcy court, nor in anywise recognized that court or had anything to do with it. No order was ever taken making them parties to that litigation. 8. On March 11, 1903, the Minnesota Lumber Company executed and delivered to the Southern Pine Company of Georgia a valid mortgage upon practically all its property, including that described in the levy of the sheriff and the forthcoming bond, for $15,000. This mortgage was duly recorded, and the property covered by it, exclusive of that described in the levy and bond in this case, at the time of the levy of this fi. fa. was worth at least $25,000. The value of the property levied on, and for which the forthcoming bond was given, was $2,500 at the time the claim was made and the forthcoming bond given. $4,000 was due to the Southern Pine Company on said mortgage by the Minnesota Lumber Company, at the time of the adjudication in bankruptcy. The Southern Pine Company proved its claim in bankruptcy. 9. On July 10, 1907, the referee ordered that all the property of the bankrupt, except specified real estate, be sold, free from all liens and incumbrances, and that said liens and incumbrances be discharged as against the property and attach upon the proceeds thereof, with the same right to creditors against the proceeds as they had against the property. This order was passed at a meeting of the creditors of the bankrupt, after notice had been given to all the creditors scheduled by him, including Hobbs & Livingston. On July 17, 1905, after due advertisement according to the order of the bankrupt court, the property of the bankrupt, including that described in the levy and the forthcoming bond in the instant case, except one locomotive engine described in said levy and bond, was sold at •auction in Colquitt county for $562; and on July 31, 1905, the said locomotive engine was sold by the trustee in bankruptcy for $331. 10. On August 7, 1905, at a legal meeting "of the creditors of the bankrupt, held for the purpose of hearing the trustee’s report, the sale of all of the said property was confirmed unto the Southern Pine Company of Georgia, it being the purchaser at the trustee’s sale and thereby acquiring the title to all the property of the bankrupt, so far as the bankrupt court could vest title, including the property described in the levy of the sheriff and the forthcoming bond, and the proceeds of the sale were, under order of the referee, distributed among the creditors of the bankrupt, holding liens upon the property, which liens, together with the cost of administration by the bankrupt court, consumed all of the assets of the Minnesota Lumber Company. All the property did 'not bring enough to pay in full the mortgage of the Southern Pine Company and the liens of the laborers-and materialmen, in addition to the cost of administration in bankruptcy. The property brought at the trustee’s sale $18,000. 11. All of the creditors who participated in the distribution of the assets of the Minnesota Lumber Company, with the exception of the Citizens Bank of Valdosta, the Merchants Bank of Valdosta, and the Southern Pine Company of Georgia, held liens, either as laborers or supply men, which, while they were superior in dignity to the liens of Hobbs & Livingston, were junior as to time; that is, those debts were contracted subsequently to the levy of the fi. fa. By statute, however, they were superior liens. 12. Before the Minnesota Lumber Company was adjudged bankrupt, Clements was adjudged a bankrupt by the United States District Court of Minnesota.</p> <p>A judgment was rendered by the trial court against the United States Fidelity and Guaranty Company for principal and interest; and it excepted, making numerous assignments of error. Those deemed material are sufficiently indicated in the foregoing statement.</p>

<p>Action for damages, from city court of Richmond county. Judge Eve. September 18, 1907v</p>

<p>Money rule, from city court of Mount Vernon — Judge Geiger. September 9, 1907.</p>

<p>Certiorari, from Fulton superior court — Judge Ellis. October 4, 1907.</p>

<p>Certiorari, from Wilkes superior court — -Judge Worley. November 7, 1907.</p>

<p>Appeal, from Wilcox superior court — Judge Whipple. November 9, 1907.</p>

<p>Complaint, from city court of Dublin — Judge Burch. October 21, 1907.</p> <p>C. S. Pope sued W. W. Wilkes on a promissory note for $95.33 principal, appearing to have been executed by the defendant as sole maker, and payable to Emma Wilkes or bearer, which the plaintiff alleged had been transferred to him for value before maturity and without notice of any defense. The defendant filed a plea of non est factum. At the trial he admitted that he had signed the note; -and he offered to testify that, having agreed with Charles Wilkes, the husband of Mrs. Emma Wilkes, to become accommodation security for her at the First National Bank of Dublin for $70, he signed it with the understanding that she was to sign it as principal, above his signature, and that it was to be filled in for the amount of $70 and he made payable to the bank, blank spaces being left for that purpose; that “C. S. Pope, the transferee of the note, was not present when it was made,” and, so far as the witness knew, did not have notice of these facts. The court excluded this testimony, on the grounds, that it did not appear that the plaintiff had notice of the facts stated, and that under the Civil Code, §3940, which provides that “when one of two innocent persons must suffer by the act of a third person, he who puts it in the power of the third person to inflict the injury must bear the loss,” the defendant should not be heard to complain. There was no further testimony. The court directed a verdict in favor of the plaintiff; to which, as well as to the exclusion of the testimony offered, the defendant excepted.</p>

<p>1. Even the first grant of a new trial will be reversed, if the pleadings and the proof affirmatively disclose that the verdict rendered represents the only result legally possible in the ease.</p> <p>2. An action for money had and received lies, in case the defendant has taken to his use money which ex aequo et bono belongs to the plaintiff. It needs for its support no actual contractual relation, for the law will imply a quasi-contraetual relation to uphold it, whenever the circumstances so require.</p> <p>3. Where the action proceeds upon the theory that the plaintiff has paid the defendant money under a mistake of fact, it must appear that such a mistake did really exist, that the plaintiff, at the time of the payment did not know, or at least that he did not recollect that he did not owe the money; otherwise the payment will be held to be not recoverable.</p> <p>4. In such cases the plaintiff must show that he was laboring under a mistake as to the facts, and not merely that he was ignorant of the means of proving the facts which would show his non-liability.</p> <p>5. Although the plaintiff has paid the defendant money under a mutual mistake, yet if, acting on the payment, the defendant has so changed his situation that the mistake can not be rectified without entailing on him a loss of the sum paid, the action will not lie.</p> <p>6. In the present case the petition and the proof show that the payment by the plaintiff to the defendant was voluntary, and not .by mistake; and the proof further discloses that, acting upon faith of the payment, the defendant had yielded to a third person property equal in value to the sum claimed; therefore a verdict for the defendant was demanded, and the court erred in granting the plaintiff a new trial.</p>

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

<p>Certiorari, from Johnson superior court — Judge Rawlings. November 30, 1907.</p>

<p>Certiorari, from Glynn superior court — Judge Parker. December 5, 1907.</p>

<p>1. Where a consignment of property is made to a factor for sale, and he makes advances thereon with the consent of or by the direction of his principal, an agency coupled with an interest arises.</p> <p>2. Ordinarily an agent must be guided wholly by the wishes or directions expressed by his principal, but in cases of an agency coupled with an interest, unreasonable instructions, detrimental to the agent’s interests, may be disregarded.</p> <p>3. Even if the factor exceeds his power and sells the property in an un- ’ warranted manner, no cause of action flows to the principal, unless some damage ensues to him on account of the agent’s misconduct.</p> <p>4. Where the only legal verdict possible in a case has been gendered, the action of the trial court in granting a new trial will be reversed.</p>

<p>Foreclosure of lien, from city court of Dublin — Judge Burch. October 23, 190?.</p>

<p>1. A witness testifying by interrogatories to. the correctness of an account, as to the items of which he has personal knowledge, may include, as a part of his testimony, a copy of the account, thereby identifying the subject-matter of his testimony.</p> <p>2. “An objection that a document offered in evidence was not admissible, because the execution of the same was not proved as required by law, being overruled, the presumption is that the execution was duly proved, unless the contrary affirmatively appears, either by an authentic state- , ment that there was no evidence of execution, or by setting out such, evidence on that subject as was adduced to the presiding judge. Mere preliminary evidence upon such a question is not for insertion in the brief of evidence requisite to support a motion for a new trial. Consequently, its absence from the brief does not warrant the conclusion that the overruled objection should have been sustained.”</p> <p>3. -Where, there is a conflict in the evidence as to whether a third person was agent for one of the parties, the court may admit testimony as to transactions with the alleged agent, and submit it to the jury, with appropriate instructions as to its relevancy being conditioned upon their finding that the agency did in fact exist.</p> <p>4. Minor and immaterial errors in the admission of testimony will not work the reversal of a verdict fully supported by the evidence.</p>

<p>Accusation of keeping a gaming-house, from city court of Dawson — Judge Edwards. December 16, 1907.</p> <p>The prosecutor (a bailiff) testified, that he, with a policeman and two other men, went at night to the house of Lavonia Boyd, the accused, and saw a crowd of negroes squatting on the floor, and heard them saying, “I’ll bet you a quarter better,” or “half a dollar better.” He heard Lavonia Boyd say “You must pay me.” Some of'the negroes said “There’s the white folks out there.” Somebody outside the house shot a pistol just as the prosecutor’s party were entering the back and front doors of the house, and this seemed to frighten the negroes. Ten of them were arrested and others ran off. The prosecutor saw one of the negroes pick up some small change from a quilt on the floor. None of the witnesses saw any cards or any other indication of gambling than has been stated. There was evidence as to confessions made by the accused, to the effect that the negroes gambled with cards at her house that night, and paid her for the rent of the house.</p>

<p>Indictment for murder, from Oglethorpe superior court — Judge Worley. December 12, 1907.</p>

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

<p>Complaint, from city court of Nashville — Judge Peeples. January 10, 1908.</p>

<p>Accusation of misdemeanor, from city court of Hartwell — Judge Hodges. December 16, 1907.</p>

<p>1. A distress warrant is amendable under the same rules and to the same extent as a declaration or petition in a suit. But a distress warrant sued out for the rent of a described tract of land for the year 1907 is not amendable by substituting therefor rent due for three different tracts of land for the year 1906. The original distress warrant may, even by unnecessary averments, clearly show that the proposed amendment sets up a new and distinct cause of action.</p> <p>2. “The contents of an amendment, as compared with what is already in the declaration, may tend to show, either that the plaintiff is endeavoring to follow up a cause of action, or supposed cause, which he had in view when the declaration was prepared and filed, or, that having since discovered that no such cause exists or is maintainable, he has concluded to shift his ground and bring in surreptitiously a new and distinct cause of action. Ellison v. Ga. R. Go., 87 Ga. 708 (13 S. E. 809).”</p> <p>3. There was no error in directing the verdict.</p>

<p>1. In prosecutions for larceny, if the ownership of the stolen property is unknown to the grand jury, it may be so charged in the indictment; but if it appears upon the trial that it was in fact known, or that in the exercise of reasonable inquiry it might have been ascertained with such certainty as would have justified the grand jury in asserting it, there is a fatal variance. However, if it was unknown to the grand jury at the time of their action on the case, its subsequent discovery and proof on the trial will not constitute such a variance.</p> <p>2. The corpus delicti of a larceny may be proved by circumstantial evidence.</p> <p>3. As a general rule, in the prosecution of a particular crime, evidence tending to show that the defendant has committed other offences is not admissible; but where the testimony offered has a distinct relevancy to the ease on trial, it is not inadmissible merely because it also tends to show the defendant’s connection with some other criminal transaction.</p> <p>4. Minor and immaterial errors in the admission of testimony will not work a reversal.</p> <p>5. Trial judges should usually leave the examination of witnesses to the attorneys conducting the case. However, when the record fails to show any prejudice to the complaining party, a new trial will not he granted because the judge asked questions of witnesses.</p>

<p>Accusation of selling mortgaged property, from city court of Dublin. Judge Burch. January 13, 1908.</p>

<p>Accusation of assault and batteiw, from city court of Bainbridge —Judge Harrell. January 22, 1908.</p>

<p>Indictment for selling liquor, from Macon superior court— Judge Littlejohn. January 10, 1908.</p>

<p>Accusation of misdemeanor, from city court of Fitzgerald— Judge Jay. February 14, 1908.</p> <p>The accusation charged Davis Mobley with “the offense of misdemeanor, for that the said Davis Mobley, . . on the 7th day of September, 1907, . . did unlawfully, fraudulently, and with intent to cheat and defraud B. Y. Handley, contract with said B. V. Handley to work and labor for the said B. Y. Handley as a farm laborer, the said contract being as follows: that the said Davis Mobley should pick cotton for the said B. Y. Handley at sixty-five cents per one hundred pounds, beginning the first of September, 1907, and to work continuousty until he, the said Davis Mobley,paid by said work the full amount he was due the said B. Y. Handley; the said Davis Mobley then and there contracting with the said B. Y. Handley with the intent to procure money from the said B. Y. Handley and not to perform the services contracted for as aforesaid, and did, on the 7th day of September, 1907, after having so contracted, procure from the said B. Y. Handley one dollar and sixty-two cents, with the intent not to perform the said services, and did not perform the services contracted for; to the loss and damage of the said B. Y. Handley in the sum of one dollar and sixty-two cents; whereby the said Davis Mobley did then and there cheat and defraud said B. Y. Handley in the sum aforesaid, contrary to the laws of said State,” etc.</p> <p>B. Y. Handley testified: The defendant “had been working for-me all the year, and on December 17, 1907, which was Saturday,he wanted money. He owed me quite a lot of money, and I owed him $3.38 for some work he had done that week. He wanted $5, and I didn’t want to let him have it. I -had been paying him 60 cents per 100 pounds for picking cotton. That evening we made a new trade and I agreed to give him 65 cents per 100 pounds for all the cotton he picked. He agreed to pick, beginning on the 9th day of September, and to pick continuously until he should have paid me the amount I was then letting him have in excess of the amount I owed him for work done that week, and also other indebtedness he was due me. I let him have $5, which was $1.62 more than I owed him for thetwork already done that week after we traded as I have just stated. He agreed to pay it back first, piicking cotton, and to pick continuously until it was paid, and also until all he owed me was paid. I let him have the money, i. e. the $1.62, because I wanted him" to pick the cotton as he then promised. I let him have the $1.62 because I wanted to get my cotton picked, and I also had hope of getting him to work out the back indebtedness. The $1.62 was paid in Ben Hill county, Georgia, and the contract was made therein. He did not do any of the work nor offer to pay me the money I let him have, and I lost the $1.62.” The defendant stated to the jury: “I owed Mr. Handley, and I gave him all my furniture, and he credited my account with that. I would have paid Mr. Handley all I owed him, if he had given me time.”</p> <p>After verdict of guilty and before sentence, the defendant made a motion in arrest of judgment, on the ground that “there was no offense alleged in said accusation, it not being alleged therein that the said Davis Mobley had, without good or sufficient cause, failed and refused to carry out his contract.” To the overruling of this motion he excepted. He excepted also to the refusal of his motion for a new trial.</p>

<p>Action for damages, from city court of Atlanta — Judge Calhoun. July 13, 1907.</p>

<p>Certiorari, from Forsyth superior court — Judge Gober. August 37, 1907.</p>

<p>Action for damages, from city court of Sandersville — Judge Jordan. August 14, 1907.</p>

<p>Complaint, from city court of Atlanta — Judge Reid. September 21, 1907.</p> <p>The plaintiff sued for the price of two Hawle.y Down Draft furnaces which" it had contracted to install and did install at the defendant’s oil mill in Gulfport, Miss. The agreement was silent as to warranties, except so far as the specific designation of the particular make, size, style, etc., is to be regarded as a warranty. The defendant admitted contracting for the furnaces and that they were installed, and pleaded a failure of consideration, for that the furnaces were wholly worthless and did not accomplish the purposes for which they were intended; “that said furnace is an attachment to be attached to a boiler for the purpose of consumíag less fuel in making steam, entirely consuming the coal or other fuel used, and also consuming the smoke caused by the combustion; that said furnaces failed to accomplish either of these objects, and therefore were wholly worthless.” The jury rendered a small verdict in favor of the plaintiff, and it excepts. The further facts necessary to an understanding of the case appear'in the course of the opinion.</p>

<p>Complaint, from city court of Dublin — Judge Burch. September 10, 1907.</p>

<p>Foreclosure of lien, from city court of Douglas — Judge Boan. September 17, 1907.</p>

<p>Appeal, from Coffee superior court. — Judge Parker. October 8, 1907.</p>

<p>Appeal, from Troup superior court — Judge Freeman. . September 24, 1907.</p>

<p>1. When, by the sharp process of subtraction and elimination, which our laws favor, all of the issues between parties have been reduced to a single point, the law applicable to the single remaining issue should be administered. Evidence not material to the issue is irrelevant, and instructions upon the law, although correct in the abstract, if not applicable to that issue are erroneous. The law to be applied by the court must be law pertinent to the contested issue of fact.</p> <p>2. A plaintiff, by showing the delivery of his goods into the possession of a common carrier for the purpose of transportation, and establishing the fact of loss, raises a presumption of liability on the part of the defendant for their value, if the selfsame evidence does not show that the consequent loss was occasioned by the plaintiff’s own negligence. The presumption of liability raised by section 2264 of the Civil Code may be rebutted, if it appears that'the injury was caused by the plaintiff himself, whether the act which caused the injury be due to negligence or design. In other words, the provisions of that section have no reference to a ease where the loss is attributable, either in whole or in part, to the act of the shipper himself.</p> <p>•3. While a carrier is liable, as an insurer, for the loss of freight which he accepts for carriage, and while generally he is required to accept for carriage all freight properly packed and delivered to him for the purpose of transportation, still a carrier is not required to accept for shipment all freight which may be tendered. If a carrier knows an article tendered him for carriage is injurious to the public health, public peace, or morals, or is likely to destroy the property of others, or if the property tendered for shipment is in such condition that it can not safely be transported, a carrier has the right to decline to receive the proposed shipment.</p> <p>4. The court’s charge did not intimate any opinion as to what had been proved, or withdraw from the jury the determination of what facts were necessary to constitute negligence. The question of negligence was not involved in the ease, if the jury believed that the loss was caused by the act of the plaintiff itself. A carrier may be liable for the loss of freight, in spite of the most extraordinary diligence. But any shipper who, either before or after shipment, directly or indirectly, intentionally or unintentionally, causes the injury or destruction of his own property can not make the carrier pay for it.</p> <p>5. Evidence, whether objected to or not, can be as effectually withdrawn by means of the charge of the court as by a ruling during the course of the trial.</p> <p>6. The verdict for the defendant was demanded by the evidence. The charge of the court was clear and easy to be understood, and the only issues involved were fully and clearly presented. There may be some minor verbal inaccuracies, to be detected by a microscopic, grammatical analysis,'but these do not afford any legal ground for a reversal.</p>

Certiorari, from Fulton superior court — Judge Ellis, October 3, 1907. The American Investment Company had a justice-court execution in its favor levied upon a certain piano, as the property of one Charlie Brown, the defendant in fi. fa. Two- claims to the piano were interposed, — one by Hannah Brown and the other by the Cable Company.

