Volume 5 — Georgia Appellate Reports

<p>Petition for certiorari, from Spalding superior court — Judge Beagan. June 16, 1908.</p> <p>This case came here upon exceptions to the refusal of the judge , of the superior court to sanction a certiorari brought to review the conviction of the petitioner in the police court of Griffin. The accusation is not in the record, but it is recited that he stood “charged with the offense of keeping for sale a certain quantity of spirituous and intoxicating liquor in the city of Griffin on the second day of May, 1908, in violation of the city ordinance." A copy of the ordinance appears in the record and is as follows: “It shall be unlawful for any person to keep a blind tiger or keep for illegal sale, barter, or exchange any vinous, spirituous, or malt liquors within the corporate limits of the city of Griffin.” 'The accused demurred to the accusation, on the following grounds: “That the offense charged in said accusation is an offense against a penal statute of this State, to wit: Georgia Laws 1907 [the State Prohibition Act], p. 81, and the City of Griffin has no power or authority to try this defendant for said offense. The enactment by the General Assembly of the said statute, making it a State offense to keep liquor for sale, deprived the municipal authorities of the City of Griffin (they having no jurisdiction over State offenses) of the power to try and punish this defendant for committing the act alleged in the accusation.” The proof was that the defendant, in a certain railroad cut in Griffin, made two separate sales of whisky to the witness for the prosecution.</p>

<p>1. Upon the question as to whether the rooms in which the defendant kept intoxicating liquors were “at his place of business,” the decision rendered this day in the case of Jenkins v. State, 4 Ga. App. 859 (62 S. E. 574), is controlling.</p> <p>2. The trial judge may, without invading the province of the jury, define to them what a place of business is, if he leaves to the jury the determination of whether the particular place in question is, under the facts, within the definition. Such places as merchandising establishments, stores, restaurants, “soft-drink” dispensaries, etc., are judicially recognized as places, of business, and the court may legally so inform the jury.</p> <p>'3. A near-by room which a person uses in connection with the business conducted by him in his regular place of business is a part of his place of business, within the purview of the general prohibition statute.</p> <p>4. If a person should make a common practice of selling liquor illegally at a fixed place, that place would thereby become his place of business; but a single sale of liquor, or even sporadic sales, will not ipso facto convert the place where the sale occurs into the seller’s place of business, in accordance with the meaning of that phrase as found in the prohibition act of 1907.</p>

<p>The verdict is without any evidence to support it, and is therefore contrary to law, and a new trial should' have been granted.</p>

No. 1335. Habeas corpus, from city court of Macon — Judge? Hodges. July 20, 1908. No. 1358. Certiorari, from Bibb superior court — Judge Feitonv August 1, 1908. No. 1362. Habeas corpus, from city court of Macon — Judge' Hodges. August 15, 1908. No. 1376. Certiorari, from Chatham superior court — Judge Charlton. July 31, 1908. Nos. 1404, 1405. Habeas corpus, from city court of Macon— Judge Hodges. September 17, 1908.

<p>1. The laws in force at the situs of a tort usually .determine the civil results of its commission. In suits based on torts committed in other' States, the courts of this State will enforce and will be governed by the lex loci delicti, subject to the usual exceptions recognized as being applicable in eases involving private international law.</p> <p>(a) The courts of this State will not enforce a foreign law which is solely penal, or which contravenes the public policy of this State.</p> <p>(&) The courts of this State, while yielding in the construction of the statutes of another State to the interpretation and effect given by the decisions of the highest courts of that State, will nevertheless determine for themselves whether the statute as construed and applied is penal, or violative of the- public policy of this State.</p> <p>(c) The statute of the State of Alabama authorizing a civil action for unlawful homicides, as construed and applied by the Supreme Court of that State, is not penal in the international sense.</p> <p>(d) A statute is not penal in the international sense merely because it award’s only punitive damages, measuring the amount by the culpability of the wrong-doer.</p> <p>2. The statute of the State of Alabama authorizing a civil action for negligent homicide is not violative of the public policy of this State because the measure of damages to be awarded under It is dissimilar to the measure prescribed in like cases by the statutes of this State.</p> <p>(a) The policy of this State tends toward the preservation of actions beyond the death of the parties; and the courts, therefore, do not hesi-. tate to enforce the statutes of other States and foreign countries substantially similar to the English statute known as Lord Campbell’s act, though the elements of damage sought to be eompensatecf may be variant from what is deemed adequate or just in this State.</p> <p>(&) The courts of this State will not exclude Alabama suitors, so long as the courts of that State do not exclude Georgia suitors. Only in this sense is the expression “reciprocity is comity” applicable to causes of action springing from wrongful deaths occurring in Alabama.</p> <p>(c) It is not competent for any foreign legislature to prescribe what laws shall be recognized and enforced in the courts of this State, even though the law as to which cognizance is sought to be excluded is a statute of the State whose legislature seeks to create the exclusion.</p> <p>3. A railway company owes the duty of exercising ordinary care and diligence to a person gratuitously riding upon a- train by consent of the conductor, in the absence of collusion between him and the conductor to defraud the company.</p> <p>4. A writing prepared by a person and containing special provisions for his benefit will be most strongly -construed against him.</p> <p>5. The record is free from error.</p>

<p>Indictment for unlawful sale of liquor, from Terrell superior court — Judge Worrill. July 27, 1908.</p>

<p>1. An action for damages, brought agaidst the Rome. dispensary jointly with the dispensary commissioners and’ manager, based upon the illegal sale of whisky to a minor son of the plaintiff, can not be maintained.</p> <p>2. Section 3871 of the Civil Code, which declares that “a father, or if the father be dead', a mother, shall have a right of action against any person who sells or furnishes spirituous liquors to his or her son under age, for his own use, and without his or her permission,” confers a civil right entirely distinct from the penalty imposed by section 444 of the Penal Code.</p> <p>3. The right of action conferred by the terms of section 3871 of the Civil' Code does not extend to government officers acting officially. To charge one with civil liability for damage due to the sale of intoxicating liquor to a minor, it must appear that the sale 'was made by the defendant in person, or in his presence and with his consent, either expressed or implied.</p> <p>4. The officers of a dispensary created by law are officers of the government, and are not suable as such, except by express provision of law.</p> <p>5. Where pleadings are ambiguous, they will be most strongly construed against the pleader, especially where the ambiguity is pointed out by special demurrer and no effort to amend is made.</p>

<p>Distraint, from city court of Miller county — Judge Bush. April. 17, 1908.</p>

<p>1. The possession of either cards or money may authorize the inference, that a defendant who was present at an unlawful game of cards was engaged therein,, and, upon proof of an unlawful game, he may legally-be convicted of participating therein.</p> <p>2. That the prosecutor in a criminal case, without the knowledge of the-defendant or his counsel, entered the jury room, where the jury were considering the case, and delivered to them a pack of cards, which had" been identified during the trial as having been used by the defendant, in the unlawful game in question, but which had not been admitted in, evidence by the court, is good ground for a new trial.</p>

<p>1. In an indictment charging the defendant with having used “profane, obscene, and vulgar” language in the presence of females, the word “profane” will be regarded as surplusage, where the language set forth is, as a matter of law, not profane, but is obscene and vulgar.</p> <p>'2. The object of section 396 of the Penal Code, so far as it relates to obscene and vulgar language, is the protection of the modesty of women from unreasonable invasions.</p> <p>(a) As used in this code section, the phrase “obscene and vulgar language” includes any foul words which would reasonably offend the sense of modesty and decency of the woman, or women, or any of them, in whose presence the \^¡|rds were spoken, under all the circumstances of the case.</p> <p>■(B) Language may be obscene and vulgar within the purview of this code section, although it has no reference to sexual intercourse or the sexual organs.</p> <p>3. “Words get their point and meaning almost entirely from the time, place, and circumstances, and intent with which they are used;” consequently it is usually issuable, and therefore a question for the jury, as to whether any particular language is actually obscene and vulgar. There are, however, certain words which, by common consent of mankind, are obscene and vulgar, when used in the presence of women, except under exceptional and necessary circumstances. Such words may be said to be prima facie obscene and vulgar.</p> <p><{a) Any gross reference to a woman’s private parts, or to the adjacent portions of her person, is, in this sense, prima facie obscene and vulgar.</p> <p>i(B) Where a minister of the gospel, from the pulpit, in the presence of a mixed audience, aims at a female member of the congregation an indecent jest as to her buttocks, and especially as to the size of them, the language is prima facie obscene and vulgar; and the time, place, and circumstances are such as to exaggerate the indecency, rather than to relieve the words of their ordinary objectionableness; therefore, in such a case, the surroundings being conceded by the defendant, the court may properly instruct the jury that the defendant would be guilty, if, without sufficient provocation, he used the language in the hearing of females.</p> <p>Ke) A written request to charge may be refused, where the same subject is fully and fairly covered in the general charge.</p> <p>•4. There is a general presumption that the ordinary human faculties are possessed by every individual.</p> <p>4a) In the absence of proof to the contrary the law presumes soundness both as to mental and bodily functions.</p> <p>(B) A person is presumed to have an ordinary capacity for hearing, in the absence of some reason shown to the contrary.</p> <p>3. The court erred in refusing a written request to charge the jury that it was necessary for the State to show that the crime was committed in the county of the prosecution; but, under the particular circumstances, it was not reversible error.</p> <p>6. The testimony of a witness is not to be excluded merely because he prefaces his statement by an expression of unwillingness to commit himself absolutely and positively to the accuracy of what he says. Thawitness may give his best recollection, the weight of his testimony being left as a matter for the consideration of the jury.</p> <p>7. Matters without prima facie relevancy may become relevant, by being: interwoven into a conversation which is relevant and admissible.</p> <p>8. A witness, though not an expert, may testify as to his judgment whether a person was within hearing distance of a remark made by another.</p> <p>9. The defendant was clearly guilty; and the record.presents no reversible-error.</p>