<p>In a suit to recover damages against a street-ear company, where the allegation of negligence is the negligent movement of a car of the defendant, causing a sudden, violent, and unusual jerk, which threw the plaintiff across the seat of the ear, it was erroneous to give in charge to the jury the following instruction.: “If, in reviewing the testimony, you are satisfied that the plaintiff was injured by a sudden, violent, and unusual jerk, and that he could not, by the exercise of ordinary care and diligence, have protected himself against the consequences of this negligent act, then he would be entitled to recover.” The error in this instruction is twofold: Eirst, that a recovery could be predicated on proof of a sudden, violent, and unusual jerk. To make a jerk an act of culpable negligence- it must have been unnecessaiy at the time and place where it occurred, as well as violent and unusual. Second, that the charge contained an assumption by the judge and an instruction to the jury that the act mentioned constituted negligence; and that “this negligent act” had been proved.</p>

<p>A suit to recover damages for the malicious use of legal process in suing out and levying a distress warrant can not be maintained without proof of malice and want of probable cause; and it is essential that the petition to recover damages in such case should allege that the distress-warrant proceedings had terminated in favor of the defendant therein before his action for damages was filed.</p>

<p>Action for damages, from city court of Hall county — H. H. Dean, judge pro hac vice. October 19, 1907.</p>

<p>Money rule, from city court of Moultrie — E. L. Shipp, judge pro hac vice. November 12, 1907.</p> <p>The questions in this case arise on a rule to distribute money, upon the following agreed statement of facts: “On July 18, 1907, the Holmes-Hartsfield Company, a firm engaged in the furnishing of sawmills with provisions and other things necessary to carry on the work of sawmills, foreclosed their lien for supplies, as required by law, which lien execution was, on the 18th day of July, 1907, levied upon the following property [describing a certain sawmill, etc.], which proceedings were against Broome & Sellers. After-wards, to wit, on the 2d day of July, 1907, Baisden & Co. procured a purchase-money attachment against said property, which attachment was, on the 26th day of July,' 1907, . . executed by seizing, attaching, and levying upon said property; which proceedings were against Broome & Sellers. Both of said levies . . were by the sheriff of the city court of Moultrie. After both of said levies had been made by said sheriff, he advertised the same, as required by law, for sale under the purchase-money attachment of Baisden <& Co. Said property was, on the first Tuesday in October, 1907, sold by said sheriff to the highest bidder, for cash, under and by virtue of said purchase-money attachment, for the sum of $275.</p> <p>“On the 16th day of November, 1906, in the city court of Moultrie, J. H. Drake obtained a judgment upon a suit brought upon an open account, against R. J. Broome, one of the defendants in said lien foreclosure and said attachment, upon which judgment execution was issued on the 28th day of November, 1906, for the total sum of $61.25, including costs, which execution was entered on the execution docket of the city court of Moultrie, . . November 30, 1906, and . . also entered, on the same date, on the general execution docket of the superior court of Colquitt county. After said lien execution of the Holmes-Hartsfield Company and said purchase-money attachment of Baisden & Co. had been levied upon the property described, to wit, on the 10th day of September, 1907, A. W. Sellers, W. T. Tucker, John Eeagan, W. D. Thompson, N. A. Barksdale, and I. N. Barksdale, foreclosed their laborers’ liens, against the firm of Broome & Sellers, which executions were never levied upon any of the property, but were, on the 1st day of October, 1907, placed in said sheriff’s hands, with instructions to hold up the money derived from the sale of said property, for the purpose of paying said laborers’ liens. Afterwards, .to wit, on the 28th day of September, 1907, William Pope foreclosed his laborer’s lien against the said Broome & Sellers, and, on the 1st day of October, 1907, placed said lien foreclosure in said sheriff’s hands, with' instructions to hold up thé money derived from the sale of said property, for the payment of said lien foreclosure. The said liens were for the following sums [stated]. The said A. W. Sellers, who foreclosed said laborer’s lien as above stated, is a member of the defendant firm, Broome & Sellers; he having foreclosed said lien against himself and his partner R. J. Broome. Said sheriff has possession of said sum of money, to wit, $275. He refuses to apply said money to the payment of either of said lien executions or said purchase-money attachment, except on an order of the court directing him to do so. At the time Baisden & Co. sold said property to Broome & Sellers, the defendants gave a mortgage thereon for the purchase-money to plaintiffs, which mortgage was duly recorded and foreclosed, and execution thereon issued, on the 23d day of July, 1907; but said mortgage execution was never levied, but was placed in the hands of the same sheriff.”</p> <p>The judgment of the court was “that the money in the hands of the sheriff be paid out as follows: (1) To the laborers, as set out in the agreed statement of facts, together with the principal, interest, and costs due said laborers as therein specified, with the exception that A. W. Sellers gets nothing. ' (2) It is then ordered that the claim of Holmes-Hartsfield Company be paid, principal, interest, and costs. (3) It is then ordered that the claim of Baisden & Co. be paid, principal, interest, and costs. (4) The claim of J. H. Drake is declared to be inferior to the above-stated claims* The liens rank as above -set forth, to wit: laborers’ liens coming-first; Holmes-Hartsfield Company coming second; Baisden & Co. coming third, and Drake fourth and last.”</p> <p>Baisden & Co. excepted, on the following grounds: (1) The laborer’s-lien executions are not in’ law superior to the purchase-money attachment lien. (2) The judgment is contrary to law. (3) The judgment is contrary to evidence and without evidence to support it. (4) Said executions were never levied as required by section 2794 of the code. (5) Said executions were never levied as required by section 2816, par. 4, of the code. (6) Laborer’s-lien executions do not become fixed and binding on property until levied. (7) The purchase-money attachment was levied before the laborers’ liens were foreclosed. (8) The laborer’s-lien executions, or the materialmen’s lien, are not superior to the mortgage execution, because the mortgage was for purchase-money and was duly recorded. (9) The mortgage was foreclosed and the execution placed in the shferifE’s hands before foreclosure of any of the said liens. (10) A purchase-money lien is superior, in law,, to either a laborer’s or a materialman’s lien. (11) A purchase-money attachment, when levied, becomes a fixed lien upon the property levied upon and is superior to any materialman’s or laborer’s lien. (12) Purchase-money mortgage lien, duly recorded, is superior to any materialman’s or laborer’s lien, especially when the mortgage is foreclosed before the other liens are foreclosed.</p>

<p>1. It Ayas error to direct a verdict against the traverse filed to the answer of the judge of the city court, the subject of the traverse being material to the issues involved in the certiorari, and there being a direct issue of fact as to this, Avhich should have been submitted to the jury.</p> <p>2. Any disposition upon the merits of a certiorari is premature until the traverse has Ipeen properly disposed of; and a judgment upon the certiorari, in advance of a legal disposition of the traverse, is nugatory and void.</p>

<p>Forfeiture of recognizance, from city court of Monticello— Judge Thurman. November 35, 1907.</p>

<p>Affidavit of illegality, from city court of Sylvester — Judge Park. December 7, 1907.</p>

<p>Action for damages, from city court of Atlanta — Judge Reid. .January 6, 1908.</p> <p>Ellen C. Johnson sued the Western & Atlantic Railroad Company and other railroad companies jointly for damages on account of the death of her son. The petition in substance alleged: The Western & Atlantic Railroad Company is the lessee of the property of the State generally called the “State Road.” The depot or station hereinafter referred to is a part of the said “State Road.” As lessee as aforesaid, said depot passed to the Western & Atlantic Railroad Company under the terms of the lease act. All of the defendants were jointly in possession of said depot and were occupying and using it. It has been in such possession and so occupied and used for one or more years. Defendants had contracted for the repair of said depot building, and petitioner’s son was upon the building, assisting in the repairs. He had been placed upon the building by the party or parties who had contracted for the repairs. By reason of the facts stated; he was rightfully upon the building. He was engaged in removing and repairing parts of the corrugated-iron roof of the building, and his work did not call him under the roof, and he had been at no place where the condition of the iron could be seen. Defendants instructed him and others engaged, in the work to be careful to save as much of the iron as possible. Defendants specially informed them that that part of the'iron towards Central Avenue was sound and all right. It was on that part of the building that he met his death. He was walking on the top of the said building, along Central Avenue, in the discharge of his duties, when a sheet of iron gave way and precipitated him from the roof of the building, causing his death. He fell upon a pile of sand or the floor of the building and was killed. Under the terms of the lease act, it was the duty of the Western & Atlantic Railroad Company to keep the said road in the condition of first-class' roads in Georgia. By joining in the possession and occupancy of said depot, all the other defendants assumed liability for failure to.keep the said road in the condition of first-class roads in Georgia. This the defendants failed to do. Such failure-was negligence on the part of the defendants. In violation of their duty to the State and in violation of the general rules of ordinary care, defendants had permitted the entire depot, including ■.the roof, to be- in- a dilapidated and unsafe condition. This was negligence on the part of defendants. The sheet on which he was gave way because the rivets fastening it to the adjoining sheet, and the adjoining sheet itself, were rotten. They were rotten underneath and did not show their defects from the top. He was killed by the negligence of the defendants. Defendants negligéntly permitted him to work, with their approval, at an unsafe place. Defendants negligently pointed out to him an unsafe place to work. Defendants knew, or by the exercise of ordinary care 'could have known, of the defective condition of the said iron sheet and rivets. The said sheet and rivets had been in a defective condition for many months. Defendants were in possession and control of said depot and depot premises and operating the same by lease or otherwise. The repairs on the same were being done at their expense and for their benefit. Petitioner’s son was 27 years old and unmarried, was earning $4 a day, and could have continued to earn that sum permanently; he contributed to her support and she was substantially dependent on him, and she sues for the full financial value of his life. Damages are laid at $20,000. In a second count it is alleged, that the petitioner’s son was, at said time and place, at work on said building with the knowledge and approval and by the invitation of defendants, but was not an employee of defendants.</p> <p>Each of the defendants demurred generally and specially. The court did not pass on the special grounds of demurrer, but sustained the general demurrers and dismissed the petition, holding, that, according to its allegations, the defendants owed no duty to the plaintiff’s son; that he was the employee of an independent contractor, at whose instance he went on the premises, and' must look to his employer alone for a safe place to work. The plaintiff excepted to this judgment, and to the failure to overrule the special demurrers.</p>

Action for damages, from city court of Cordele — Judge Strozier. December 16, 1907. According to the plaintiff’s contentions, he got on the passenger-train of the defendant, at the union station in Cordele,'mistaking it for the train of another company, upon which he desired to become a passenger. Soon after the cars began to move, he discovered that he was on the wrong train, and sought to alight.

<p>Trover, from city court of Dublin — Judge Burch. December 20, 1907.</p>

<p>Indictment for disturbing Sunday school, from city court of Monticello — Judge Thurman. January 22, 1908.</p>

<p>1. Although a hazard of the employment, known to the servant, may have in some degree contributed to the injury received by him in performing the master’s work, yet if the chief and controlling proximate, cause of the injury is an independent act of negligence on the master’s part, which the servant could not have avoided by the exercise of ordinary care, the master may be held responsible in damages.</p> <p>2. Whenever a material change in the intrinsic condition or relative arrangement of the instrumentality by which the work is to be done is made by the master, and is of such a nature that it is likely to expose the servant, ignorant of the alteration, to the risk of injury, through a probability of his assuming a continuation of the previous condition and of his acting thereon to his hurt, the master should notify the servant of the change.</p> <p>3. A partial dependency by a father (the mother being dead) upon the contributions made by an unmarried child to his support is sufficient to entitle the former to maintain an action for the death of the latter by the wrongful act of a third person.</p>

<p>Complaint, from city court of Bainbridge — Judge Harrell. January 15, 1908.</p>

<p>1. The discretion of a trial judge upon the first grant of a new trial will not he interfered with, where it is manifest that the new trial was granted because the trial judge may not have been satisfied with the verdict rendered upon the evidence submitted.</p> <p>2. The discretion of the trial court as to mere matters of fact, where the evidence in the ease would fully authorize a finding for either party, is limited to the first grant of a new trial.</p> <p>3. Where a trial judge, in his order, places the grant of the new trial solely upon a specified ground, alleging error of law,‘the merits of that particular ground will be inquired into, regardless of whether the new trial is a first new trial or not.</p> <p>4. The first grant of a new trial will never be interfered with, where it plainly appears that the trial court, in granting the new trial, corrected a manifest el’ror of law prejudicial to the rights of one of the parties to a cause.</p>

<p>1. A pauper affidavit filed to avoid payment of costs in this court, in a case brought by an infant through his next friend, should verify the next friend’s poverty and inability to pay the costs.</p> <p>2. The employment of a child under the age prescribed by the child-labor law, in a factory or manufacturing establishment, is negligence per se; and if the child is injured by reason of being so engaged, he has, as a matter of law, a cause of action against the employer. However, if the child employed is above the designated age, a failure on his employer’s part to take and file the affidavit prescribed by section 5 of that act, though criminal, is not such an act of negligence, relative to the child, as to make the employer liable as a matter of law for his injuries.</p> <p>(а) The words “per se,” when used as descriptive of negligence, refer merely to the method by which its existence is to be ascertained from the facts of the case. If the lawmaking power, in dealing with a subject involving duties, goes into concrete specifications as to what shall or shall not be done, the court takes judicial cognizance that the precise duty exists, and that a breach of it is negligence. This is called negligence per se, in contradistinction to the wrongs or derelictions that arise from violations of those duties which have received recognition in the law, but which have not been defined, or have been defined only in such general or abstract language that there must be a finding, as. a question of fact (usually by a jury), that the particular transaction involves a violation of the duties so imposed, before the existence of negligence is to be regarded as established.</p> <p>(б) Before negligence per se, or any other form of negligence, is actionable in a given case, it must appear that the broken duty was due the plaintiff personally or as a member of a class; also that it has directly and proximately caused legal injury to him. . '</p> <p>(e) In determining whether the violation of a statute is such negligence as to support an alleged cause of action, the court is called upon to examine the law in respect to its purposes; for if it appears that, notwithstanding the violation, none of the things contemplated and sought to be guarded against have ensued, or that the plaintiff is not the person or does not belong to the class to whose benefit or for whose protection the enactment was made, the court will not declare that there is a ease of negligence per se as to that cause of action or that plaintiff.</p> <p>3. The child-labor law, by specifically providing that the employment of children under a designated age in certain occupations shall be absolutely unlawful, has in nowise limited the general law in regard to putting immature persons of tender years to work at or near dangerous machinery. In a case not covered by the statute, the question of the defendant’s negligence in employing the young person at the particular occupation is usually one for the jury.</p>

<p>Conviction of assault, from Bartow superior court — (Judge Eite. February 1, 1908.</p>

<p>1. A bond for the eventual condemnation money is no substitute for the bond required in order to certiorari from a judgment of conviction for the violation of a municipal ordinance.</p> <p>2. A writ of certiorari, without a legal bond, is a nullity and must be dismissed. The filing of a proper bond or of an affidavit in forma pauperis is an indispensable prerequisite to the issuance of the writ of certiorari.</p> <p>3. It is not error to dismiss a certiorari where tlie condition of the bond, given to obtain the writ reviewing the judgment of a municipal court, is not in the terms provided by the act of 1902 (Acts of 1902, p. 105). The decision in this case is controlled by the judgment in McDonald v. Town of Ludowici, 3 Ga. App. 653 (60 S. E. 337).</p>

<p>Trover, from Jasper superior court — -Judge Lewis. October 23,. ■ 1907.</p>

<p>1. The verdict returned was the only verdict that could have been rendered, under the undisputed evidence. Regardless of the agreement between the defendants to consider their business as a corporation, the necessary result of the association, so far as third persons were concerned, was to form a copartnership.</p> <p>2. A corporation can not be created by a mere agreement between individuals; the agreement and association must be authorized and sanctioned by law. Corporations are creatures of the law, and can only come into existence in the manner prescribed, by law. No agreements of the incorporators are of any effect in creating a corporation or in attaching liability to a corporation, until a charter has been granted by the proper authority, and accepted, and the organization of the corporation perfected.</p> <p>3. By the very nature of the business they were carrying on, the defendants were in partnership up to the time that the charter was granted and organization perfected thereunder. Individual liability as to third parties can not be avoided by resolutions or agreements to create a corporation, when no charter has been granted. The promoters of a corporation are each individually liable for debts created in behalf of a proposed corporation, unless these debts are paid by the corporation, after its organization.</p> <p>4. In every mercantile partnership each partner has the right to buy and sell goods used by the partnership in the ordinary course of its business; and even when one is not in fact a partner, he may be held out as such, either by a course of dealing or by ratification of acts performed by him as an ostensible partner.</p> <p>5. 6. The error-in not excluding the testimony objected to, like the evidence itself, was immaterial.</p> <p>7. Where there is no conflict upon those issues which must absolutely control the result, and where no error of law, the correction of which might authorize a different finding upon the same testimony, has been committed, it is error to set aside a verdict rendered in accordance with the law and the evidence.</p>

<p>1. The business of plumbing is so related to the public.health that the regulation of it is a legitimate subject for the exercise of the police power. However, the right of every citizen to labor at any and all common and honest employments is of such high importance that any statute or ordinance placing restrictions thereon will be strictly construed.</p> <p>2. The ordinances of the City of Atlanta regulating plumbing require all persons who work at that occupation, as master, employing, or journeyman plumbers, to stand an examination and secure a certificate of proficiency. The ordinances do not in terms include apprentices and helpers working under licensed master or journeyman plumbers, and they will not be included by judicial construction.</p> <p>3. The evidence not showing that the defendant was engaged as a master or journeyman plumber, but, on the contrary, showing that he was a mere helper to a licensed plumber in charge of the work, his conviction was unauthorized.</p>

<p>Certiorari, from Chatham superior court — Judge Cann. November 23, 1907.</p>

<p>Action for breach of contract, from city court of Moultrie— Judge McKenzie.' January 9, 1903.</p> <p>The facts, so far as the pleadings are concerned, are fully set forth in the prefatory statements p to the cases of Bedgood v. Tifton Ry. Co., 116 Ga. 945 (43 S. E. 257), and Butter v. Tifton Ry. Co., 121 Ga. 818 (49 S. E. 763). The present transaction is the same one involved in those eases. The petition having been adjudged good as against demurrer, in the decision last cited, the case proceeded to trial, and resulted in a verdict in favor of the plaintiffs. The defendant brings the case to this court on exceptions to the overruling of a motion for a new trial. The further facts-necessary to an understanding of the points involved will be stated in the opinion.</p>

<p>1. In no ease can a judge of a county court appoint a judge pro hac vice. A judge of one county court may preside for the judge of another county court, hut the selection of a judge pro hac vice must be made either by agreement of the parties or by the clerk of the county court, or by the clerk of the superior court.</p> <p>2. One can not be a judge pro hac vice de facto.</p> <p>(а) The facts, circumstances, and conditions which would reasonably lead persons, having business with an officer, to presume the incumbent to be the lawful officer and to recognize him as such, can not arise in the case of an individual- confessedly selected to try only one ease. “An officer de facto is one who has the reputation of being the officer he assumes to be, and yet is not a good officer in law.” The reputation must depend upon other acts than that in question, and a single act can not establish a general reputation for doing that act.</p> <p>(б) The law allowing the selection of a judge pro hae vice is merely a provision against the emergency which arises when a trial judge is disqualified. There is no such office as judge pro hae vice, and a de facto officer can not exist where there is no such office de jure. As a court is incorporeal and can not exist without a judge, the selection of a judge pro hac vice is a mere temporary expedient to speed the trial by preventing a hiatus in the disposition of the cause.</p> <p>3. The judgment of a court which has no jurisdiction of the case is entirely void. Where a defendant has had his day in court, neither he nor his surety''can, by illegality, attack the judgment rendered by the court having jurisdiction of the subject-matter. Where a court has jurisdiction, it is to be presumed that it had before it pleadings and evidence authorizing the judgment rendered; and if the judgment is erroneous it may be reviewed or a motion made to set it aside. Where, for the lack of a judge, there is no court having jurisdiction of the case, there is no such presumption, and all of the proceedings are null and void. A judgment void because not rendered by a court, or because rendered by a court without jurisdiction, can be attacked by illegality, because the defendant has never had his day in court. The rights of a surety follow the fortunes of the principal.</p>