<p>In a ease in which all of the testimony is positive, it is erroneous to instruct the jury upon the comparative weight of positive and negative testimony. In any ease it is reversible error to charge the jury, without qualification, that they are to believe positive testimony in preference to negative. It is for the jury to determine for themselves the comparative weight of positive and negative testimony.</p>

<p>Every person accused of crime is entitled to a public trial. The presid- ■ ing judge, in the exercise of a sound discretion, may, without violating, • this right, exclude from the court-room during the trial, for any sufficient special reason, such portion of the spectators as fall within the class to which the reason applies. However, where.the judge, without-further reason than that the testimony will relate to matters ordinarily indecent to be mentioned, orders, over the objection of the defendant,, that “the court-room be cleared of every one not connected with the ease,” he abuses his discretion and violates the defendant’s right to a public trial. Prejudice to the defendant is conclusively to be presumed from such an order, and a new trial necessarily results.</p>

<p>Certiorari, from Irwin superior court — -Judge Whipple. July 23, 1908.</p>

<p>Accusation of larceny, from city court of Miller county — Judge Calhoun presiding. July 17, 1908.</p>

<p>Indictment for shooting at another, from Coweta superior court. —Judge Freeman. July 29, 1908.</p>

<p>Accusation of carrying concealed weapon, from city court of Dawson — Judge Edwards. August 1, .1908.</p>

<p>Indictment for larceny after trust, from Chatham superior court — Judge Seabrook. August 15, 1908.</p>

<p>Accusation of misdemeanor, from city court of Leesburg— Judge Long. August 26, 1908.</p>

<p>’Accusation of unlawful sale of liquor, from city court of La-Grange — Judge Harwell. August 19, 1908.</p>

<p>Where the same room or premises is occupied both as a place of business and for residential or other private use, the proprietor can not lawfully keep intoxicating liquors there during any of the hours when the place is open for business, or when members of the public are admitted therein. During those hours in which the place is closed to public access and all business has ceased, and the room or prerhises is devoted to no other than private use, intoxicating liquors may be kept there, provided they are not allowed to remain there upon the reopening of the place for business.</p>

<p>Certiorari, from Wayne superior court — Judge Parker. August 29, 1908.</p>

<p>Appeal, from Cobb superior court — Judge Gober, January 7, 1908.</p>

<p>A. dog is such property as to be subject to levy and sale for the debts of his owner.</p>

<p>Appeal, from Stewart superior court — Judge Littlejohn. February 14, 1908.</p>

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

<p>1. A married woman has power to contract as to her separate estate, subject only to the limitations, that she can make no contract of surety-ship, she can not assume -to, or pay to, a creditor of the husband a debt of the latter, she can not sell her separate estate to her husband without the consent of the superior court.</p> <p>■(a) In the absence of fraud or undue influence, she may give her property or money to her husband, in order that he may pay his debts; and' in the case of a gift, the burden of showing fraud or undue influence is upon her.</p> <p>(6) In the absence of fraud or collusion, she may borrow money or sell property (the husband’s creditor not being the lender or purchaser, as the case may be) to get money to furnish to her husband, in order that he may pay his debts, notwithstanding the lender or purchaser knows the purpose.</p> <p>(c) She may legally procure a third person to pay the debt of her husband', and will be bound by her contract to reimburse him in so doing.</p> <p>2. Where a husband who is a customer of a bank, and who is indebted to - it by a past-due note, brings into the bank the cashier’s check of another bank, payable tó his order, indorses it, places it to his deposit account, and gives his personal check thereon in settlement of his note due the bank, the bank, in the absence of mala fides, is not subject to an action by his wife to recover the value of the cashier’s cheek, although it was obtained with her money, and although the bank so accepting it has cause to suspect that tile wife was in some way instrumental in procuring it for the husband.</p> <p>(а) The purchaser for value of a commercial paper who takes it from the apparent owner acquires a good title as against ail undisclosed true owner, in the absence of mala fides. Mere want of such caution in the purchaser as ordinarily prudent men usually exercise in other transactions is not sufficient to defeat his title.</p> <p>(б) Ordinarily, where commercial paper is offered in the usual course of business, the purchaser need not make inquiry as to the ownership, when the transaction appears regular on its face.</p> <p>(c) If the purchaser knows or has reasonable cause to believe that the apparent owner is not the true owner, and enters into privity or participation in the fraud upon the true title, his title is defeasible.</p> <p>(d) There is a marked difference between “reasonable cause to believe” and “reasonable cause to suspect.”</p> <p>(e) The verdict in the case at bar is without evidence to support it.</p>

<p>Action on contract, from city court of Macon — Judge Hodges.. March 21, 1908.</p> <p>Friesleben sued the hat company for the breach of a contract of employment as a traveling salesman at $115 per month, payable: monthly, the employment extending from October 1, 1903, to October 1, 1904, and alleged that in the latter part of the month of May, the defendants “dispensed with his .services, — in effect discharging him, — thereby committing a breach of said contract.”' The hat company pleaded that they were adjudicated bankrupts: on May 27 and discharged on August 5. Th.e pleadings and evidence made the following case: On May 27 the hat company were adjudicated bankrupts; and on June 7 Friesleben filed his. proof of claim against the bankrupts in the sum of $575, for the: months of May, June, July, August,' and September. The bankrupts prepared written objections thereto, denying that Friesleben was a creditor in manner and form as alleged, and denying that he-had any provable claim against them or the estate in bankruptcy,, except for his salary from May 1 to May 27 at the rate of $115 per month; and though these objections were not formally filed,, arguments of counsel for both parties were heard thereon. Friesleben, on an intimation from the referee that he would sustain the-position of the bankrupts, and, as the record states, upon the referee’s order, withdrew this proof of claim, and on July 13 filed another, wherein he claimed only salary from May 1 to June 1. This claim was allowed and dividends were paid thereon. It was agreed, at the time, that no point should be made because the claim included the four days in May following the 27th. After the bankrupts’ discharge in bankruptcy, Friesleben sued, on the same contract, for the wages of the months of June, July, August, and September, and was met by a plea of discharge in bankruptcy. Be obtained a judgment, and the hat company except.</p>

<p>The evidence sustained the verdict. The exceptions to the charge present no reversible error.</p>

<p>1. If the nature of the master’s work is complex and involves the presence and co-operation of a number of laborers, so situated that independent individual action on their respective parts would render the doing of the work unsafe, the law imposes on the master the duty of organizing and maintaining a system by which the work can be done with reasonable safety.</p> <p>2. If the master chooses to leave to an employee the regulation of matters which he ought to have provided for by specific rules, such employee will be regarded as his representative, and not as a fellow servant of the laborers who do his work.</p> <p>3. The courts of this State are now thoroughly committed to the proposition that any employee, regardless of rank or title, who performs with the master’s consent a non-delegable duty is not a fellow servant with the laborers who do the work.</p> <p>4. The giving of orders as to the system of work, even though they effect, but a single particular piece of work, is a duty of the master; and is. to be distinguished from the giving of work signals which merely aid the successful and satisfactory execution of the labor at hand.</p> <p>5. The court erred in granting the nonsuit.</p>

<p>Complaint — appeal, from Miller superior court — Judge Wor-TÍ11. February 25, 1908.</p>

Complaint — appeal, from Liberty superior court — Judge Sea-brook. February 17, 1908. The plaintiffs are members of a firm engaged in the business of selling goods at wholesale at Baltimore, Maryland. Held: as a matter of law, that this did not make out a defense, and directed a verdict for the plaintiffs. The ■defendant himself and two other witnesses offered to testify that the agent was instructed to have the goods insured.