<p>Certiorari, from Fulton, superior court — Judge Ellis, February 22, 1908.</p>

<p>Where all the assignments of error depend upon a consideration of the evidence, and what purports to be the brief of the evidence is not approved by the trial judge, the judgment refusing a new trial must of necessity be affirmed.</p>

<p>' Indictment for murder — conviction of manslaughter, from Terrell superior court — Judge Worrill. February 7, 1908.</p> <p>Carrie Lewis was convicted of voluntary manslaughter, under an indictment charging her with, having killed John Lewis by cutting him with a knife. She moved for a new trial, on the grounds that the verdict was contrary to law and the evidence and without evidence to support it; the motion was overruled, and she excepted.</p> <p>At the trial J. L. Murray testified: “Carrie Lewis was John Lewis’s wife. John Lewis died on Mrs. McCarthy’s place. . . All I know about the killing is what Carrie Lewis told me. She came up to the house that night about nine o’clock, and said that John Lewis was fighting her. . . She said she couldn’t live with John any more, and Mrs. McCarthy told her to go on back and behave herself, and she said ‘No,’ that she would not go back, but finally said she would go back if I would go with her to John. . . I said to Carrie, ‘What did you do to John?’ She said ‘I cut him. I cut him twice.’ I went on down there and found him lying right side of the road. As to what he was doing at the time she cut him, she said that she wanted to go to church and he objected, that she started to church and got a part of the way, and he overtook her and another negro woman down there near a negro house, and told her that she could not go. She said he caught her by the hand and pulled her along back up near another negro house, and right there she and another negro woman sat down, and that he left them, but came back in a little while and started to fussing again. She said he hit her with a -switch, and then she snatched away and got away from him. She said that John then run across the road and pulled off a paling and ran and overtook her, and started to hit her with it, and that she wheeled and clinched with him and cut him. She said he then kept on after her, that she then cut him again and wheeled and ran up to the house. ., . John Lewis was dead when I got to him. It was about ten or fifteen minutes after she came to the house before I got to him. I found him about 150 or 200 yards from our house, . . a short distance from his house and yard.” “The only wound I saw on John Lewis was on his left shoulder; he was lying on his face. . . "When I first saw him he was lying on his face and I did not see but one wound, but afterwards I went back and he was turned over/ when I saw a wound on his left breast. It was a stab, and I suppose it went tó his heart. They had Dr. Lewis at the coroner’s inquest to see him. I would say that the stab in John Lewis’s breast was the cause of his death. I asked Carrie Lewis what she cut him with, and she said a knife, and she took it out of her jjocket and handed it to me. It was a two-bladed knife. It was a good big knife and it was closed when she handed" it to me. That was all she said at the first conversation when she came up to the house. In regard to what she said about cutting him the second time, she said that he had run after her and caught up with her with the paling, that she clinched with him and stabbed him, then got loose and ran up to the house. I didn’t see any bruises on her; in fact she did not say anything about any bruises being on her at that time. . . John Lewis was found south of Mrs. McCarthy’s house about 150 yards; it is about 175 or 200 yards further south where Carrie said John caught hold of her hand. Carrie said she was sitting down with this woman between Joe Alston’s and Tom Leonard’s houses. Joe Alston lived nearest to Mrs. McCarthy’s, and about 350 or 400 yards south of the house. It is 75 or 100 yards from Joe Alston’s house to Tom Leonard’s house; it is 150 or 200 yards from Tom Leonard’s house to where the killing occurred. There is no other house this side except John Lewis’s. The paling was taken off Joe Alston’s fence. I after-wards noticed Joe Alston’s fence and saw where a paling had been taken off. . . A paling was found near the body of John Lewis. That looks like the paling; I think it is the paling [referring to a paling afterwards introduced in evidence]. As to whether that would be a dangerous weapon in the hands of a strong man, I would say that it would hurt a person pretty bad. It is according to how you would use it as to whether death would likely be produced with it. I suppose death could be produced with it. It was about 175 yards from where the paling was pulled off the fence to where John Lewis was found dead, directly up the road. .</p> <p>I suppose that paling is about five and a half feet long; it is about four inches wide at the bottom and three inches wide at the top, . . about half an inch thick at the narrow end, and about three eighths of an inch thick at the wide end. It looks to me.like a light sap-pine paling.” “It has two nails,in it and the lower end is split. . . The split end is the one the nail is in, and it is just as I found it. . . It had rained that day. .If the paling-was wet it would be heavier. John Lewis weighed about 160 pounds and was about five feet and nine inches high. He was a strong man!' Carrie Lewis weighed about 120 pounds.”</p> <p>Emanuel Patterson testified, that on the night John Lewis was. killed he saw Carrie Lewis and Fannie Reddick going along the-road in front of Tom Leonard’s yard, southward, in the direction of a church, and that they stopped in the road; that he went up the road and met John Lewis coming down the road, and John asked if he had seen any women going down the road; that he told John that they were down the road; that John went on and soon came back with Carrie Lewis and Fannie Reddick, and they stopped near Leonard’s house. “John was standing talking to his wife; she walked on up the road, and after a while he took out behind them. They were not running when I saw them. She was running and he was walking fast. She went towards Mrs. McCarthy’s house and was running. I do not know what he had in his hand; I didn’t see anything. I wasn’t looking for anything; do not know what Carrie had in her hand, and do not know what occurred down the road between them. . . I saw John Lewis after he was killed. Mr. Murray, Tom Leonard, and myself got there about the same time. . . He lived a minute, I reckon, after I got there. It was about fifteen or twenty minutes after I saw him going up the road with Carrie Lewis and Fannie Reddick before I saw him dead.” J. W. Shepard testified as to .a fence paling found, in the road near where one had been taken from Joe Alston’s fence, and’ as to a peach-tree switch and broken pieces of switches found near the same place. His testimony -as to the paling was in substance the same as that of the first witness. No other witness-than those mentioned was introduced by the State.</p> <p>Joe Alston testified, that .on the night John Lewis was killed, John Lewis caught up with Carrie Lewis, when she was on her way to church with Fannie Reddick, and caught hold of Carrie’s hand, and told her that she could not go to church, and said, “If you go-to church to-night you will go over my damn body;” that John held her by the hand and talked to her about ten minutes, and then turned her loose, and they went up the road towards home; that he heard them fighting and heard a noise like the lick of a paling; that they got a paling off his garden, but he did not know which one had it; it was about 40 yards from the house of the witness, where he heard the sounds of the paling. — Fannie Reddick testified, that John Lewis overtook Carrie Lewis and herself in the road, when they were on their way to church, and told Carrie to go back home, threatened to beat her if she went to church, said that if she went to church she would go over his dead body, and hit her with a switch; that Carrie got loose from him and ran towards the house, and he jerked off a garden paling and ran after her; it was dark and the witness did not see what occurred between them afterwards. The accused made the following statement to the jury: “I cut my husband with a knife. I asked him to let me go to church, and he didn’t say that I could go or that I couldn’t go. . . When I got ready to go to church I asked him if he was willing for me to go, and he said, ‘I reckon so.’ We went on down the road and sat down, side the road beside Tom Leonard’s house, and I heard him in the cane patch, coming across the patch, and he was talking scandalous. He come on up to where we were, and he said, ‘You are not going to that church to-night; if you do, you will go over my dead body.’ And he got hold of a stick and run at me and hit me on this arm and knocked the skin off, and I jerked loose from him and run up the road toward the house, and he run across the road and jerked off a paling off the garden, and I run to get to the house, to Mrs. McCarthy’s and them. He overtook me and struck at me that way. Then I run under him and struck at him with the knife. I was scared of him and was scared lie was going to kill me. I knew that he would hit me with anything that he could get in his hand.”</p> <p>Cited by counsel for plaintiff in error: 89 Ga. 140; 92 Ga. d02 (5).</p>

<p>Indictment for assault with intent to murder, from Eulton superior court — Judge Eoan. February 15, 1908.</p>

<p>Complaint, from city court of Atlanta — Judge Eeid. May 31, 1907.</p> <p>The plaintiff in the court below, the EL J. Bailey Company, contracted to deliver to the defendants, (Jude & Walker, certain lumber. The contract was largely made by correspondence, the material portion of which is as follows: On June 7, 1905, the defendants wrote to the plaintiff a letter of inquiry, saying, “We would like your price on the enclosed approximate bill of yellow pine lumber f. o. b. Atlanta. Please advise us how promptly you could deliver same. A prompt reply will oblige.” »On June 10 the plaintiff acknowledged receipt of the letter and quoted prices, concluding as follows:- “We could commence shipment in two to three weeks and complete same in seven to eight weeks, and it is possible we might do a little better than this. Please let us hear from you if we can interest you.” The defendants wrote on June 16, “We hereby accept your proposal of the 10th instant to furnish us a bill of yellow pine lumber at the prices named f. o. b. Atlanta; the shipments to begin in two or three weeks and to be completed, except flooring and partition, in seven to eight weeks. We enclose a corrected bill of material; the former one being an approximate one. Kindly acknowledge receipt of this and oblige.” Qn June 19 the plaintiff replied: “Your order for yellow pine lumber for G-uthman Laundry at hand. Same will receive our careful and best attention.” No part of the lumber was shipped for six or eight weeks. On August 10 the defendants telegraphed to the plaintiff, “When will you begin shipping large timber ? Answer;” and a few clays later they wrote as follows: “On June 16 we sent you an order for lumber for the Guthman Laundry building in this city, which was to be shipped complete, excepting ceiling and flooring, in seven to eight weeks. This time has now elapsed, and we are suffering for want of lumber. Unless we get it promptly we will be damaged and must hold you responsible. We have written and wired asking you about it repeatedly, but have had no answer recently.” On the 17th of August the plaintiff wrote, “your favor of the 16th inst. to hand, regarding your order for timber for the Guthman Laundry building. We beg to advise that we will not be responsible for any damages of any kind, and this is to put you on notice to that effect.” In response to this letter the defendants wrote on the 19th, “We have tried to be patient about this lumber; but there is a considerable difference between the two or three weeks to which shipments were to be started and the eight or nine weeks that have elapsed since the order was placed. If you will get us this material promptly, however, there will be no question about damages of any kind, and we trust you will do so.”' So far as the record shows, the plaintiff never replied to this letter; but the lumber was shipped from time to time thereafter and accepted by the defendants, the deliveries being finally completed in November or December. The plaintiff sued on account for the contract price of the lumber; the defendant sought to recoup various items of damages which they claimed to have suffered by reason of the plaintiff’s failure to ship the lumber within the time limited by the original contract. Whether an allowance of all these items of damage would be proper, as being within the contemplation of the parties, is not now before the court. The trial judge directed a verdict for the plaintiff, for the full contract price of the lumber, with interest; and the defendants excepted. The further facts necessary to an understanding of the points involved appear in the course of the opinion.</p>

<p>Complaint, from city court of Moultrie — Judge Shipp. September 5, 1907.</p>

<p>Certiorari, from Twiggs superior court — Judge Martin. October 17, 1907.</p>

<p>The evidence demanded the verdict, and there was no error in refusing a new trial.</p>

Action for damages, from city court of Savannah — Judge Freeman. December 31, 1907. The plaintiff sued for $1,000. There was a verdict in his favor for $1. He made a motion for a new trial, on the grounds that the verdict was contrary to law and to the evidence, and without evidence to support it. The motion was overruled, and he excepted.

<p>1. In a suit upon a note signed by a' guardian, 'containing á provision that the amount therein promised is to be paid out of the ward’s estate in the hands of the guardian, when available, the plaintiff must allege and prove, that the time fixed for the payment of the note, has arrived, and that the condition can be complied with. While the note will be construed as an individual undertaking of the maker (regardless of his representative capacity), still the contract is only a conditional promise to pay.</p>

<p>1. Where one party to a contract of sale knows that the other is laboring under a delusion or mistake with respect to a material fact affecting the value of the property, and .not only keeps silence with reference thereto, but, by artifice, adds color and credence to the delusion or mistake, he is guilty of fraud equivalent to an express misrepresentation.</p> <p>2. To constitute legal deceit and fraud by the use of language, the language need not affirm the existence or non-existence of something which is untrue; it is sufficient if the language of one party to a contract misleads the other party as to the existence of a fact, and thereby induces him to enter into the contract.</p> <p>3. If the holder of a promissory note has knowledge of any fact which affects the value of the note, he is under a legal obligation to disclose it to a proposed innocent purchaser of the note. When he fails to do so, the purchaser is entitled to have the contract of purchase rescinded.</p> <p>4. The rule of law that in commercial transactions the parties trade “at arm’s length” is venerable with age, but not fragrant with commercial honesty. It applies only where the struggle for advantage is in the open, with no masked batteries of fraud, and with no deceitful conduct by which one antagonist is disarmed.</p> <p>5. There is evidence to support the verdict; the trial judge approves it, and so do we.</p>

<p>Appeal, from Glynn superior court — Judge Parker. December 3, 1907.</p>

<p>Certiorari, from Tift superior court — Judge Mitchell. February 6, 1908.</p>

<p>1. A certiorari bond need not be under seal.</p> <p>%. The evidence demanded the judgment rendered.</p>

<p>.1. In order for a landlord to have a lien upon his tenant’s crop for supplies, the landlord must furnish the supplies. He may furnish the supplies directly, or he may order it done through others on his credit. Eor this purpose he may borrow money directly or through his agent; and although the note for the money may be signed by the tenant as principal maker, if the credit be extended by the lender to the landlord, whose authorized agent signs the note as security, this would not affect the landlord’s lien for supplies; and it would not affect the right of the landlprd that the agent signed his own name to the note instead of that of his principal, if, in so doing, he was acting for his principal, and not for himself, and-this fact was known to both the lender of the money and the tenant. Wliat the truth of the matter is is a question for the jury, and on this issue the testimony of both lender and agent is competent and relevant.</p> <p>2. ISfo error of law appears, and theN verdict is amply supported by the evidence.</p>

<p>Complaint, from city court of Blakely — Judge Jordan. October 22, 1907.</p>

<p>Certiorari, from Johnson superior court — Judge Eawlings. November 26, 1907.</p> <p>An execution against Outlaw was levied on certain corn as his property, and he replevied the property, executing a* forthcoming bond with Eowland as security, payable to Page, constable, the levying officer. To a suit on this bond, brought in a justice’s court by Page, as constable, for the use of the plaintiff in execution, against the principal and the surety, Eowland pleaded, in substance, that the corn levied on was his own property and was never the property of Outlaw; that he was Outlaw’s landlord and the corn was raised by Outlaw as his cropper; that at the time of the levy the levying officer was apprised of these facts, but induced him to sign the bond by promising to hold up the levy until he (Eowland) and Outlaw could have a settlement between themselves, and that if nothing was due Outlaw the bond was to be void; that the officer did not comply with the terms ■ of the agreement, and thus practiced a fraud upon him; that he, as landlord, had a settlement with Outlaw, and it was found that he owed nothing to Outlaw, but that Outlaw was indebted to him. The justice, on demurrer, struck the pleas, and the superior court, on certiorari, sustained this judgment and dismissed the certiorari. Eowland excepted.</p>

<p>Complaint, from city court of Nashville — Judge Peeples. December 10, 1907.</p>

<p>The verdict is without evidence to support it.</p>

<p>Distraint, from city court of Leesburg — Judge Long. January 25, 1908.</p>

<p>Accusation of larceiw, from city court of Macon — Judge Hodges. February 3, 1908.</p>

<p>Accusation of larceny, from city court of Tifton- — Judge Eve. February 3, 1908.</p>

<p>Indictment for burglary, from Terrell superior court — Judge Worrill. February 8, 1908.</p>

<p>Accusation of selling mortgaged, property, from city court of Moultrie — Judge McKenzie. February 27, 1908.</p>

<p>Prom a defendant caught in an apparently guilty situation, an unreasonable explanation is worse than no explanation at all.</p>

<p>Action for damages, from city court of Bainbridge — Judge Shipp presiding. October 26, 1907.</p> <p>Mrs. Sasser sued the railway company for the wrongful death of her husband, who was an employee. The plaintiff’s case rested on these facts, which in the light of the verdict we must take to be Jrue: The deceased was a flagman on a freight-train, which on the day he met his death was proceeding south bound between Bainbridge, Georgia, and Tallahassee, Florida. At Havana, Florida, this train was overtaken by a passenger-train going in the same direction. Tbe freight-train contained about twenty cars, and was larger than any of the side-tracks at the station; it was therefore necessary, in order to let the passenger-train through, that the freight-train should go down 'the main line to a point below the southern switch, that the passenger-train should follow till it too had passed the switch and then back into the side-track, and, after this was done, that the freight-train should back up the main line till the way was clear. As the freight-train was thus backing northward (the engine being at the south end and the caboose at the north end), the deceased was standing inside the caboose, at a door cut in the rear end of it, watching the track in the direction in which the cars were being backed. Suddenly, violently, and unnecessarily, without signal or warning, the engineer threw on the air-brakes in full application; the resulting sudden stoppage and jerk of the train hurled the deceased headlong from the caboose to the track, and the cars ran upon him and killed him, — a casualty strikingly similar to that under review in the case of A. & B. AirLine By. v. McManus, 1 Ga. App. 302 (58 S. E. 258). The plaintiff pleaded and proved a statute of the State in which the homicide occurred — Florida, entitling the widow to sue and to recover “such damages as [she] may have sustained by reason of the death of the party killed;” also §3150 of the General Statutes of that State, substantially in the language of §2323 of the Civil Code of this State (indeed an adoption of the Georgia law,— see F. C. & P. Ey. Co. v. Mooney, 40 Fla. 17, 24 So. 148), abolishing the defense of fellow-service in cases of railway employments. The defendant, in addition to denying that the application of the air-brakes was violent and unusual, set up that the deceased met his death through his own carelessness, that he was not where he ought to have been, was not at his post of duty, and was in a dangerous position when he easily .could and prudently should have been in a place of safety. The jury found for the plaintiff $10,000. The defendant moved for a new trial, and to the refusal of it brings error. Exceptions pendente lite were preserved to certain rulings, and error is assigned upon them. The further facts necessary to an understanding of the points decided will appear from the opinion.</p>

<p>Action for damages, from city court of Fitzgerald — Judge Jay. November 7, 1907.</p>

<p>Action for malicious prosecution, from city court of Fitzgerald— Judge Jay. November 27, 1907.</p>

Affidavit of illegality, from Tattnall superior court — Judge Kawlings. October 30, 1907.