<p>Motion to vacate judgment, from city court of Atlanta — Judge Eeid. March 21, 1908.</p>

Trover, from city court of Forsyth — Judge Clark. May 2,. 1908. The plaintiff sold to the defendant two mules and took from him an instrument which, so far as is material to the case, is as follows: “By October 1, 1906, . . I promise to pay Robert. Mitchell, or order, $195. . -. This note . . being for the purchase-money for [described mules]. Title to above-described, property to remain in Robert Mitchell till this note is paid in full.

<p>Action for damages, from city court of Bichmond county — ■ ■Judge Eve. May 23, 1908.</p> <p>The petition, omitting formal and immaterial parts, is as follows: “2. That on the 17th day of September, 1906, plaintiff was a passenger on one of the regular passenger-trains of the said ■defendant, which train was traveling over the defendant’s line of road in the State of South Carolina. 3. That plaintiff had purchased a ticket to Woodlawn, South Carolina, which is a station at which the said train upon which plaintiff was traveling was régularly scheduled to stop for the reception and discharge of passengers. 4. That as said train approached the said station, and was apparently slowing down to stop at said station, and was traveling at a slow rate of speed, not exceeding four or five miles .an hour, plaintiff went out upon the platform preparatory to alighting at the said station. '5. That when plaintiff was so situated, the agents and servants of the said defendant in charge of the movements of the train caused the said train, without warning .and with a sudden, violent, unexpected, and negligent jerk, to ■quicken its speed. 6. That plaintiff, by reason of said jerk, was thrown heavily to the ground. 7. That as a result of said fall, plaintiff’s ankle was shattered [and certain enumerated injuries ensued]. 8. That in matters and things herein related, plaintiff was in the exercise of all reasonable care and diligence and was free from fault. 9. That the said fall was due wholly to the defendant’s negligence.”</p> <p>Besides ¡a general demurrer, the following special demurrers were urged by the defendant: To paragraph 3, because plaintiff fails to aver the place where he purchased a ticket over the defendant’s road, and where and when he became a passenger on defendant’s train. To paragraph 4, because plaintiff fails to state bis position on the train before he went out upon the platform; ■also because he fails to aver any sufficient reason for riding on ■the platform; also fails to aver the character of the platform, whether it had a railing around it or not; also fails to aver his exact position on the car; also because he fails to aver how far the train was from the station when he went out on the platform. To paragraph 5, because plaintiff fails to aver whether or not the train stopped at Woodlawn station. To paragraph 6, because plaintiff fails to aver how far the train was from the station when he was thrown to the ground. Because the allegations of paragraph 7 are too uncertain for plaintiff to deny or traverse the same. To paragraph 8, because it alleges a conclusion, and not the facts upon which it is based. To paragraph 9, because plaintiff fails to allege wherein the negligence of this defendant consisted.</p> <p>The court overruled the demurrers, and the defendant excepts.</p>

<p>Indictment for assault with intent to murder, from Morgan superior court — Judge Lewis. May 33, 1908.</p>

<p>Motion to set aside judgment, from city court of Fitzgerald— Judge Jay. June 13, 1908.</p> <p>Suit against Mrs. J. B. Smith and J. L. Stephens, as joint makers of a promissory note payable to O. D. Crawley and indorsed by .him to the First National Bank of Fitzgerald, was brought by the bank, in the city court, on December 3, 1907; and, no defense having been filed, judgment was rendered against the defendants, February 37, 1908. At the March term of the court Mrs. Smith filed a motion to set aside the judgment; the court sustained a demurrer filed by the bank, and dismissed her petition, and she excepted.</p> <p>The movant's petition alleged, in substance, that, after the suit had been filed, Stephens, her codefendant, undertook to effect a settlement with Crawley and the bank, and executed to the bank a note signed by himself as principal and by one Paulk as surety or joint maker, and payable in 1908 or 1909, which was delivered, prior to December 31, 1907, to E. K. Farmer, cashier of the bank, and accepted by him, as cashier, in settlement of the note sued on; and Farmer so informed her agent and her attorney, in response to inquiry made in her behalf. Farmer has known since the institution of the suit that she is married and that she was married when she signed the note sued on, and he was informed of this fact before the other note mentioned was delivered to him, and also of the fact that, although her name appeared as principal or joint maker on the note sued on, she signed it as surety for Stephens. On December 31, 1907, she instituted suit by attachment against Stephens for the collection -of an account, the attachment being based on the ground that he was about to move beyond the limits of the county; and he thereupon executed and delivered to the levying officer good and sufficient bonds. Thereafter Stephens secured from Farmer the note indorsed by Paulk which Farmer had told petitioner’s agent was a satisfactory adjustment of the note sued on. Kelying on the said statement of Farmer as to the settlement of the note, she took no step to protect herself against the liability she had incurred by signing it as surety. She had a meritorious defense to the suit, to wit, that she was surety on the note and a married woman as stated, and that she signed and delivered it to Stephens on Sunday; and she would have filed this defense if she and her agent and attorney had not been deceived and misled by the said statement of Farmer, and would have asked, at any rate, that judgment be taken against her as surety, and not as principal or joint maker. She did not know that a judgment would be insisted on, but relied on Farmer’s statements that the note had been settled by a renewal note. Had she known that the bank would ask judgment she would have set up the defense' stated above, together with the statements made to her agents by Farmer, which ought in good conscience to have prevented a judgment against her. Throughout the- proceedings she acted in good faith, relied on the statements of the cashier of the bank, and was not lacking in diligence. Stephens has, since the institution of the suit and since the said statements of the cashier, moved his effects out of the county, and the petitioner’s risk and liability have been increased. She had no notice, before the judgment was taken, that Stephens had taken up his renewal note, from the plaintiff, or that judgment would be taken against her; otherwise she would have appeared and filed a plea and answer to the suit.</p> <p>The demurrer was on the grounds: (1) The petition sets forth no sufficient ground upon which to set aside the judgment. (2) It fails to set forth a valid defense to the suit. (3) The defense set forth as being a meritorious defense is not in law such a defense; because, under the facts therein stated, even if the note had been signed on Sunday, it would be valid and binding; and because the defense that the petitioner was a married woman and a surety could not be set up against the bank, an innocent holder of the note; and it does not appear that such a defense would have been available against the original payee, for it does not appear from the petition that he contracted with her as a surety, or that he knew she signed the note as surety. (4) The failure to file a defense was due to the negligence of the petitioner.</p>

Action for damages, from city court of Floyd county — Judge Hamilton. June 8, 1908. The petition as amended alleged substantially as follows: Plaintiff was, when injured, an employee of the defendant, in the •capacity of an apprentice moulder, whose duties were the same as 'those of a moulder, except that the class of work is not as good, for the reason that he was learning the trade.

<p>Trover, from city court of Brunswick — Judge Krauss. June 19, 1908.</p>

<p>Levy and claim, from city court of Dalton — Judge Longley, June 9, 1908.</p>

<p>Action for damages, from city court of Nashville — Judge Peeples. June 20, 1908.</p>

<p>Levy and claim, from city court of Dalton- — -Judge Longley. June 9, 1908.</p>

<p>Upon the dismissal of a certiorari sued out by a claimant he and his security upon the certiorari bond are liable for the costs. But it is error, in a claim ease, to include in the judgment dismissing the certiorari a judgment against the principal in the certiorari bond, and his security, for the amount of the fi. fa. which has been levied upon the property adjudged not to be the claimant’s. The liability of the principal and security on a certiorari bond, for the eventual condemnation-money in a claim case, extends only to the costs and such damages as may by a jury be assessed against the claimant by reason of his interposition of the claim.</p>

<p>Complaint, from city court of Macon — Judge Hodges. June-13, 1908.</p> <p>The action was by Marie W. Sexton against Mrs. W. C. Groves: as maker of a promissory note payable to the order of Thomas F.. Beytaugh. The court, on demurrer, struck the defendant’s plea,, and judgment was rendered for the amount of the note ($251.50- and interest, and 10 per cent, thereon as attorney’s fees). She.excepted to the judgment sustaining the demurrer.</p> <p>The demurrer was on the grounds, that the plea is insufficient in law, that it fails to set forth with certainty and particularity the-alleged fraud and misrepresentation, and that, so far as it attempts to set up a partial payment, it is insufficient because it: fails to allege when, by whom, and where the payment was made.. Those parts of the plea which relate to fraud and to payment are: “2. Defendant denies the second paragraph of said plaintiff’s petition [alleging execution and delivery of the note], and says-that a note signed by the defendant was signed under misrepresentation. Defendant thought she was signing a note for $100, instead of one for $250.51. Defendant says that one Mr. Thomas. Beatey came to her and represented to her that he could settle the cases against her husband, W. C. Groves, charged with selling-liquor and gambling, for the sum of $100, and that she signed the note, thinking it was for $100, in order to settle the cases against-her husband for gambling. 3. Defendant says that the note was obtained by fraud and misrepresentation on the part of Beatey, and she pleads fraud and says she ought not to be made to pay this note. She says further that she has made a payment on this-note of $60 which she thought was for $100, leaving a balance due-on the note of only $40, which she is now ready to pay. . Defendant now . . pleads fraud and prays the judgment of the court in her favor.”</p>