<p>Trover, from city court of Sparta — Judge Little. December 14, 1907.</p>

<p>Trover, from city court of Sparta — -Judge Little. December 14, 1907.</p>

<p>Action for damages, from city court of Macon — Judge Hodges. December 9; 1907.</p>

<p>Accusation of carrying concealed weapon, from city court of Dawson' — Judge Edwards. December 16, 1907.</p>

<p>Complaint, from pity court of Nashville — Judge Peeples. January 10, 1908.</p>

<p>Complaint, from city court of McKae — Judge Griffin presiding. December 10, 1907.</p> <p>The Southern States Phosphate and Fertilizer Company sued Spires on a promissory note. The defendant pleaded that he was entitled to be credited with the amount of certain notes deposited with the plaintiff as collateral security for the payment of the note sued on, and which he alleged the plaintiff had negligently failed to collect, thereby damaging him in that amount. The court, at the conclusion of the evidence introduced on the trial, directed a verdict against the defendant, for the amount sued for; and he excepted.</p> <p>The note sued on was dated May 11, 1905, and was due in December of the same year. From the evidence' it appeared, that collateral notes, due in October of that year, were deposited with the plaintiff as alleged, and were to be collected and the proceeds credited on the defendant’s note. Early in the fall of that year the plaintiff sent these notes to the defendant for collection. They were for fertilizer sold by the defendant for the plaintiff. The defendant testified: “I did not collect these, because some of these people had not gotten out their cotton and were back behind' ■some; the crops of 1905 being sorry, most of the farmers got behind; although they were on people who could have made arrangements to pay them ordinarily. They promised to pay me. Tn the fall of 1906 I did not have these notes in my charge; the fertilizer people had them, took them away from me . . February 5, 1906, and they never turned them-back to me, although if I had them last fall I could have collected all of them before now. . . They all could have been collected before now if the 'fertilizer people had tried to collect them. I do not know of any effort made by these people to collect them.” The defendant testified that after the notes went out -of his hands the makers of several of them offered to pay their notes, but, when they found that he did not have the notes to surrender to them, they refused to pay him. “I lost these amounts of these notes by not having them in my hand. . . I was not at that time the agent of the plaintiff to collect these notes, and I did .not have the right to take the money. I did not toll the company that these people had offered to pay these notes, or communicate with them in any way about them. . . I said I could have collected the notes, because thej were worth the notes and [the notes] could have been collected. I might have had to sue some of them, but I could have collected them. . . I know the company would have turned these notes back to me if I had paid mine. I would have paid mine if they had let me have these notes. They taken these notes away from me, and I didn’t bother any more with them.” The plaintiff admitted at the trial that the makers of certain of the notes would, if present, testify that they would have paid their notes if the notes had been left in the defendant’s possession or control; also that one of these persons paid his note at the time of the trial, except interest, and that he refused to pay the interest, because the plaintiff had the note and he could not get it until the trial. The defendant admitted that the amount then paid had been credited to him. It appeared that when the collateral notes were returned by him to the plaintiff, they were turned over to a bank, which notified each of the makers that his note was there; but they were not collected. Nothing further appears as to why the notes were not paid, or as to any effort to collect them.</p>

<p>Accusation of selling liquor, from city court of Bainbridge — ■ Judge Harrell. January 20, 1908.</p>

<p>Certiorari, from Decatur superior court — Judge Spence. February 10, 1908.</p>

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

<p>1. No particular formality is essential to the creation of a mortgage. A writing indicating an intention to create a lien, and specifying the debt to be secured and the particular property upon which the lien is to take effect, is a mortgage. Where the seller of a horse, to secure the payment of a note given for the purchase-price, takes a mortgage on it and on other property, and subsequently the horse is taken back by the seller by request of the buyer, and the mortgage is credited with the sum to be allowed under the agreement, and still later the buyer reconsiders and decides to keep the horse, and the credit on the mortgage is erased and the buyer writes and signs an entry upon the mortgage, agreeing that the paper shall have all the efficacy originally possessed by it, the effect of the transaction is to create a mortgage. As to the horse it is a purchase-money mortgage, and superior in rank of lien to a prior judgment against the buyer.</p> <p>2. In such a case the lien of the judgment, being older in date, is superior in rank to that of the mortgage, as to the other property included; and, in the absence of some special equity controlling the case contrawise, is entitled to claim the proceeds of the sale of that property under the mortgage foreclosure.</p>

<p>Complaint, from city court of Dublin — -Judge Burclh January 31, 1908.</p>

Actions for damages, from city court of Floyd county — Judge Hamilton. February 28, 1908. Will Nix, a minor suing by his next friend, sought to recover for personal injuries; and his father, in a separate suit, sought to recover for loss of the son’s services in consequence of the injuries. The court dismissed the suits, on general demurrer, and exceptions were taken in each case.

<p>Indictment for robbery, from Bibb superior court — Judge Feb ton. March 3, 1908.</p> <p>The instructions of the court to the jury on the subject of alibi were as follows: “Evidence has been introduced as to an alibi, by the defendant. The word alibi means elsewhere. That is the English definition of the Latin word alibi. In its legal sense and when used as a defense, it involves the impossibility of the prisoner’s presence at the scene of the offense at the time of its commission; and the range of evidence in respect to the time and place must be such as to reasonably exclude the possibility of the-presence of the defendant. It is not required that the evidence or conviction of the impossibility of the prisoner’s presence should be more strong or full than would be sufficient to prove any other fact in the case. Any evidence, however, of an alibi is to be considered on the general case, with the rest of the testimony, and, if a reasonable doubt of guilt be raised by the evidence as a whole,, the doubt should be given in favor of innocence.” In the motion for a new trial an extract from these instructions was complained of “because it put the burden of proof upon the defendant to establish his alibi as fully and strongly as any other fact in the-case; which . . meant proof of his alibi bej'ond a reasonable doubt.” It was also alleged that the court erred in failing to instruct the jury upon the defendant’s contention as to the failure of the State to identify him as being the person who committed, the alleged offense.</p>

<p>1. Under the provisions of § 122 of the Penal Code, one may be convicted' of an attempt to entice away the servant, cropper, or farm laborer of' another, although the attempt be not successful, and1 the servant, cropper, or farm laborer does not actually leave the service of his employer. One accused of enticing, persuading, .or decoying may also, where the-evidence authorizes, be convicted of the attempt, under § 1035 of the-Penal Code.</p> <p>2. The evidence authorized the verdict. No error of law is assigned, and it was not error to-refuse a new trial.</p>

<p>Accusation of misdemeanor, from city court of Millen — Judge Anderson. February 17, 1908.</p>

<p>1. Error in tlie overruling of a motion to exclude testimony may be assigned by exceptions pendente lite, or may be reviewed by motion for new trial.</p> <p>2. The grounds of a motion for new trial must be distinctly approved by the trial judge. This approval may be entered upon the motion, or the ground of the motion may be verified in the bill of exceptions, but grounds of a motion not approved will not be considered by a reviewing court.</p> <p>(a) The approval of a ground of a motion for new trial extends no further than to verify statements contained therein as written.</p> <p>(1>) Where it does not appear that the objection which is urged to the admissibility of evidence was presented to the trial judge at the trial, or what objections, if any, were urged in support of a motion to exclude testimony, nothing is presented for the determination of the court in passing upon this ground of the motion for new trial and it may be disregarded without error.</p> <p>3. Though the evidence of the defendant’s guilt is weak and unsatisfactory, this court has no jurisdiction to review a finding of the jury upon an issue of fact.</p>

<p>Indictment for selling liquor, from Walker superior court — ' Judge Wright. June 10, 1907.</p>

<p>Action, on insurance policy, from city court of Atlanta — Judge Eeid. June 22, 1907.</p> <p>The plaintiff in error, a fraternal association insuring the lives of its members on the assessment plan, issued to B. P. Elliott, a member of the association, a certificate of insurance on his life, ■May 9, 1906. He died July 7, 1906. Meanwhile two assessments became due. Notice of one of them was sent to him on May 23, and, the assessment not having been paid, a letter was sent to him by the association on June 25, stating that “the time for sending in the assessment expired on June 23,” but that the time would be extended to July 1; and he was notified that in case of-failure to pay by July 1 his policy would become void. No payment was made by July 1, but on July 6 he sent to the association a money order for the amount of this assessment. On Juty 7 the association sent to him a letter which said: “We have to-day received your remittance for . . assessment on your certificate. . . This amount will be held unapplied until the enclosed health warrant has been properly executed and returned to this office, as the policy has lapsed for several days. Ivindly give this matter your prompt attention.” The health certificate was not executed. Notice of the other assessment was sent on June 13. On July 27, after the death of the insured, one Boyd sent to the association the amount of the two assessments; and on July 28 the association, in a letter addressed to the insured, acknowledged the receipt of the remittance, and stated that it would be held unapplied until an enclosed health warrant should be executed and returned. On August 7, 1906, the association returned to Boyd the amount of his remittance; and on March 7, 1907, it tendered to the widow of the insured the amount received from the insured for the first assessment. She refused the tender, and brought suit, as beneficiary, for the amount of the policy. The association set up, in defense, that the insurance had been forfeited by failure to pay assessments. . One of the conditions in the insurance certificate was as follows: “ Members holding benefit certificate shall be deemed in arrears and stand suspended if their dues and assessments remain unpaid for thirty days after notice has been mailed to their last address, as given to the Supreme Secretary.” This provision was also in a by-law of the association, which provided further: “If in arrears, the member shall stand suspended by operation of the law and forfeit all claims to benefits under the certificate. Should the said suspended member wish to be reinstated, he may pay up all dues and assessments due up to the time of apptying for reinstatement, and, upon presenting a receipt therefor and. a physician’s certificate showing him or her in good health, his application may be entertained by the council from which he was suspended, and, in their discretion, restored to membership.”</p> <p>Upon an agreed statement of facts, from which the foregoing appeared, the case was submitted to the judge, to be determined by him without a jury; and he rendered judgment for the plaintiff. The defendant excepted.</p>

<p>1. “The general rule is that when an offer to sell a quantity of goods at a specified price has been accepted by the person to whom it is made, both parties become bound by the terms of the offer, and neither is at liberty, after such acceptance, to withdraw.”</p> <p>2. The correspondence between the parties, set out in the opinion, makes a binding and enforceable contract, and breach thereof by one party, resulting in damage to the other, would give a cause of action.</p>

<p>Where the payee of a promissory note, given for patent-right territory, procures it to he executed, by stipulating with the maker that he, the-payee, will fux-nish experienced men to canvass for the maker, and sell enough territory to pay off the note, a total breach of this stipulation is a good defense to a suit brought by a holder of the note who bought it with notice of the breach and the consequent failure of consideration.</p>

Complaint, from city court of Hartwell — Judge Hodges. December 30, 1907. The action was on a promissory note for $135 principal, dated January 2, 1907, and due 30 days after date, which recited that it was given for the purchase-money of “one blue horse-mule, 4 years old.” The defendant filed a plea as follows: On January 2, 1907, he traded to -the plaintiff a mule, worth $100, for the mule for which the note sued upon was given.

<p>Action for damages, from city court of Savannah — Judge Freeman. January 15, 1908.</p>

<p>1. If more than one plea is filed to an action, the court should, upon a timely request from the plaintiff, cause the jury, in case they find for the defendant, to specify upon which one or more of the pleas the verdict is rendered.</p> <p>(a) Such a request is timely if made before the verdict has been recorde'3. and the jury has dispersed.</p> <p>v(6) In determining whether the defense presented consists of several pleas or of only a single plea, the court will look to its substance, and not merely to its form.</p> <p>.2. Where the defendant, in compliance with the Neel act (Civil Code, § 4961), which requires him to admit or deny the paragraphs of the petition, categorically denies each paragraph, the separate denials will be regarded as distinct pleas only when the particular allegations denied •are such that a simple denial thereof contains all the elements essential to a complete plea on the subject.</p> <p>{a) A denial of a paragraph of the petition, alleging that the defendant i resides within the county in which the suit is brought, is not equivalent to a plea to the jurisdiction, puts the plaintiff to proof of nothing, and is'therefore not to be considered a distinct defense.</p> <p>(h) If the basis of the action is a written contract alleged to have been executed by the defendant, the plaintiff need not prove the writing, unless the defendant files a formal plea of non est factum under oath; hence a simple denial of a paragraph in which the execution of. the instrument is alleged presents no distinct defense.</p> <p>(c) If a breach of contract constitutes the cause of action, a denial of the paragraphs in which the breach and damages are alleged constitutes a distinct defense, being equivalent to a plea of the general issue.</p> <p>{d) If tlie defendants are sued as partners under a firm name, tlie plaintiff need not prove the partnership alleged, unless it is denied either by a plea in abatement, in which a misjoinder of defendants is asserted by reason of the fact that certain persons are included as partners, who are not so, or by a plea in bar filed by one of the individuals, alleging that he is not a member of the partnership and not liable as such. A simple denial of a paragraph alleging that the defendant is a partnership composed of certain persons is not equivalent to a plea of no partnership, whether considered as a jilea in abatement or in bar.</p> <p>(e) If the defendant files and retains in his pleadings two distinct pleas, the plaintiff is entitled to demand that the jury specify on which of them a verdict is rendered, although the proof may wholly fail to support one of them.</p> <p>3. Where the plaintiff sues upon a written contract executed in a firm name, and alleges that the individual defendants named constitute the partnership, and the defendant does not file a plea of no partnership, but merely denies the paragraph of the petition in which the composition of the partnership is asserted, it is error for the court to instruct the jury that if they find that the plaintiff has failed to sustain this allegation by proof, they should consider the ease no further, but should return a verdict for the defendant.</p>

<p>Complaint, from Gwinnett superior court — Judge Kimsey. March 7, 1907.</p>

Action for damages, from city court of Eloyd county — -Judge Hamilton. February 28, 1908. The -petition in substance alleges, that the defendant, a corpora-lion engaged in the transportation of passengers, has injured and damaged the plaintiff in the sum of $1,000, as will appear from the following allegations.

<p>1. The decision in this case is controlled by that in Williams v. Rome Railway and Light Co., ante, 370, and by the ruling in Glewn v. W. XI. Tel. Co., 1 Ga. App. 831 (58 S. E. 83).</p> <p>2. A plaintiff who was wrongfully left by a street-car company upon a public street, in violation of a claimed right of transfer to a particular car, and who thereupon walked a considerable distance to her home, wherefrom she was made ill, can not recover damages on account of such illness, where it appears that another street-car, within a few minutes, would have been available for the purpose of the journey, and no reason appears why she should not have waited therefor or why she should have undertaken the walk. In such a case the illness and consequent suffering will be regarded as the result of her voluntary act, and not of the company’s wrong.</p>

<p>1. Damages are recoverable for a physical invasion of tlie right of a parent, or of one standing in loco parentis, to the possession of an infant child. It is error to dismiss a petition asking damages against one who has wilfully decoyed and carried away the child of another, where it is plainly alleged that the plaintiff is entitled to the custody, control, and society of the child as its parent, and has been deprived of each and all of these by the wrongful or criminal act of the defendant.</p> <p>2. The measure of damages, where exemplary or punitive damages, are recoverable, as prescribed by law, is to be fixed by the enlightened conscience of an impartial jury.</p>

Certiorari, from Baldwin superior court — Judge Lewis. February 30, 1908. Eoberts was convicted in the county court on an indictment charging him with a violation of the local-option act, in that he did sell and barter, for valuable consideration, alcoholic, spirituous, malt, and intoxicating liquors and intoxicating bitters, and other drinks which, if drunk to excess, will produce intoxication.

<p>1. The act of December 17, 1901 (Acts 1901, p. 63), as amended by the act of Axxgust 7, 1903 (Acts 1903, p. 91), in relation to the hiring of the tenants, croppers, or farm laborers of another, is penal and drastic in its nature, and, being in derogation of the common law, is to be strictly construed.</p> <p>2. The plaintiff in an action brought under the statute above referred to must allege and px-ove, in order to authorize a recovery, that he had, with the alleged laborer, tenant, or cx-opper, a valid, ’ perfect contract, executed with the formality prescribed by the statute as amended. The plaintiff in this case having failed to show such a contract, the verdict for the defendant was demanded; and this result having been reached, errors alleged to have been committed in the progress of the trial are immaterial and can not work a reversal of the judgment.</p>

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

<p>1. An acquittal under an indictment for cattle stealing, in which, the animal alleged to have been stolen is improperly described, is a bar to a subsequent prosecution for the same larceny, unless the indictment under which the acquittal occurred was such that it was legally impossible to have investigated the transaction thereunder.</p> <p>(а) The sex of an animal is not a necessary allegation in an indictment for cattle stealing, and, when set forth, stands upon the same footing as any other descriptive attribute which might be alleged.</p> <p>(b) An acquittal under an indictment charging the larceny of a cow is a bar to a subsequent prosecution for the same larceny, in which the animal stolen is described as a steer.</p>

<p>One is not guilty of escape who effects his own deliverance from jail, when his confinement is no part of a sentence imposed by a court. Section 314 of the Penal Code is not applicable to one whose imprisonment is for the purpose of safe-keeping only.</p>

<p>Indictment for robbery, from Gfynn superior court — Judge Littlejohn. March 7, 1908.</p>

<p>Accusation of vagrancy, from city court of Ashbum — Judge Hawkins. April 4, 1908.</p>

<p>Accusation of vagrancy, from city court of Ashbum — Judge Hawkins. April 4, 1908.</p>

<p>1. Where the vendor has agreed to sell and deliver personal property at a particular date and fails to perform his contract, the vendee may recover in damages the difference between the contract price and the market value of the property at the time and place at which it should have been delivered.</p> <p>2. Profits recoverable for breach of contract are such as are the immediate fruit of the contract, independent of any collateral enterprise; and mere prospective or anticipatory profits, speculative and conjectural, are too remote and uncertain to enter into the estimate of damages to be allowed for a breach of contract.</p>

<p>Where a builder has in good faith intended to comply with a contract and has substantially complied with it, although there may be slight defects, caused by a misconstruction of the terms of the contract, and the house as built has been received by the owner, and is reasonably suited for the purposes intended, the contractor may recover the contract price, less the damage on account of such defects. In such ease the true measure of damage is the difference between the value of the house as finished and the house as it ought to have been finished under the contract, plans, and specifications.</p>

<p>Illegality, from city court of Tifton — Judge Eve. January 16, 1908.</p>

<p>1. Where one party in the trial of a case asserts and urges upon the court a legal conclusion affecting a material portion of the ease, and the opposite party, without awaiting a ruling of the court, acquiesces in the proposition maintained, by his adversary, and gives his case affirmative direction consistent with this asserted view, the action of the court in allowing this to be done affords no cause of exception to the party asserting the legal conclusion, whether the position so asserted and urged was correct or not.</p> <p>2. That a plaintiff has brought his action prematurely is a defense not going to the merits of the plaintiff’s demand, and is dilatory only. It must be raised at the first term by plea, unless the fact appears on the face of the pleadings, when it may be raised by a specific demurrer.</p> <p>3. An agent or servant who has been wrongfully discharged may sue for a breach of the contract of employment without waiting till the end of the time within which he was to perform the contract; and all relevant facts transpiring between the discharge and the trial may be shown and considered in estimating damages.</p> <p>4. In an action for wrongful discharge from employment, the measure of damage is the full loss sustained by the person discharged by reason of the breach of the contract existing between the parties. A diminution is to be allowed, however, for any profit which the discharged person made or by reasonable diligence might have made by reason of his being relieved from the duties of the employment. The burden of proving that such a profit was made or by reasonable diligence could have been made is upon the party committing the wrongful discharge.</p> <p>5. Alleged errors in rulings upon subsidiary propositions are wholly immaterial and will not be considered, when there has been an errorless and authorized finding of the jury against the main proposition upon the existence of which the subsidiary propositions are necessarily dependent.</p> <p>6. It is not reversible error, under section 4334 of the Civil Code, for the judge, in discussing with counsel the admissibility of testimony, the propriety of a nonsuit, the direction of a verdict, or similar matters in the progress of the trial, or in explaining his rulings upon questions of this nature, to refer to the evidence or to the statements of witnesses, provided he does not go out of the line of legitimate discussion upon the point presented or use such language as to indicate apparent or actual judicial approval or disparagement of any witness or of any part of the testimony.</p> <p>7. No reversible error appears in the record.</p>