<p>Complaint, from city court of Macon — Judge Hodges. June 37, 1908.</p>

<p>Action on bond — -appeal, from Fulton superior court — Judge Ellis. May 12, 1908,</p>

<p>1. Every person has the right to resist an illegal arrest, whether attempted by an officer or by a private individual, and, in resistance,, may use as much force as is necessary for the purpose, and no more.</p> <p>2. An officer has no right to proceed to the extremity of shooting one whom he is attempting to arrest for a violation of a municipal ordinance,, in order to prevent his escape, even though the offender can not be. taken otherwise.</p> <p>3. If a person attempts to avoid an illegal arrest by flight, and is shot at by an officer who is attempting to make the illegal arrest, he may shoot the officer, if it reasonably appears to him that it is necessary to-do so, either to prevent his illegal arrest, to save his life, or to protect, himself from serious bodily injury.</p> <p>4. A private citizen who joins in a felonious attempt by an officer to make-an illegal arrest occupies no better position than the officer himself. If the party whom the officer was attempting illegally to arrest would have been justifiable in killing the officer, he would be also justifiable, in killing a private citizen actually assisting the officer in the commission of the felonious act.</p>

<p>1. The motion to dismiss the writ of error is wholly without merit.</p> <p>2. Parol evidence of the contents of a written contract is inadmissible,, where it plainly appears that the writing itself is accessible.</p> <p>3. A written contract can not be abrogated by one of the parties without, the assenf of the other.</p> <p>4. The contract mentioned in the labor-contract act of 1903 (Acts of' 1903, p. 90) must be definite and unambiguous as to the time when, the laborer’s term of service is to begin and end. A contract in which it is stipulated that the employee is “to work a month” with the-employer, but without any agreement as to when the month is to begin, or end, is too vague and indefinite to be the basis of a criminal prosecution; for the reason that the time may not have been reached for-the contract to begin, and the employee may still have the right to-repay the advances obtained by him.</p>

<p>Indictment for pointing pistol at another, from city court of Nall county- — -Judge Boone. August 26, 1908.</p>

<p>Accusation of cheating, etc., from city court of Miller county— •Judge Bush. September 12, 1908.</p>

<p>Accusation of cheating, etc., from city court of Lexington— •Judge Cloud. August 20, 1908.</p>

<p>The evidence in behalf of the State was wholly circumstantial, and, not’. being inconsistent with a reasonable hypothesis of the defendant’s innocence, the conviction of the defendant was unauthorized.</p>

<p>Certiorari, from Fulton superior court — Judge Ellis. September 16, 1908.</p>

Accusation of misdemeanor, from city court of Ashburn — Judge Hawkins. August 27, 1908. The accusation charged Holt with the offense of a misdemeanor, for that the said . .

<p>Accusation of resisting officer, from city court of Dalton — -Judge Longley. September 5, 1908.</p>

<p>Accusation of stabbing, from city court of Dalton — Judge Longley. August 22, 1908.</p>

<p>Action for damages, from city court of Richmond county— Judge Eve. June 19, 1908.</p>

<p>Complaint, from city court'of Yaldosta — Judge Smith. January 13, 1908.</p>

<p>Action for damages, from city court of Albany — Judge Crosland. March 9, 1908.</p>

<p>1. There is no merit in the motion to dismiss the bill of exceptions.</p> <p>'2. In a suit on a promissory note, against three defendants, a plea by two of the defendants, that they were sureties on the note, and setting up as a defense a total failure of the consideration of the note as to the principal, was improperly stricken.</p>

<p>A married woman can not make any contract of suretyship binding her separate estate; and, therefore, where a married woman is sued' as one-of the joint makers of a promissory note, and pleads her marriage and suretyship as a defense, and the only conclusion legally deducible-from the evidence is that she signed the note as surety, a verdict-against her is contrary to law.</p>