<p>1. A baggage company, engaged, in the business of hauling for hire trunks, and other baggage of the traveling public, received from a passenger a railroad-cheek for a trunk, for which cheek it issued to her a receipt, containing the number of the check, the baggage company agreeing with her to get the trunk that was called for by the check and deliver it to. her as directed: Held: (a) The baggage company was under a legal obligation to deliver the trunk as directed, or return the railroad-check to the passenger. (b) The failure to do either, in the absence of a legal excuse, rendered the baggage company liable to the passenger for the market value of the trunk and its contents.</p> <p>2. While the measure of damages is tile market value of the property when lost, any evidence of value, including the purchase-price of the property, is admissible for the purpose of enabling the jury to find the market value.</p> <p>3. The assignments of error are without merit, and the verdict is fully Supported by the evidence.</p>

<p>A was sued on a written guaranty to pay the debt of B to O. The proof showed that B did not owe the debt to C, but that D owed C the debt. Held, the variance was fatal, and a nonsuit should have been awarded.</p>

<p>Motion to amend, etc., from city court of Bainbridge — Judge Harrell. January 29, 1908.</p>

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

<p>The allegations of the petition showed that the plaintiff could have avoided the consequences of the defendant’s negligence, by the exercise of ordinary care, and that the proximate cause of her injuries was her own negligence. The petition is sustainable for nominal damages only.</p>

<p>1. A plaintiff in error possesses no unqualified right to withdraw his writ of error after argument or submission. Whether such a ease may be withdrawn is a question which addresses itself to the sound discretion of the court.</p> <p>2. Although, in a case brought to this court, certain questions have been certified to the Supreme Court, jurisdiction to allow a withdrawal remains in this court. Such power will be exercised, however, with due regard to the fact that the discretion of allowing a withdrawal must be controlled, in part at least, by what has taken place in that court.</p>

<p>Appeal, from Pulaski superior court — Judge Martin. January 15, 1908.</p> <p>The questions in this ease arise on a rule against the constable for money in his hands, realized from the sale of personal property by virtue of a common-law execution against Blackshear. The rule was brought by Coley & Brother, transferees of a mortgage fi. fa. against Blackshear; and D. L. Eagan, the holder of the common-law fi. fa. under which the property was sold, was made a, party to the rule. All questions of law and fact were submitted to the court without the intervention of a jury, and the fund was awarded to Coley & Brother, the holders of the mortgage execution. The facts were stipulated, and were substantially as follows: On November 13, 1902, the defendant in execution, James Black-shear, made his note, payable to B. F. Boone, agent, or bearer, for $177.43, due September 1, 1903. This note was secured by a mortgage on personal property set out in the body of the note. The mortgage was properly executed, and was recorded on November 20, 1902. On September 27, 1903, Boone, agent, foreclosed the mortgage, and in his affidavit of foreclosure recited, that he was agent for Miss Ida Purifoy, and that “she is the owner of the mortgage hereto attached.” The note and the mortgage were attached to the affidavit. The mortgage given to secure the payment of the note named B. F. Boone, agent, as mortgagee. It was not alleged that Miss Ida Purifoy was the owner of the note, or that the mortgage had ever been transferred to her, and there was no evidence to this effect. Based on Boone’s affidavit as agent, the mortgage fi. fa. was issued from the county court of Pulaski on September 28, 1903, the fi. fa. following the mortgage and reciting that Boone, agent, had recovered the sum therein set forth, against J ames Blackshear, on the foreclosure of the mortgage made by him to B. F. Boone, agent, and commanding the sale of the property therein described, to satisfy the execution. On September 29, 1903, the sheriff levied this mortgage fi. fa. on the mortgage property. On September 30, 1903, the mortgage fi. fa. was, for value received, transferred to G. B. Coley & Brother by J. B. Mitchell, attorney for B. F. Boone, agent. It was admitted that Mitchell, as attorney, had authority to make the transfer. Miss Ida Purifoy, mentioned by Boone, in his affidavit to foreclose the mortgage, as the owner thereof, was, at the time of the foreclosure and for twenty years prior, a lunatic, confined in the State asylum at Milledgeville. Boone was her half brother, and had been for many years in possession and manager of a plantation in Pulaski county, called the “Purifoy place,” which was owned in common by her and himself and J. M. Boone, John L. Anderson Sr., John L. Anderson Jr., and Miss Aline Anderson. In the year 1903 Boone, acting for himself and as agent for the other heirs, rented this, plantation to James Blackshear. The note and the mortgage made by Blackshear were taken partly for the rent of this plantation for' the year 1903, and partly in payment of a mule which Boone, as agent, sold to him.. Boone collected from Coley & Brother the money on the note and mortgage, and from James Blackshear the money for the rent for 1903, and, after paying taxes and costs, applied the balance of the money to such items as ready-made clothing, and other “necessaries and comforts” for Miss Ida Purifoy. Blackshear, in his negotiation with Boone, as tenant, and in giving the note and the mortgage, dealt with him as an individual, and did not know of his agency, and made no defense to the foreclosure of the mortgage. Coley & Brother paid the money for the transfer of the note and mortgage and fi. fa. to J. B. Mitchell, attorney, without notice or knowledge of any defect in the mortgage foreclosure proceeding, or in the mortgage fi. fa., neither the note, the mortgage, the mortgage fi. fa., nor the transfer containing any reference to Miss Ida Purifoy as having any interest therein. .</p> <p>On the hearing of the rule, Coley & Brother, over the objection of D. L. Eagan, who held the common-law execution, were allowed by the court to file the following amendments: (1) To amend the transfer of the mortgage fi. fa., made to them, so that the transfer as amended should read as follows: . “For value received T hereby transfer the within mortgage fi. fa. to G. E. Coley & Brother, together with, the lien arising from the same, and the note and mortgage on which said fi. fa. is based, together with all the right, title, privilege, and interest of B. F. Boone, agent, as landlord and mortgagee, without recourse on B. F. Boone, agent. This 30th day of September, 1907. J. B. Mitchell, attorney for B. F. Boone.” The words “as landlord and mortgagee” were added to the transfer by this amendment. (2) “Defendant in tlio mortgage fi. fa. upon which the money in question was brought into court did not file a counter-affidavit to the foreclosure of said mortgage, nor give bond in the terms of the statute in such cases made and provided. Movants are bona fide purchasers for value of said mortgage fi. fa., valid on its face, without notice of any defect or defense thereto.” (3) “That [movants] are the owners and holders of a certain note and mortgage signed by James Blackshear and made payable to B. F. Boone, agent, and that the money in court arose from the sale of the property in said mortgage; that said note and mortgage is superior to the common-law fi. fa. in favor of D. L. Eagan vs. James Blackshear, which fi. fa. is claiming the monejr now in. court and which arose from the sale of the property given to secure the note held by G. E. Coley & Brother, and referred to in [the original petition]; that James Blackshear is wholly insolvent and unable to respond to any judgment that may be obtained against him; that if movants are not .-allowed payment of their older lien, out of the fund in court, they are wholly without remedy; that movants, as transferees, have foreclosed the mortgage given to secure the note held by them, :and have the'execution in court, and hereby tender the same as the highest and oldest paper and lien on the fund in court.” (4) “That in the taking of the note and mortgage dated November 13, 1902, for $177.42, on which a foreclosure was had, B. F. Boone was acting as the kinsman and next friend of and for the use of Miss 1 da Purifoy, and was likewise acting in his individual capacity and for the heirs of Mrs. II. II. Purifoy, and that the money arising from the said note and mortgage, after the payment of the expenses of foreclosure, was spent in the maintenance of Miss Ida Purifoy and for her comfort; that the stock and wagon named in the above-described note and mortgage were sold to James Blaekshear for the purpose of making a crop on the Purifoy place for the year 1903, and was for the benefit of the said Miss Ida Purifoy, and the benefit of which, after deducting expenses, she received. And [movants] pray that if it be deemed by the court necessary, said mortgage-foreclosure proceedings be amended so as to show that the said B. P. Boone sues for the use of Miss Ida Purifoy and for the other common owners.”</p> <p>Coley & Brother introduced in evidence their foreclosure proceedings as transferees. The execution in favor of D. L. Eagan against James Blackshear, from the county court of Pulaski, is dated December 13, 1904, and is founded on a common-law judgment obtained December 9, 1904, for $87.22 principal, and there is an entry of levy thereon, dated December 26, 1904, reciting that it was levied “on one black horse named Dick,” as the property of James Blackshear, found in his possession. The horse was sold under this levy. This horse is a part of the property covered by the mortgage made to Boone, agent, and also levied upon by the sheriff by virtue of the mortgage fi. fa., prior to the levy of the common-law execution. On the day of the sale Coley & Brother placed their mortgage execution in the hands of the officer and claimed, the proceeds of the sale. D. L. Eagan, as the holder of the common-law execution, on the hearing of the rule made an attack on the validity of the mortgage fi. fa. transferred to Coley & Brother, on the grounds, that it was based on a foreclosure in which Miss Ida Purifoy was the real creditor, the real plaintiff, and the real holder of the mortgage, and that she is and has been for the last twenty years a lunatic; that she did not foreclose the mortgage, and, being a lunatic, could not have an agent, and the foreclosure of Boone as her agent was void, and that the transfer by Boone, agent, of the mortgage foreclosure was also void, as a person non compos mentis can not have an agent; that this mortgage is not, as to the fund in court, a superior lien to that asserted by this intervenor, for in the affidavit of foreclosure it is asserted that B. F. Boone is the agent of Miss Ida Purifoy in the foreclosure, and there is no attempt to foreclose the mortgage in his own name and for his own benefit; whereas the fi. fa. based thereon is not one in favor of Ida Purifoy, but in favor of Boone as an individual.</p> <p>The court awarded the money to the mortgage fi. fa. held by Coley & Brother, transferees; and to this judgment D. L. Eagan, excepted, and assigns-error on the following grounds: (1) The court erred in allowing the amendments offered by Coley & Brother to their pleadings; the objection to the first amendment being that it was immaterial and irrelevant; the objection to the second amendment being that Coley & Brother had not shown such title to the paper as would authorize them to amend the foreclosure proceeding; and further that it was too late to amend the foreclosure as proposed; the objection to the third amendment being that Coley & Brother had not shown such title to the paper as-Would authorize them to amend the transfer or assignment of the mortgage lien; and further that it was now too late to amend the transfer in the manner proposed; the objection to the fourth amendment being that the lien of the note and mortgage had not been legally assigned to Coley & Brother, and hence they had no right. to. foreclose the mortgage, and that, there being no legal and valid foreclosure of the mortgage at the time the property was sold, Coley & Brother had no right to substitute a new foreclosure and a new fi. fa. and to claim the proceeds'of the sale under this new foreclosure and new fi. fa. (2) The court erred in admitting in evidence the foreclosure and fi. fa. of Coley & Brother, transferees. (3) The court erred in awarding the money in the hands of the bailiff to Coley & Brother, but should have awarded the money to D. L. Eagan on his common-law fi. fa.</p>

<p>Action upon bond, from city court of Atlanta — Judge Reid. January 27, 1908.</p> <p>McArthor and the other plaintiffs were the owners of a building occupied by tenants, in the city of Atlanta. Desiring to have the building remodeled and enlarged, they employed one McGilvray, as contractor, to do the work. In his contract McGilvray agreed to be responsible for any damage done to other persons through the construction of the work and to hold the property owners harmless. The price of the work was increased by reason of the fact that the building was occupied by tenants and that the contractor agreed to carry on the work with due care and in such manner that the tenants could continue to do business. Ogletree signed a bond guaranteeing that McGilvray would perform his contract in all respects. During the progress of the work the building collapsed. The tenants sued the property owners for the damage to their stock and to their business caused by the collapse; and they alleged in their suit that the collapse was occasioned by the improper and negligent manner in which the work of repairing and remodeling the building was done. McGilvray and Ogletree were duly notified of the pendency of this action and were vouched into court to defend it. A verdict was recovered against the landowners by the tenants. Thereupon the landowners filed the present action against McGilvray and his surety, Ogletree, seeking repayment of the sums they were required to pay out in settlement of the judgment. The case came to this court on the sustaining of a demurrer to the plaintiff’s petition. The judgment of the lower court was reversed. In the report of the case as it appeared in this phase (1 Ga. App. 643) there is a fuller statement of the facts than is here made. Upon the ease proceeding to trial in the city court, the plaintiffs introduced in evidence the contract between the parties, the suit brought by the tenants, and the notice vouching the present defendants. It was admitted that judgment against the present plaintiffs was duly rendered and that it was paid off by them. The defendants presented no proof and the judge directed a verdict against Ogletree, McGilvray having previously been discharged in bankruptcy. Ogletree made a motion for new trial, on the general grounds; he especially set up that the court erred in directing a verdict against him, because the plaintiffs’ proof was not sufficient to sustain a case. The trial judge granted this motion for new trial, saying in the order: “The judgment obtained by Morse, Williams & Company against H. W. McArthor et al. is conclusive against the defendants in this suit as to the amount thereof, and also as to the right of Morse, Williams & Company to recover. Beyond that it is only prima facie evidence, and the defendants in this suit have the right to show, if they can, that the injury complained of was not due to their fault, or that the plaintiffs in this suit were also at fault. In other words, while the Morse, Williams & Company judgment is conclusive to the extent stated, these defendants have a right to show, if they can, that they are not liable for the amount which it is established by the judgment Morse, Williams & Company had the right to recover against the plaintiffs in the suit. For the reasons above stated, which seem to me to be supported by the authorities I have examined, I am quite clear that error was committed in directing a verdict for the plaintiffs in this case, and the motion is granted and a new trial ordered on that ground.” The plaintiffs bring error to the granting of the new trial.</p>

<p>Action for damages, from city court of Floyd county — Judge Hamilton. February 28, 1908.</p>

<p>In a suit on a promissory note, where a plea of recoupment is filed, it is error to refuse to allow the defendant, pending the trial of the case, to withdraw the plea.</p>

<p>Action for damages, from city court of Floyd county — Judge Hamilton. March 16, 1908.</p>

<p>Action for damages, from city court of Cordele — Judge Henderson presiding. March. 12, 1908.</p>

<p>Where it appears that a plaintiff in error who has been convicted in a criminal case (and upon whom an alternative sentence, permitting the-payment of a fine, has been imposed) has voluntarily complied with the sentence of the court, by payment of the fine, this court will not review the judgment of conviction. The court will not consider the record in any ease where it is shown that the parties have settled their controversy or that the judgment has been satisfied. In such a ease the writ of error will be dismissed.</p>

<p>Accusation of assault and battery, from city, court of Asbburn— Judge Hawkins. April 4, 1908.</p>

<p>Indictment for gaming, from Fayette superior court — Judge Beagan. March 18, 1908.</p>

<p>Indictment for furnishing liquor to minor, from Fayette superior court — Judge Reagan. April 8, 1908.</p>

<p>Certiorari, from Grady superior court — Judge Spence. March 3, 1908.</p>

<p>The scienter is an indispensable essential of the offense of receiving stolen goods, and conviction of this offense is not authorized except where the guilty knowledge of the accused is established beyond a reasonable doubt. The presumption of guilt, arising from the recent possession of stolen goods, was rebutted by the State’s own evidence; and for this reason the State failed to establish the defendant’s guilt.</p>

<p>Accusation of receiving stolen goods, from city court of Macon— Judge Hodges. March 14, 1908.</p>

<p>Indictment for larceny from house, from Polk superior court— Judge Edwards. April 15, 1908.</p>

<p>Accusation of misdemeanor, from city court of Moultrie — Judge McKenzie. April 22, 1908.</p>

<p>Accusation, of unlawful sale of liquor, from city court of Nashville — Judge Peeples. May 4, 1908.</p>

<p>While evidence which a defendant has been compelled involuntarily to disclose, through the coercion of a search of his person by an officer pending an illegal arrest, is.not admissible against him, it is no violation of this principle to receive testimony of witnesses that the defendant, intentionally or through accident or inadvertence, exposed to view a pistol previously concealed, while resisting an arrest, legal or illegal, or while such arrest and consequent detention were pending or in progress.</p>

<p>Accusation of riot, from city court of Dalton — Judge Longley. April 13, 1908.</p> <p>The accusation charged the plaintiff in error with the offense of .riot, in that he did, in violent and tumultuous manner, and jointly with four other named persons, and in execution of a common intent, obstruct, resist, and oppose the marshal of the city of Dalton in making an arrest, and did unlawfully assault the marshal, and did otherwise act in a violent and tumultuous manner. The evidence introduced by the State shows, that the marshal, acting upon information that a brother of the defendant had committed an offense against a law of the State, attempted to arrest the. brother, and was resisted in making the arrest, not by the defendant, but by his brothers and his father; and that thereupon the marshal went off and summoned a posse, and returned for the purpose of effecting the arrest, and was again resisted by the father and brothers, and finally arrested them. The defendant-was not present when the marshal went to make the arrest alone, or when he returned with the posse, and took no part in the resistance on either occasion. After the arrest was made,- the defendant came upon the scene and attempted to take his own gun from a member of the posse; a scuffle ensued between them for the possession of the gun, and the defendant was knocked down by other members of the posse.- -Neither his father nor his brothers, who are jointly- accused with him, participated in this act of violence. When he took hold of the gun he said to the man who had it, “What, are you doing with my gun?” and the struggle then ensued for its possession, between these two alone.</p>

<p>Indictment for manufacturing spirituous liquor, from Pulaski superior court — Judge Littlejohn. April 3, 1908.</p>

<p>Certiorari, from Putnam superior court — Judge Lewis. April 20, 1908.</p>

<p>Accusation of cheating and swindling, from city court of Fitzgerald — Judge Jay. April 18, 1908.</p>

<p>Accusation of cheating and swindling, from city court of Fitzgerald — Judge Jay. April 24, 1908.</p>

<p>Action for damages, from city court of Savannah — Judge Freeman. January 9, 1908.</p>

Action for damages, from city court of Macon — Judge Hodges. December 7, 1907. Freeman sued the Macon Gas Light and Water Company for damages on account of the alleged wrongful cutting off of water from his residence. The jury rendered a verdict in favor of the plaintiff, for $150; and the defendant’s motion for a new trial was overruled.

<p>1. Where a motion for a new trial is made before a judge other than the one who presided at the trial, the same breadth of presumption is not indulged in favor of the correctness of the grant as in cases where the judge who actually presided at the trial grants the new trial.</p> <p>2. In this ease the verdict rendered was supported by the evidence; a verdict, if rendered in favor of the opposite party, would not have been so. The judge, therefore (who did not preside at trial), erred in granting a new trial.</p>

<p>Complaint, from city court of Bainbridge — Judge Harrell. January 6, 1908.</p>

<p>The judgment in this ease is controlled by the decision in Jeater v. Bainbridge State Bank, ante, 469. Even if the plaintiff broke its agreement, the defendants were not thereby relieved from paying their notes. The exceptions to the judgment of the lower court are so entirely without merit that damages are awarded for delay.</p>

<p>Action for damages, from city court of Macon — Judge Hodges. February 11, 1908.</p>

Complaint, from city court of Americus — Judge Crisp. February 29, 1908. Statham sued the Southern States Life Insurance Company, a corporation of Alabama, having an agent and a place of transacting business in Americus, Sumter county, Georgia, and the General Agency Company and R. K. Shaw, both of Fulton county, Georgia, to recover $1,881.34 principal, besides interest.

<p>Certiorari, from Cobb superior court — Judge Gober. January 7, 1908.</p> <p>In the superior court a motion was made to dismiss the certiorari, because of failure to give due notice as to the time for hearing.. The record does not show any judgment on this motion, but shows a judgment sustaining the certiorari and remanding the case to the justice’s court for another trial. The bill of exceptions recites that “the court refused to dismiss the certiorari, but granted the same,” and refused “to put any kind of order upon the motion [to dismiss the certiorari] hereto attached as an exhibit.” The bill of exceptions does not assign error either upon the refusal to dismiss the certiorari or upon the refusal to put any kind of order upon the motion to dismiss. The only assignment of error is as follows: “Defendant in certiorari excepted to the order and judgment of the court sustaining the certiorari, and now excepts to the same upon the ground and for the reason that the same, as he insists, is contrary to law, and assigns the same as error.” In the brief submitted for the plaintiff in error this assignment of error is not alluded to, the brief being confined entirely to the refusal of the court to dismiss the certiorari or to enter upon the motion to dismiss an order refusing to entertain the motion.</p> <p>In this court a motion was made to dismiss the writ of error, on the following grounds: (1) “Because plaintiff in error failed to present his bill- of exceptions or to file the same within sixty days from the time he claims the alleged error complained of was made by the court below, the ruling and judgment complained of having been made January 7, 1908. The plaintiff in error did not present his bill of exceptions until March 11, 1908, a period of. 64 days having elapsed.” The bill of exceptions recites that it was tendered to the presiding judge within sixty days from the date of the judgment excepted to. (2) “Because plaintiff in error failed to serve defendant in error with a copy of the bill of exceptions within the time prescribed by law, there being eleven days from the time of granting bill of exceptions until acknowledgment of* service by counsel for defendant in error.” The bill of exceptions was certified on March 11, 1908, and served on March 21, 1908. (3) “Because none of the costs in the ease have been paid by plaintiff in error; neither has he filed any affidavit in forma pauperis, as appears of record.”</p>

<p>Conviction of manslaughter, from Jasper superior court — Judge Lewis. April 20, 1908.</p>

<p>Accusation of unlawful sale of liquor, from city court of Swainsboro — Judge Mitchell. April 20, 1908.</p>

<p>1. Before this court is authorized or required to certify any question to the Supreme Court on the ground that it is a constitutional question, it must be specifically made in the record, and must also be necessary to the proper determination of the case.</p> <p>(a) An allegation, in a demurrer to an indictment, that the statute on which the indictment is based deprives the defendant of his life, liberty, and property, without due process of law, and is therefore violative of the properly-designated constitutional provision on that subject, is not sufficiently specific, unless it points out how or wherein such deprivation takes place.</p> <p>(b) A party can not raise a constitutional question in a case by placing a factitious or incorrect interpretation upon a law and basing the alleged unconstitutionality on the effect of such an interpretation.</p> <p>(c) Whether a statute is or is not unconstitutional must be determined according to the construction placed upon it by that court having final power to construe it.</p> <p>(d) As to the construction of all criminal statutes in this State (excepting only certain eases arising under statutes creating felonies punishable by death) the Court of Appeals is the final arbiter.</p> <p>2. A single accusation or indictment may include therein, in separate counts, any number of distinct misdemeanors of the same nature.</p> <p>(а) It is permissible to join one or more counts charging violation of the general prohibition law, which went into effect January 1, 1908, with counts charging violations of such laws regulating or prohibiting the sale, etc., of intoxicating liquors as may have been in force in the particular venue of the trial prior to that date and within the period prescribed by the statute of limitations.</p> <p>(b) Persons may be prosecuted and convicted for violations occurring prior to January 1, 1908, of those laws which were suspended or repealed by the enactment of the general prohibition law.</p> <p>3. A plurality of counts in an indictment may be occasioned by the charging of the same criminal transaction as having been committed in a number of different ways, or by the charging of a number of distinct transaetions of the same general nature. The courts disregard the form and look to the substance, in determining the rights of the parties under the respective methods of procedure.</p> <p>(а) Upon an indictment containing more than one count, all charging misdemeanors, a general verdict of guilty is to be construed as convicting the defendant of each and every separate criminal transaction alleged throughout the indictment.</p> <p>(b) If by the indictment the defendant is prosecuted for only one offense, though it contains a number of counts in which the method of the commission of this offense is variously stated, a general verdict of guilty will be upheld against the contention that it is contrary to the evidence, if any one of the counts is supported by the proof.</p> <p>(c) If by the indictment the defendant is prosecuted for several distinct offenses set forth in its various counts, a general verdict of guilty can not be upheld, unless there is sufficient proof to justify a conviction under each and all of them.</p> <p>(d) The jury may legally acquit the defendant as to some of the counts and convict him as to others.</p> <p>(e) Where the plurality of counts is occasioned by the joining of more than one distinct misdemeanor, the better practice is to require the jury to render a separate verdict as to each count contained in the indictment and not specifically abandoned by the State’s counsel or withdrawn by the court from the consideration of the jury. In a trial upon such an indictment the court should not instruct the jury that if they should find the defendant guilty under any of the counts, they should render a general verdict of “We, the jury, find the defendant-guilty;” but, on the contrary, should instruct them that they should return that form of verdict only in the event they should find the defendant guilty as to each and every criminal transaction with which he stands charged.</p> <p>4. Under the general prohibition law of this State (Acts 1907, p. 81), it is criminal for any person to keep or furnish any intoxicating liquor at any “public place.” The phrase “public place,” as here used, is to be given a relative meaning; and a place may be public during some hours of the day and private during others.</p> <p>(a) The phrase “public place,” as used in the prohibition law, by a broad, general, and not wholly exhaustive definition, includes any place which, from its public eharaetei-, members of the general public frequent, or where they may be expected to congregate at any time as a matter of common right; also any place at which, even though it is privately owned or controlled, a number of persons have assembled, through common usage or by general or indiscriminate invitation, express or implied; it excludes those places which, though publicly owned, are devoted to a private use and are not open to the access of the public; also those -places privately owned or controlled from which the indiscriminate public is generally excluded, notwithstanding that at a particular time in question a number of persons may have congregated there, if the congregation is the result of special invitation for that occasion alone.</p> <p>(b) A town guard-house, relatively to a prisoner confined in a cell therein with a sole companion, is not a public place.</p> <p>(c) A person’s residence, primarily, is not a public place, but it may become so through the use to which the owner devotes it.</p> <p>5. Upon a trial for the violation of the several provisions of the general prohibition law, evidence that the defendant received frequent shipments of liquor, that he had a large amount on hand in his home, that in his house there were generally a number of persons singing, carousing, and otherwise acting disorderly, is admissible, against the objection of irrelevancy.</p> <p>6. The fact that evidence against a defendant was obtained through an illegal search of his house will not render it incompetent or inadmissible.</p>

<p>Accusation of stabbing, from city court of Tifton — Judge Eve. April 16, 1908.</p>

<p>Indictment for cheating and swindling, from city court of Camilla — Judge Scaife. May 6, 1908.</p>

<p>1. The duty of seeing that a writ of certiorari is served upon the inferior judicatory to whom it is addressed devolves upon the petitioner for certiorari or his attorney.</p> <p>2. When a clerk of a superior court issues the writ of certiorari and attaches it to tire petition, copies the same, dockets the case, and thereafter safely keeps these papers in his office, unaltered and uninjured, he has fully complied with his duty in connection therewith. He is not required to see that the writ of certiorari is served; nor is he required to call the attention of the petitioner to the fact that it has not been served. In eases of certiorari the sole duty of the clerk of the superior court, so far as service is concerned, is to write and sign the certiorari and safely keep the petition, the writ, and all other papers appertaining thereto, subject to the call of the petitioner before service of the writ, and subject to the orders of the court after service of the writ.</p> <p>3. It was not error to dismiss- a certiorari which had not been served upon the opposite party, although the writ was issued more than four months prior to the term of court at which the motion to dismiss was made.</p> <p>4. It must affirmatively appear in the petition for certiorari from the judgment of a municipal court that the bond required by the act of 1902 (Acts of 1902, p. 105) has been given, or that pauper affidavit has been filed in lieu thereof.</p> <p>5. There being no provision of law to require a solicitor-general to represent municipal corporations within his judicial circuit, service of notice of the sanction and of the time and place of hearing of a certiorari upon the solicitor-general is ineffectual for the purpose of serving a municipal corporation. Service upon a municipal corporation can not be had by serving the solicitor-general of the judicial circuit wherein the municipality is located.</p>

<p>Claim, from city court of Monroe — Judge Arnold. September 9, 1907..</p>

<p>Action for damages, from city court of Atlanta — Judge Calhoun. January 24, 1908.</p>

<p>Complaint, from city court of Fitzgerald — Judge Jay. January 13, 1908.</p>

<p>Complaint, from city court of Atlanta — Judge Calhoun. March 3, 1908.</p>

<p>Action for damages, from city court of Atlanta — Judge Reid. March 10, 1908.</p>

<p>It is well settled by the statute of this State, and by repeated rulings of this court and of the Supreme Court, that the superior court is without jurisdiction to render a final judgment on a certiorari, unless no issue of fact is involved, and the error assigned is a question of law which must finally govern the case.</p>

<p>Garnishment, from city court of Atlanta — Judge Reid. April 4, 1908.</p>

<p>Complaint, from city court of Macon — Judge Hodges. March 11, 1908.</p>

<p>Petition for certiorari, from Miller superior court — Judge Worrill. April 1, 1908.</p>

<p>1. “The purchaser of a bill, note or other negotiable security, transferable by delivery, who takes it before it is due, from one who himself has no title, bona fide and for value, acquires a good title, field, farther, that such title is not defeated by the want of such caution in the purchase as a careful and prudent man would exercise in the cqnduet of his affairs, or by gross negligence, but that it may be defeated by mala fides in the purchase, and that mala fides consists in notice, actual or constructive, of the fact that the security is not the property of the person who offers it, and a privaty [privity] with or participation in a fraud upon the true owner.” Matthews v. Poythress, 4 Ga. 287 (4) ; Bealle v. Southern Bank of Ga., 57 Ga. 274; Thomas v. Kinsey, 8 Ga. 430; Moye V. Waters, 51 Ga. 13; Shaw v. R. Co., 101 U. S. 564 (25 L. ed. 892).</p> <p>2. “Possession alone of a security negotiable by delivery before due, is presumptive evidence of title thereto; but when such security is proven to have been stolen or otherwise appropriated in fraud of the rights of the owner, then the onus is upon the possessor to show that he took it bona fide and for value; and upon his showing that, then the owner must show mala fides — that is, that the possessor has notice, actual or constructive, of the title of the true owner.” Merchants’ Bank v. Trustees, 62 Ga. 272 (4).</p> <p>3. One who takes a negotiable instrument as collateral security for a pre-existing debt is a purchaser thereof, within the purview of the foregoing rule. Gibson v. Connor, 3 Ga. 47; Kaiser v. United States Bank, 99 Ga. 258 (25 S. E. 620).</p>

<p>Certiorari, from Berrien superior court — Judge Mitchell. March 26, 1908.</p>

<p>1. Unless a witness has deceived and entrapped the party introducing him, such party will not be permitted to discredit or impeach him by proof of alleged former contradictory statements not made to the party, but to others. For one to impeach his own witness, voluntarily called by him, it must appear that the previous contradictory statements relied upon for purposes of impeachment were unknown to him, and that he was deceived and entrapped, and thus unwittingly damaged, by statements different from what he expected. It must also appear that the party claiming to have been entrapped, or his counsel, ascertained from the witness himself, and not from hearsay, the testimony which it was expected would be given when the witness was placed upon the stand.</p> <p>2. Declarations of a defendant in fi. fa. in a claim ease, as to his title, made after levy, are inadmissible for any purpose.</p> <p>3. A witness can not be impeached by proof of contradictory statements, until his attention has been directed to the time, as well as the place, at which the alleged previous contradictory statements are alleged to have been made. The foundation for impeachment by means of previous contradictory statements is not properly laid by asking the witness as to making such previous contradictory statements to a person different from the one to whom the party attempts to show by the impeaching testimony the contradictory statement was made.</p> <p>4. The evidence of previous contradictory statements related to have been made by a witness sought to be impeached is not affirmative proof of the truth of such previous statements.</p>

<p>Appeal, from Hart superior court — Judge Worley. March 16, 1908.</p>

<p>Complaint, from city court of Dawson — Judge Edwards. April 20, 1908.</p>

<p>Certiorari, from Clay superior court — Judge Worrill. April 3. 1908.</p>

<p>Claim, from city court of Nashville — Judge Roan presiding. April 23, 1908.</p>

<p>Indictment for adulteiw and fornication, from Haralson superior court — Judge Edwards. April 15, 1908.</p>

<p>1. In the determination of alleged errors, on certiorari, the answer of the justice furnishes to the court the only authoritative information as to what occurred in the trial sought to he reviewed. Assignments of error, in a petition for certiorari, which are not verified by the answer of the justice, present nothing for the consideration of the superior court.</p> <p>2. As the answer to the writ of certiorari in the present case does not verify the statement in the plaintiff’s petition, that a judgment was rendered against it in the justice’s court, the judge of the superior court, in dismissing tlie petition for certiorari, did not commit any error of which the petitioner in certiorari can justly complain.</p>

<p>1. The defendant having expressly agreed, in the contract signed by him, that no agreement or warranty other than that specified in the contract shall be binding upon the plaintiff, it was not permissible for him to prove that the plaintiff’s agent made any other warranty.</p> <p>2. A buyer who, with full knowledge of the defects in an article purchased by him, gives a note for the purchase-price is presumed to waive the defects of which he has knowledge, and therefore will not be heard, in defense to £in action brought to recover upon the note, to assert facts resting in his knowledge at the time he voluntarily contracted to pay.</p> <p>3. This case is distinguished, as to its facts, from the National Scale Co. v. Eaves, 116 Ga. 511 (42 S. E. 783). In this case express warranty excludes implied warranty of suitableness and correctness of weight.</p> <p>4. Where a defendant prevents the performance of a stipulation of a contract undertaken by the plaintiff, he is estopped from setting up in his own behalf any injury which may have resulted from the non-performance of such condition.</p>

<p>Petition for certiorari, from Fulton superior court — Judge Pendleton. April 13, 1908.</p>

<p>It is necessary that an indictment or accusation which purports to charge the defendant, under the act of 1903 (Acts 1903, p. 90), with fraudulently procuring advances other than money, on a contract of labor, should contain an allegation that the defendant did not return the-things so advanced, or pay for them. An accusation which charges the procuring of both goods and money, but which alleges a failure to return or repay only the money, is valid only as to the money charge; and the statements as to the goods, on a construction of the accusation, will be treated as surplusage.</p>

<p>Accusation of trespass, from city court of Jefferson — Judge-Stark. May 8, 1908.</p>

Habeas corpus, from city court of Macon — -Judge Hodges. June 11, 1908. James S. Yeates, was indicted in the superior court of Decatur county for the crime of murder, and on his trial was convicted of voluntary manslaughter. The Supreme Court of the State granted a new trial. 127 Ga. 813 (56 S. E. 1017). On his second trial under the indictment for murder, he was convicted of that offense, with a recommendation that he be sentenced to the penitentiary for life.

<p>1. An accusation in a city court, in tlie absence of a clear contrary provision in the act creating the court, may lawfully be based upon an affidavit charging the defendant with the offense of “misdemeanor”; and, notwithstanding the general language used in the affidavit, may amplify the description of the offense with all the particularity essential to good pleading.</p> <p>2. In a prosecution for obstructing legal process in violation of § 306 of the Penal Code, the accusation is insufficient- to withstand a motion in arrest of judgment, where it fails to disclose the official character of the officer alleged to have been obstructed and the nature of the process he was attempting to serve, or to show otherwise that the officer was authorized to execute the process.</p>

<p>This case is controlled by the answers of the Supreme Court to the questions which were certified therein by this court to that court.</p>

Indictment for involuntary manslaughter, from Chatham superior court — Judge Cann. October 28, 1907.

<p>Complaint, from city court of Lexington- — -Judge Davis. December 12, 1907.</p>

<p>1. Section 428 of the Penal Code, which prohibits the soliciting or taking of orders for the sale of intoxicating liquors in counties where such sales are by law prohibited, is a police regulation, necessary for the effective enforcement of the State’s prohibitory regulations. The act forbidding soliciting orders for intoxicating liquors is not affected by the extension of the scope of its operations, caused by. the passage of the general prohibition act.</p> <p>2. By the terms of §428 of tlxe Penal Code, the solicitation or taking of orders for the sale of intoxicating liquors is forbidden, whether the solicitation is by the seller personally, or only by an agent of the seller. To solicit the sale of intoxicating liquors by letter or circular is a crime, if the letter is intended to be delivered, and is in fact delivered as intended, in any county in this State.</p> <p>(a) The term “solicit personally” includes any act done by the seller himself which may tend to effect a sale, as contrasted with any like act “by an agent” of the seller, tending to a similar result.</p> <p>(b) Whether a solicitation is personal or by an agent is not dependent upon the personal presence of the solicitor, but upon whether the means of solicitation, whether oral or in writing, are used by an agent or by the principal himself. The solicitation of orders by mail for the sale of intoxicating liquors is personal solicitation, if the seller himself in person writes or mails the letter received by the prospective buyer.</p> <p>(c) The venue of a crime committed by mail is at the point where the matter transmitted by mail is delivered and takes effect. Where a sale of intoxicating liquors is solicited by a communication, written or printed, and mailed in one State, as no crime is committed until the delivery of the letter in the State where such solicitation is forbidden, the courts of the county where the letter is recived by the addressee of such letter and its contents are ascertained have jurisdiction of such offense.</p> <p>3. The State may punish for a crime committed through the mails as a medium, without in any sense impinging the undoubted right of the national government to control the mails. Freedom to use the mails does not extend to their use as a means of committing crime.</p> <p>4. “The general power of the States to control and regulate, within their borders, the business of dealing in, or soliciting ordex-s for, the purchase of intoxicating liquors is beyond question.” DeLamater v. South Dakota, 205 U. S. 93.</p> <p>5. Under the provisions of the Wilson act, a statute which (in aid. of a police regulation prohibiting the sale of intoxicating liquors within se State or any portion thereof) prohibits the solicitation of orders is not, for the reason that such statute conflicts with the power of Congress to regulate and control interstate commerce, void as to orders solicited in said State, although the seller and the liquor to be sold may both be in another State; because such regulation in no wise encroaches upon the power of Congress to control interstate commerce. The exercise of such State regulation, so far from being in conflict with the power of Congress to regulate interstate commerce, is expressly allowed by law'. 26 Stat. 313, c. 728.</p> <p>6. A corporation may be indicted and punished for any violation of law, by its servants and agents in the conduct of its business, which it commands or ratifies. That the servant may also be punished does not relieve the corporation.</p>

<p>1. An application to continue a motion’for a new trial, in order to enable tire movant to obtain an affidavit as to alleged newly discovered testimony, is addressed to the sound legal discretion of the presiding judge. In the present ease there was no abuse of discretion.</p> <p>2. An alleged erroneous instruction of the court to the jury is not to be viewed insularly and apart from the context.</p> <p>3. An erroneous instruction to the jury will not work a reversal, if the verdict as rendered makes it manifest that the finding of the jury was in no wise affected thereby.</p> <p>4. No reversible error appears.</p>

<p>1. D. sued, a street-railway company for damages on account of personal injuries received by him. There was, on the trial, a direct conflict in the testimony on the controlling question in the case. D. was the only witness in his own behalf on this point. His testimony was contradicted by three witnesses introduced by the defendant. Counsel for D., in the concluding argument, said he hoped that some of the jury knew D. personally, and said further that a man’s life, if properly lived, was his best asset. Defendant’s counsel objected to this statement, on the ground that a juror could not consider his personal knowledge of the plaintiff; and moved the court to caution the jury to that effect. This the court declined to do. Counsel for the plaintiff then made a similar statement to the jury, and the defendant’s counsel again moved the court as above stated, but the court again declined to interfere. Held, that the court erred in refusing to instruct the jury that a juror must not consider any personal knowledge that he might have in reference to the plaintiff’s character. What passed between the court and counsel might have left the jury under the impression that a juror could consider his personal knowledge of the plaintiff’s character.</p> <p>2. Where an attempt is made to impeach a witness by proof of contradictory statements previously made, the witness may explain the statement previously made, by showing that it was not made with reference to the transaction then being investigated, but was made with reference to another transaction, that happened at a different date, and may also give the details of the former transaction, for the purpose of showing that they corresponded with the alleged contradictory statements previously made.</p> <p>3. The other assignments of error are without merit.</p>

<p>Action upon insurance policy, from city court of Atlanta— Judge Reid. April 3, 1908.</p>

<p>Certiorari, from Wilcox superior court' — -Judge Whipple. February 11, 1908.</p>

<p>Action for damages, from city court of Fitzgerald — Judge Jay. April 1, 1908.</p>

<p>Mere breach of warranty will not authorize the rescission of a horse-swap; fraud usually will. Material false representations as to existing conditions are usually fraudulent, as contradistinguished from guarantees for the future, which are merely warranties. Barnett v. Speir, 93 Ga. 762 (21 S. B. 168) ; Johnson v. Earley, 121 Ga. 83 (48 S. E. 685).</p>

<p>Certiorari, from Berrien superior court — Judge Mitchell. March 25, 1908.</p>

<p>Certiorari, from Fulton superior court — Judge Ellis. March 21, 1908.</p>

<p>Appeal, from Morgan superior court — Judge Lewis. April 22, 1908.</p>

<p>1. Funds derived by county boards of education from borrowing money-are not included in county school funds, and the' proper receipt and disbursement of such borrowed money is not one of the duties of a county school commissioner by virtue of his office.</p> <p>(a) A contract of suretyship is to be strictly construed in the interest of the surety. The risk of a surety on a county school commissioner’s-bond may be increased by his being entrusted by the county board of education with large sums of money to be disbursed under its orders, which moneys were not received as part of the common-school fund, nor at the times provided by law for the payment of such fund.</p> <p>(b) Sureties upon the bond of a county school commissioner are not liable, upon a bond providing for the faithful discharge of his duties, for any moneys borrowed by such county board of education. In the-case of loans to county boards of education the entire transaction is individual, and not official.</p> <p>2. In a case where an action can not be maintained against the sureties, on an official bond, because the malfeasance or dereliction of duty of' their principal is personal, and not official, neither can the action be maintained upon the contract as against the principal, though lie-may, in an action of a different nature, be individually liable.</p> <p>3. The power to make arrangements for the efficient operation of. schools, conveyed by § 1363 of the Political Code, does not include the power to borrow money.</p>

<p>1. In a prosecution for perjury it is permissible to join in a single count of the indictment a number of separate and distinct material statements alleged to have been falsely sworn to by the defendant in the same legal investigation.</p> <p>2. On the trial under an indictment for perjury it is not necessary to prove that the defendant made literally the statement alleged; for it is well settled that only the substance of the language used by the witness in the prior judicial investigation, in which he is alleged to have sworn falsely, need be proved.</p> <p>3. It is not necessary to the conviction of the defendant, on an indictment setting forth several distinct false statements, that the State should show the elements of perjury as to each and all of the statements so alleged; but if perjury is established as to any one of the statements which is material, a conviction may be upheld.</p> <p>4. The evidence was sufficient to authorize the conviction.</p>

<p>Complaint, from city court of Abbeville — Judge Nicholson. May 14, 1908.</p>

<p>1. When a crime has been committed which, from its nature or the details of its commission, necessarily or probably involved the participation of more than one person, it is permissible for the State to prove, on the trial of one of the persons charged with committing it, that, shortly after the crime was committed, he was seen in company with another person and that this other person was, by the circumstances of the case and by the indicia of guilt found upon him, connected with the crime.</p> <p>2. Upon reasonable grounds for his suspicion, a police officer may, without warrant, arrest a suspected felon apparently attempting to escape, and, after such an arrest, may subject the clothing of the prisoner to a reasonable search. Evidence of crime so obtained is not inadmissible against the defendant on the ground that he is thereby compelled to disclose evidence against himself.</p> <p>3. To render evidence inadmissible on the ground that the prisoner was compelled to produce it against himself, it must appear that such compulsion was used as to rob the prisoner of volition in the matter.</p> <p>4. Evidence which bears a distinct relevancy to the ease on trial is admissible against the defendant, though it tends to show also his complicity in another crime.</p> <p>5. Where a defendant has been convicted of burglarizing a bank, and attempts to have the verdict set aside on the ground that, unknown to him, one of the jurors who tried him was related to a stockholder in the bank, the juror is incompetent to testify to the alleged relationship^ The evidence submitted in support of the attack must be such as to-show not merely that at the time of the hearing of the motion for a, new trial the asserted relationship existed, but definitely that it existed at the time of the juror’s service.</p> <p>6. The trial was free from error; and the verdict is supported by the evidence.</p>

<p>Indictment for burglary, from Polk superior court — Judge Edwards. April 21, 1908.</p>

<p>Certiorari, from Bibb superior court — Judge Felton. May 26, 1908.</p>

<p>1. It is prima facie to he presumed that a trial judge has exercised his discretion, when he grants or refuses a motion for new trial; and he who asserts to the contrary must plainly show the failure of the judge to exercise the legal discretion with which he is clothed. The judgment of a court upon a motion for new trial can not be impeached' by statements of the presiding judge, not contained in the order overruling or granting the motion. If the trial judge has really exercised his discretion upon a motion for new trial, the reasons which influence him in giving direction to the ease are unimportant to the court of review.</p> <p>(a) In no event can a reviewing court look beyond the order disposing of the motion for new trial, or the recitals in a bill of exceptions affirmatively showing that his discretion was not exercised, to inquire whether the judge has failed to exercise his discretion.</p> <p>(b) Even when the judge gives expression orally to disapproval of a verdict, and does not incorporate it in his final judgment, it is not to be held that this indicated that there was not finality and exercise of discretion; it will be treated merely as indicating that the final decision was not reached without difficulty.</p> <p>2. A second verdict, found with no evidence to sustain it, should be set aside as readily as a first, but a second verdict can not be set aside, as a first verdict might be, merely because upon the second trial the judge may think that the preponderance of the evidence is in favor of the losing party.</p> <p>3. The evidence authorized the verdict; and though the evidence were weak, the judge would not be authorized to grant a second new trial because his personal opinion as to the weight of the evidence differs from that of the jury, unless for errors of law a new trial should be granted.</p> <p>4. Evidence of the ineompetency of a servant as to a particular business requiring skill may be deduced from a circumstance disconnected with the cause of action, where the service to be performed is of the same nature or requires like skill as that from the absence of which it was claimed the plaintiff was injured.</p> <p>5. The court may present a defense of the defendant most strongly by excluding from the consideration of the jury all liability under the plaintiff’s claim of right of recovery as to that matter.</p> <p>6. (a) In the absence of a written request it is not error for the court, after giving general instructions upon the subject of the measure of damages, to omit to instruct them that they should take into consideration the plaintiff’s diminishing capacity for labor, due to old age. If general instructions are given on the subject of the ascertainment of damages, more specific instructions, if desired, should be duly requested.</p> <p>(b) The jury are presumed to be as cognizant of the common phenomena of human experience as the judge, and if their attention is especially desired to be directed thereto, a timely written request should be made. It is not essential, in order to form an estimate of the value of the life of a deceased, or to ascertain the diminished capacity of a plaintiff to earn money, which has been caused by an injury, that the jury trying the ease should have before them the standard mortality tables. Such tables may be a useful circumstance, but are not conclusive.</p> <p>7. A verdict of a jury can not be held to be excessive unless it be manifestly the result of prejudice or bias, or other' corrupt motive.</p>

<p>Action on bond, from city court of Dublin — Judge Burch. January 6, 1908.</p>

<p>Action for damages, from city court of Polk county — Judge Irwin. March 3, 1908.</p>

<p>Action for damages, from city court of Savannah — Judge Freeman. February 12, 1908.</p>

<p>Complaint, from city court of Blakely — Judge Jordan. April 20, 1908.</p>

<p>Indictment for larceny from house, from Warren superior court --Judge Worley. April 14, 1908.</p>

<p>Indictment for assault with intent to murder, from Clinch superior court — Judge Parker. April 25, 1908.</p>

<p>A materialman who has furnished articles to a contractor for the improvement of the real estate of another can not maintain a separate. action at law against the landowner, until he has first obtained a judgment against the contractor.</p>

<p>1. The evidence upon the trial authorized the conviction of the plaintiff in error, and the newly discovered evidence being impeaching only, this court would not be authorized to hold that the trial judge erred in refusing a new trial.</p> <p>2. In criminal cases, where a defendant is found guilty of a felony but the jury recommends that he be punished as for a misdemeanor, it is within the jurisdiction of the trial judge to act upon such recommendation or to disregard it as he may deem proper. The exercise of this discretion will not be controlled where the sentence imposed does not exceed the limits provided by law.</p>

<p>1. The issuing of a bill of lading by a carrier is only prima facie evidence of the receipt of the goods. If the bill of lading is issued prior to the time then goods are tendered to the carrier, it does not become effective until the goods are offered to the carrier in such a condition as that it should receive them.</p> <p>2. Under the rules of the railroad commission, as well as by general law, no railroad company is required to accept for carriage any goods, unless they are tendered in such condition that the transportation thereof is safe and practicable. The tender of a car-load of such commodities as, under the rules of the commission, are to be loaded by the shipper is not a good tender if the ear is unsafe.</p>

<p>All misnomers in pleadings being amendable instanter, a suit by the Orr “Shoe” Company against the Dr. Bell & Lee “Shoe” Company, on an account made a part of the petition and -which shows that the real plaintiff was the Orr “Stationery” Company, and the real defendant the Dr. Bell & Lee “Drug” Company, is amendable by striking the word “Shoe” from the petition and inserting in lieu thereof the words “Stationery” and “Drug,” as descriptive of the parties.</p>

<p>Action for damages, from city court of Macon — Judge Hodges. September 16, 1907.</p>

Action for damages, from, city court of Atlanta — -Judge Reid. November 13, 1907. Chapman was employed in the yards of the defendant at Hamlet, North Carolina, as a yard-engineer, and was what is known as an extra man; that is to say, he was not regularly assigned to any particular engine, but was used to fill vacancies caused by the absence of other engineers.

<p>Certiorari, from Pulton superior court — Judge Pendleton. November 5, 1907.</p> <p>The Smith & Simpson Lumber Company brought suit in a justice’s court against the Louisville and Nashville Railroad Company and the Atlantic Coast Lin,e Railroad Company, lessees operating-the Georgia Railroad, to recover the sum of $11, “for breach of contract.” The plaintiffs allege in their petition, that on February 4, 1907, they shipped over defendants’ line one car-load of lumber, for delivery at Atlanta, Georgia,, for which shipment the regular-charges of transportation were paid; that the car of lumber arrived in Atlanta, over the Georgia Railroad, on February 20, 1907, and that on said last date, petitioners directed' the Georgia Railroad to deliver the car of lumber to the Central of Georgia Railway, a-connecting line, for delivery to the consignee; that the delivery of" the car-load of lumber as directed by petitioners was not made to-the Central of Georgia Railway until March 9, 1907, a period of eleven days, excluding all free time allowed by law and the -railroad commission; that storage rule 13 of the Georgia Railroad. Commission requires that all such deliveries shall be made within twenty-four hours after directions for delivery have been made, and provides that upon a violation of said rule, the railroad company at fault shall pay the consignee one dollar per day per car for each day of the continued infraction of the rule; and it is alleged that the delay of the Georgia Railroad in delivering the car off lumber to the Central of Georgia Kailway constituted a breach by the defendants of their contract to transport and delivet within due time, for which breach of contract petitioners were damaged in the sum of $11, “the measure of damage provided by the rule-of the railroad commission and by law.” It is further alleged, that on March 12, 1907, a written demand was made upon the defendants for payment of the claim of damages, and, the damages not having been paid, the defendants were duly cited to appear before-the railroad commission of Georgia to answer said claim for damages, and that the railroad commission, after considering the case,, certified that sufficient cause had not been shown to relieve the-Georgia Kailroad Company from the penalty of said claim. The-defendants filed in the justice’s court a plea to the jurisdiction, on the ground that the suit was one to recover a penalty or liquidated, damages prescribed by the railroad commission for a breach of public duty. The justice sustained the plea and dismissed the. suit; whereupon the plaintiffs presented to the judge of the superior court a petition for certiorari. The writ was sanctioned, but, at the hearing, the certiorari was overruled; and on this judgment error is assigned.</p>

Complaint, from city court of Atlanta — Judge Calboun. September 27, 1907. Ennis sued Fain & Stamps for $229.13, balance alleged to be due for sweet potatoes which he had sold to them. The defendants pleaded that the plaintiff sold the potatoes under an express warranty that they were sound, yellow yam, sweet potatoes, but that they were as a matter of fact very unsound and of a mixed variety. The evidence at the trial was very conflicting.

<p>Certiorari, from Dodge superior court — -Judge Martin. November 27, 1907.</p>

<p>Action on bond, from city court of Atlanta- — Judge Reid. January 6, 1908.</p>

Action on bond, from city court of Brunswick — Judge Gale. December 30, 1907.

<p>1. Where an attorney at law has taken a claim for suit and collection on the terms that he is to have a certain percentage of the recovery for his services, and after judgment the client, without the consent of the attorney, takes from the debtor property in full settlement of the judgment, he becomes liable to the attorney for the full amount of the fee.</p> <p>2. In a suit to recover the fee from the client, evidence as to the real value of the property taken in payment of the judgment is immaterial.</p> <p>3. Communications to a person who is an attorney at law are not confidential and privileged from proof against the person making them, unless made to the attorney in his capacity as such. Mere casual personal conversations with the attorney are not privileged.</p> <p>4. The evidence authorized the judgment rendered.</p>

<p>Trover, from city court of Sylvester — Judge Park. January 27, 1908.</p> <p>The Valdosta Foundry and Machine Company brought an -action of trover against J. B. Charles. The petition contains the usual allegations as to title in the plaintiff, possession by the defendant, value, and demand and refusal, and gives the following description of the property: “One 6x13 Fay Company inside moulder, one dry kiln, one Goodie & Waters resaw, one Smith comb, rip and cut saw, one board conveyor, one haul up rig and cars, one sawdust rig and chain, one iron car, two 30 lb. frog and switches, one lath binder, one twin engine, one 2,000 lb. balance wheel, one 24x16 mandrel pulley, forty feet 2-3/16 shafting, five boxes, five coupling, sixty feet 2-7/16 shafting (Job 199), and one saw guide."</p> <p>The defendant filed a special demurrer, on the following grounds: (1) That it nowhere appears in the petition whether the Yaldosta Foundry and Machine Company is a partnership, a corporation, or the mere trade name of an individual. (2) That the description of the property sued for is insufficient to put the defendant on notice as to the particular property referred to. This ground of the demurrer goes to the description of each item of the property, it being insisted that the description as given is too indefinite to enable the defendant to intelligently prepare a defense. (3) That it nowhere appears in the petition what right the plaintiff has to any item of the property specified; the bare allegation of title to such property being insufficient. (4) That the petition does not set out the definite and specific value of each item of the property sued for; the statement of the aggregate value being insufficient. To meet the demurrer, the petition was amended as follows: (1) “by inserting after the words The petition of Yaldosta Foundry and Machine Company/ in the first portion óf the petition, and before the first paragraph of the same, the following words: The same being a trade name under which E. L. Thomas does business / so that that portion of the petition, when amended, shall read as follows: ‘The petition of the Yaldosta Foundry and Machine Company, the same being a trade name under which E. L. Thomas does business, respectfully shows/" etc.; (2) by giving the specific value of each item of the property; (3) by striking from the petition the aggregate value of $1,000, and, in lieu thereof, inserting, as the aggregate value, $2,450.50. The defendant ■objected to the foregoing amendment, on the grounds, that there was not enough to amend by, that it showed that the suit was null .and void for want of the proper party plaintiff, and that it sought to add a new party plaintiff. The amendment was allowed. After the petition had been thus amended, the defendant moved to dismiss it, “because said proceeding is absolutely null and: void for want of a proper party plaintiff. The Yaldosta Foundry and Machine Company, being neither a partnership nor' a corporation, but the mere trade name under which E. L. Thomas does business,” ■and, being neither a natural person, a corporation, nor a partnership, could not legally institute the action; and there being no party plaintiff, the suit is a mere nullity and can not be amended. The court overruled the motion to dismiss, and overruled a general •demurrer filed by the defendant. To each of the foregoing rulings ■exception was taken.</p> <p>The defendant filed a plea denying each paragraph of the plaintiff’s petition, and the case went to trial before a jury. After the evidence of the plaintiff was heard, the defendant introducing none, the court directed a verdict for the plaintiff, for $949.37. The defendant filed a motion for a new trial, embracing some of the grounds already covered by exceptions to the judgment overruling the demurrer, and, besides the general grounds, the following additional assignments of error: (1) that the court erred in directing a verdict for the plaintiff, as there was a conflict in,the evidence as to the value of each item of property in question;(2) that the identity of the property had not been conclusively proved; (3) that the title of the plaintiff to the property was not shown bjr the evidence; (4) that the court erred in admitting in evidence the conditional bill of sale, without first requiring proof of its execution; and because the description of the property contained in this instrument was not sufficient to show that it was the same property testified about and sued for, or to put the defendant on notice that the title to the property therein described was in the plaintiff. The court denied the motion for a new trial, and this judgment is assigned as error.</p>

<p>Larceny, from city court of Macon- — -Judge Hodges. February 15, 1908.</p>

<p>Larceny, from city court of Macon — -Judge Hodges. February 15, 1908.</p>

Action for damages, from city court of Eloyd county. February 27, 1908. This case arises upon the court’s sustaining a demurrer to the plaintiffs petition, which in substance alleged as follows: The defendant was engaged in transmitting electric light and power, and for that purpose had wires strung along the streets of the city of Borne.

<p>Action on insurance policy, from city court of Reidsville— Judge Morgan. December 5, 1907.</p>

Action for damages, from city court of Newnan — Judge Freeman. February 18, 1908. Brannon & Potts brought suit against the Atlanta & West Point Railroad Company to recover $202.50, the value of a mule, which they alleged was shipped, in company with twenty-one other mules and two horses, by them from Atlanta to Moreland, Georgia.

<p>Complaint, from city court of Macon — Judge Hodges. March 21, 1908.</p> <p>The plaintiff sued for the purchase-price of yarns sold by it to the defendant; the defendant pleaded, (1) that the yarns were bought under an express warranty, and that the warranty had failed, because of certain defects, and prayed a recoupment of the resultant damages; (2) that the weights of the goods delivered were short, and asked a reduction from the face of plaintiff’s account therefor; (3) that subsequently to the arising of the differences set up in the foregoing two pleas, and while they were pending unsettled, the parties agreed upon a compromise, whereby the plaintiff contracted to deliver to the defendant, in consideration of the settlement of all differences, in addition to the 10,054 pounds of yarn then remaining undelivered under the contract, 9,820 pounds more, at the contract price, which was 3.31 cents less than the market price of yarns at that time; that the plaintiff had breached this contract by delivering only 10.487 pounds of the 19,487 pounds of yarn thus contracted -to be delivered, and that of this the defendant had to return to the plaintiff 1,553 pounds, because it was too defective to be used; and therefore, for the failure of the plaintiff to deliver the balance, amounting to 10,940 pounds, the defendant was damaged in the sum of $362.11, being tbe difference between ’ the contract price and the market price; and a set-off as to this sum is prayed. The court, in charging the jury, took up these pleas in inverse order, and, as to the third, — the one in which the contract of settlement is pleaded,— instructed the jury that if they found in favor of the defendant on this plea, they should deduct from the plaintiff’s recovery whatever sum the proof showed the defendant was damaged by the plaintiff’s failure to deliver the yarns in accordance with the contract of settlement; and that if they found for the defendant on this issue, they should not take into consideration the other pleas which the defendant had filed. The jury was also instructed as to how they should determine the issues raised by the other pleas, in the event they found against the defendant on the plea of settlement. Tlie jury returned a verdict in favor of the plaintiff, but made a deduction of $332.78 from the amount of the account. The defendant filed a motion for a new trial, in which, besides these general grounds, it complained of certain rulings excluding testimony as to the plea numbered 1 above; also of the charge of the court wherein the jury were instructed that if they found in favor of the defendant on the plea of settlement, they should not consider the other pleas.</p>

<p>Trover, from city court of Miller comity — Judge Bush. February 25, 1908.</p>

<p>Action on policy, from city court of Reidsville — Judge Morgan.. March 3, 1908.</p> <p>Widineamp procured from the defendant insurance company a policy in the sum of $1,500, insuring his house, worth $3,000,. against loss by fire. The policy contained the following provisions, “This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void . . if any change, other than by the death of an insured, take place in the interest, title, or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process or judgment or by voluntary act of the insured, or otherwise.” Widineamp made an executory sale of the property to one Smith and gave him a bond for title. Smith was in possession of the property at the time of the fire, and had paid a portion of the purchase-price; though the record does not disclose how much. In an action upon the policy, these facts appearing, the court, on demurrer, gave judgment in favor of the defendant.</p>

<p>Indictment for carrying concealed weapon, from Habersham superior court- — -Judge Kimsey. May 18, 1908.</p>

<p>Action for damages, from city court of Ashburn. June 16, 1908.</p> <p>Payton sued the railway company, in substance alleging, that at Ashburn, Georgia, on a day named, he went to tbe depot of the defendant company, from which its passenger trains customarily left, and bought a ticket to Sylvester, Georgia; that this' was about twenty minutes before the time the train was scheduled to leave; that he waited about an hour and discovered that the-train had gone out on its trip, leaving from the yards instead of’ from the depot; that the quickest, nearest, and best way for him to get to Sylvester was to hire a horse and buggy, and drive-through from Ashburn to Sylvester, a distance of about twenty miles; he had to pay $5 for this transportation and lost a half day’s time, of the value of $20; the conductor of the train had been informed by the plaintiff that he expected to go on that train, and he caused the train to leave him purposely., The plaintiff asked for $200 damages, actual and punitive.</p> <p>The defendant demurred generally to the petition, on the ground that it set out no cause of action, and that the damages claimed were too remote and contingent. The court sustained the demurrer and dismissed the action.</p>

<p>1. The rule which requires a contract to be considered as a whole, and that. no portion shall be discarded, — that it shall be construed “ut res magis valeat quam pereat,” — wag properly applied by the trial judge in holding that the contract in this case required a continuous foundation wall.</p> <p>2. A contract which requires the building of a wall is breached by failure to build it, although a substitute more suitable for the purpose be provided, unless the stipulation requiring a wall has been waived; and any damage resulting from the breach of the contract which required a wall instead of piers, as well as the cost of the wall itself, would be recoverable.</p> <p>3. Under the terms of the contract in this ease, the proper measure of damage was applied. A having contracted to build a wall, as well as to insure the preservation of B’s building, B, upon proof of the breach of the contract, was entitled, by express terms of the contract, to recover the cost of the wall, as well as all damage which resulted to her building in the general construction of A’s building.</p> <p>4. The verdict was supported by the evidence, and there was no error in refusing a new trial. The terms of the contract itself preclude the consideration of the greater portion of the assignments of error urged by the defendant.</p>

<p>1. The rule of the common law which forbade the filing of contradictory pleas does not prevail in this State. Under the provisions of the Civil Code, §5047, a defendant may rely at one and the same time on a demurrer, a plea in bar, and a plea in discharge. Pleas, however conflicting, do not oust each other.</p> <p>(a) The admission by the defendant of a prima facie ease in the plaintiff, in order to get the opening and concluding argument before the jury, whether made in the original answer or by amendment, does not estop the defendant from complaining of prior rulings on demurrer, to which exceptions pendente lite have been filed.</p> <p>2. Where the contract does not prescribe otherwise, the certificate of an architect as to the satisfactory completion of a building need not follow any particular form.</p> <p>3. Where a contract has been broken, the law deeks to give such damages as will put the injured party in the same position as if the contract had been kept; subject, however, to the exception that damages which are speculative, consequential, or of a nature not reasonably within the contemplation of both parties as a natural and probable result of a breach, are not recoverable.</p> <p>(a) Where a builder agrees to.erect a building within a certain time, knowing that it has been leased from the time named for its completion, and breaks the stipulation as to time, he is ordinarily liable to the owner for loss of rent, but not for loss of interest on the capital invested in the building, nor for damages paid, by the owner to a lessee in accordance with a stipulation of the lease contract, as to which the builder had no knowledge.</p> <p>4. Where an amendment to pleadings has been, in term, duly allowed over objection by demurrer, it is not, after the term has expired, within the power of the court to revoke the order of allowance, and on motion strike the amendment; but harmless error in this regard will not authorize, the grant of a new trial.</p> <p>5. A juror over sixty years old is exempt, but not disqualified to serve in a civil case. His exemption is a privilege, but not a disqualification.</p> <p>6. “It has long been the rule in this State, when tlie admissibility of evidence is doubtful, to admit it and leave its weight and effect to be determined by the jury.”</p> <p>7. The charge of the court was accurate, fair, comprehensive of the issues in the ease, and free from material error. The verdict is amply supported by the evidence; and no reversible error appears.</p>

<p>1. The right of a defendant in a criminal trial to make to the court and jury such statement as he may deem proper in his defense is not to be governed or restricted by the rules controlling the admissibility of evidence. The statement of the defendant can properly include a statement of the reasons which influenced his actions in the transaction under consideration, even though his actions were dependent upon or caused by the acts of others, which he may also properly relate. It is error to interrupt a defendant .in making - his statement, merely because, , under the rules of evidence, the statement made by him would be technically objectionable, if the facts stated by him are in fact connected with those facts upon which he bases his defense.</p> <p>2. A minister of the gospel is not guilty of disturbing divine worship because, by his preaching upon an occasion when he bona fide claims the right to do so, another is prevented from occupying the same pulpit. The statute of this State against disturbing divine worship was not designed as a means of determining the respective rights of contesting claimants to a benefice.</p>

<p>Indictment for disturbing worship, from city court of Americus — Judge Crisp. August 12, 1907.</p>

<p>1. That the affidavit upon -which an accusation is based is defective, in not properly denominating or describing the offense charged, will not afford ground for quashing the accusation, if the identity of the transaction set forth in the affidavit with that charged to be a crime in the accusation is apparent.</p> <p>2. That instead of being charged with the offense of being a cheat and swindler one is charged by accusation with “cheating and swindling” will not of itself authorize the accusation to be quashed. That the offense charged is improperly denominated in an indictment or other accusation does not necessarily vitiate, such accusation. The test by which the sufficiency of the accusation, as well as the particular offense charged against the defendant, is to be determined is not the denomination which the pleader applies to the offense, but the nature of the criminal act alleged, and the fulness with which the act is set forth.</p> <p>3. An allegation that certain representations were fraudulent is a sufficient statement that such representations were made with' intent to defraud.</p> <p>3. (a) An intent to defraud by false representations is sufficiently alleged when such representations are charged as fraudulently made.</p> <p>3. (5) One may be defrauded by representations the truth or falsity of which has not been investigated.</p> <p>4. The solicitor of a city court has the right to amend an accusation, prior to arraignment; and, in the absence of proof to the contrary, interlineations appearing in an accusation will be presumed to have been made at the proper time and by the proper authority.</p> <p>5. Where a presentment is returned within the time required by the statute of limitations, and a nolle prosequi is thereafter entered thereon for any informality, the prosecution may be continued by an accusation in the city court having jurisdiction of the offense, provided such accusation be preferred within six months from the date of the order of nolle prosequi.</p> <p>6. While a new trial should be granted whenever it appears that the finding of a jury has been influenced by improper remarks of a judge, still, as some liberality of expression must be allowed the judge in ruling upon testimony, it should clearly be made to appear both that the remark was improper and that the movant’s case .was prejudiced thereby.</p> <p>7. The contents of a writing which has been lost or destroyed or otherwise has become inaccessible may be proved by a properly authenticated copy of that writing, appearing in the brief of evidence which was approved by the trial judge upon a former trial between the same parties.</p> <p>8. Assignments of error which do not direet the attention of the court to the specific error of which complaint is made will not be considered.</p> <p>SÍ. Where a paper containing the finding of a jury between the same parties is admitted by the court without concealment of the former verdict, and the jury are properly cautioned by the court, it is not to-be presumed that the jury were influenced in their finding by knowledge of the former verdict.</p> <p>10. A new trial will not be granted upon minor inaccuracies of a court’s-charge, appearing in disjointed fragments, where, by an examination of' the charge as a whole, the apparent errors are dissipated.</p> <p>11. Where a defendant is charged with the offense of being a common cheat and swindler by means of specific false representations, which he is alleged to have made, the fact that the party alleged to have been defrauded 'did not exercise reasonable diligence in preventing the fraud affords no defense to the accused.</p> <p>12. Where one, either by false representations or by fraudulent concealment of material facts, deceives prospective purchasers of property and induces them to purchase, to their damage, what they otherwise would not have purchased, the belief of the seller that he is giving full value to the purchaser is immaterial, unless the evidence shows that either the seller himself or some one else has acquainted the purchaser with all of the material facts as they really exist in relation to the transaction as to which he has been deceived. One can not be deceived by false representations which he knows to be false; but on the other hand, it-will not be presumed, in favor of one who has made false representations, that the party to whom these representations were made knew them to be untrue.</p> <p>13. The requests contained in the 18th and 19th grounds- of the amended motion are fully covered in the charge of the court to the jury, and hence it was not error to refuse these requests.</p> <p>14. The evidence authorized the verdict.</p>

<p>Accusation of misdemeanor, from city court of Bainbridge— Judge Harrell. January 6, 1908.</p>

<p>Indictment for arson, from Monroe superior court — Judge Beagan. October 15, 1907.</p>

<p>1. A ground of a motion for a new trial alleging error in admitting a written statement of tlie deceased as a dying declaration is without merit,, unless it sets out in substance the written statement admitted. This court will not refer to the brief of evidence for the purpose of completing an incomplete assignment of error.</p> <p>2. It was error to charge, on the subject of dying declarations that, “when a dissolution is approaching and the dead man has lost hope of life, and his mind feels the full consciousness of his condition, the solemnity of the scene gives to his statement the sanctity of truth.” The instruction gives undue emphasis to the weight which the jury should give-to such evidence.</p> <p>3. The written request to charge on the 'subject of dying declarations contains the true rules as to the admissibility of such declarations as evidence, and how they should be considered and weighed when treated as evidence; and the court erred in not giving it in charge.</p> <p>4. Where, on a trial upon an indictment for murder, the dying declarations of the deceased are introduced by the prosecution, it is error to' exclude proof offered by the defendant of other statements made by the deceased,' contradicting his dying declarations.</p> <p>5. When tested by the verdict, the erroneous rulings clearly appear to' have been harmless. The verdict, being manifestly based on other evidence, will not be set aside for errors as to evidence on which the jury plainly did not act.</p> <p>6. Where some of the evidence, and inferences fairly dedueible therefrom, tend to show voluntary manslaughter, a charge on that subject is not only proper, but demanded.</p>

Action for breach of contract, from city court of Macon — Judge I-Iodges. March 21, 1908. The Christophulos Café Company, a corporation, brought suit against John Phillips, to recover damages for breach of contract. By the contract, which was made a part of the petition, the defendant agreed to build for the plaintiff a counter and a refrigerator of certain dimensions, for specified sums, the job to be-completed on September 15, 1907.

<p>Action for damages, from city court of Richmond county — - Judge Hammond presiding. February 29, 1908.</p>

<p>Complaint, from city court of Bainbridge — Judge Harrell. April 20, 1908.</p>

<p>Accusation of cheating and swindling, from city court of Moultrie — Judge McKenzie. May 18, 1908.</p>

<p>Indictment for uttering forged cheek, from Warren superior court — Judge Worley. May 5, 1908.</p>

<p>Accusation of unlawful sale of liquor, from city court of Fitzgerald — Judge Jay. June 8, 1908.</p>

<p>Accusation of unlawful sale of liquor, from city court of Swainsboro — Judge Mitchell. June 8, 1908.</p>

Indictment for running freight-train on Sunday, from Douglas superior court- — Judge Edwards. June 15, 1908. Westfall was fried and convicted in the superior court of Douglas county, for a violation of section 420 of the Penal Code, relating to the running of freight-trains on the Sabbath day through anj'- county in this State.

<p>Certiorari, from Irwin superior court — Judge Whipple. March 10, 1908.</p>

<p>1. Proof that an alleged offense was committed in a designated town or city will not suffice to establish the fact of venue, and consequent jurisdiction, in a court whose jurisdiction is coextensive with a county.</p> <p>2. (By Russell, J.) In a prosecution for drunkenness upon a public street or highway, the evidence must show that the street or highway in question had been laid out by the city or used by the public as such,, and had become such by legislative enactment or enactment of a city council under its charter powers, or by dedication, prescription, or otherwise.</p>

<p>Accusation of carrying concealed weapon; from city court of Sparta — Judge Little. June 15, 1908.</p>

<p>Accusation of trespass, from city court of Sparta — Judge Little. June 15, 1908.</p>

<p>Accusation of disturbing divine worship, from city court of Sparta — Judge Little. June 15, 1908.</p>

<p>Accusation of carrying concealed weapon, from city court of Sparta — Judge Little. June 26, 1908.</p>

<p>Indictment for unlawful sale of liquor, from Crisp superior court — Judge Whipple. June 20, 1908.</p>

<p>Accusation of cheating and swindling, from city court of Quit-man — Judge McCall. June 18, 1908.</p>

<p>1. It is error to refuse to sanction a petition for certiorari, properly verified, when, according to the statement of the evidence contained in the petition, the finding sought to be reviewed is, for want of sufficient evidence, unwarranted.</p> <p>2. A petition for certiorari to correct errors' of the criminal court of Atlanta is properly verified by an affidavit in the form contained in §4638 of the Civil Code. In the absence of express legislation to that effect, the affidavit provided in §765 of the Penal Code has no reference to certioraries brought to review errors alleged to have been committed in the. criminal court of Atlanta; for the reason that such right of review is dependent upon general, and not special, provisions of law.</p>

<p>One who shoots with a pistol in the direction of another, situated within the range of the pistol, not intending to hit him, but intending to frighten him, is guilty of an assault.</p>

<p>Accusation of misdemeanor, from city court of Tifton — Judge Eve. June 13, 1908.</p>

<p>Motion for new trial, from city court of Bainbridge — Judge Harrell. July 14, 1908.</p>

<p>Accusation of larceny from house, from city court of Fort Haines — Judge Bambo. August 10, 1908.</p>

<p>Certiorari, from Macon superior court — Judge Littlejohn. May 15, 1908.</p>

<p>Accusation of assault and battery, from city court of Eastman - — Judge Griffin. Augtst 33, 1908.</p>

<p>This case is controlled by Gole v. State, 2 Ga. App. 734 (59 S. E. 24) j Walker v. State, 117 Ga. 323 (43 S. E. 737).</p>

<p>Accusation of unlawful sale of liquor, from city court of Fitzgerald — Judge Jay. July 12, 1908.</p>

<p>1. An exception in a petition for certiorari, that the lower court erred in. refusing to continue the trial of the cause, presents nothing for the consideration of the reviewing court, when it appears that no motion was-made at the trial to continue the case; and if the petition for certiorari contains no other assignment of error, it should be dismissed.</p> <p>2. The fact that a magistrate or a judge has extra judicially granted a. party’s sole counsel leave of absence, or has personally agreed to continue the trial of the case, does not require the grant of a continuance,, and especially is there no abuse of discretion in proceeding to try the cause, where the personal extrajudicial statement or promise that the cause would be continued is made, not by the judge presiding at the time of the trial, but by his predecessor in office, and no motion for a continuance is presented to the court.</p> <p>3. A magistrate, when not presiding in court, does not act judicially; and. one who absents himself from court,-upon a promise made by the magistrate when not actually presiding, that a leave of absence will be-granted, or that the cause will be continued, does so at his own risk.</p>

<p>1. The phrase “at their place of business,” appearing in the general prohibition statute of 1907, includes in its meaning the immediate room or place in which the business in question is conducted, also any near-by room or place used by the proprietor in connection with the business or in such a relation to the actual place of business as to indicate that the near-by room, compartment, etc., is a convenient place which the proprietor would probably use for keeping therein such liquors as he might desire to furnish others for the purpose' of inducing trade, or for keeping therein liquors intended -for unlawful sale under cover of the business carried on in the main place.</p> <p>(a) The preposition “at” has a great relativity of meaning, conforming readily to the nature of the thing which constitutes its grammatical object and to the principal notion in the mind of the person using it. It generally includes in its meaning all that “in” would, but not quite as much as “in and near” would.</p> <p>(b) “A place of business,” within the purview of the State prohibition law, means a place devoted by the proprietor to the carrying on of some form of trade or commerce.</p> <p>2. An officer who discovers a person keeping intoxicating liquor at his.. place of business may arrest him without a warrant, and may seize-the liquor for the purpose of using it as evidence.</p> <p>3. Where a defendant is indicted under two names, alleged by an alias dictus, it is necessary only that the State should show that he is commonly known by either of them.</p>