<p>Trover, from city court of Miller county — Judge Bush. February 28, 1908.</p> <p>The action was for the recovery of sheep owned by the plaintiff and impounded by the defendant, who was marshal of the City of Colquitt, and who set up that he was holding them under an ordinance of the city, the sheep having been found running at large in the streets, and the plaintiff refusing to pay the impounding fee prescribed by the ordinance. The verdict was for the defendant. 'The plaintiff excepted to the overruling of its motion for a new trial, which was on the grounds that the verdict was contrary to law, evidence, etc.</p>

<p>Complaint, from city court of Dublin — Judge Burch. March 31, 1908. .</p>

<p>1. Reasonable certainty is all that is necessary to render pleadings exempt from attack by special demurrey.</p> <p>2. It is the duty of a steam-railway company to exercise ordinary care to-keep its tracks and right of way free from combustible materials whereby fire from its locomotives may be communicated to adjacent property. An action will lie for negligence in this respect, though the engine from which the fire escaped was properly equipped and prudently handled.</p> <p>3. The liability of a steam-railway company for damage resulting from its failure to keep its right of way reasonably clear of combustible materials, likely to be ignited by passing locomotives, is not defeated by the fact that the lands of the adjacent owner are in a similar-condition.</p> <p>4. Where a plaintiff shows that he was in possession of turpentine and resin, produced but still remaining on the pine trees, but does not show title to the land, the measure of damages for a destruction of the turpentine and resin is its market value.</p> <p>5. No error appears.</p>

<p>1. The presumption of negligence does not arise against a railway company for damages done to person or property, until it appears that the-proximate cause of the injury was occasioned through the operation of its “locomotives, cars, or other machinery,” or by the act or misfeasance of some person in its employment and service.</p> <p>2. Independently of the presumption of negligence, the plaintiff in the-present action made sufficient proof of his case to require a submission of it to the jury; and it was erroneous for the court to grant a. nonsuit.</p>

Action for damages, from city court of Macon — Judge Hodges. June 16, 1908. Hubbard was employed by the street-railway company as assistant engineer, and at the time his cause of action arose he was acting as engineer. His duties related to the operation of 'a stationary engine in the power plant of the defendant company. A part of the machinery was a pump, to which was attached a lubricator. It became Hubbard’s duty to oil it.

Complaint, from city court of Atlanta — Judge Beid. June 19, 1908. Mrs. Thompson sued Mrs. Beams on a series of notes, which on their faces were negotiable, and which, according to their terms, were past due. In the notes it is expressly stipulated, that as to the maturity of the notes, time is of the essence, and that if as many as three of the notes should be due and remain unpaid for as much as thirty days, the entire series should therefrom become due at once.

Indictment for larceny from the house, from Spalding superior court — Judge Beagan. September 16, 1908.

<p>Accusation of larceny from house, from city court of Augusta— Judge Eve. July 15, 1908.</p>

<p>1. If a long period intervenes between the threat and the act, and there are opportunities of doing the threatened injury and no attempt to do it, the probative force of the threat would be greatly weakened. If between the threat and the act a feeling of ill-will which inspired the threat has changed to a feeling of good will and friendly relations, the probative value of the threat would be negligible.</p> <p>2. The res gestse which show a shooting to have been accidental are sufficient to overcome any inference of intentional shooting, arising from proof of threats.</p> <p>3. To constitute an assault with intent to murder, malice and intent to kill must appear. The evidence in this case shows neither malice nor the intent to kill, and the verdict must be set aside as contrary to law.</p>

<p>Accusations of violating prohibition law, from city court of Mason — Judge Hodges. September 19, 1908.</p>

<p>Accusation of unlawful sale, of liquor, from city court of G-riffin —Judge Patterson. October 10, 1908.</p>

<p>Accusation of obstructing legal process, from city court of Elberton — Judge Proffitt. August 19, 1908.</p>

<p>Illegality, from city court of Sandersville — ’Judge Brannen presiding. March 25, 1908.</p>

<p>1. Where a statute specifies a time within which a public officer is to perform an official act regarding the rights of others, it is merely directory as to the time within which the' act is to be ¿lone, unless, from the nature of the act or the phraseology of the statute, the designation of the time must be considered a limitation on the power of the officer.</p> <p>2. That part of section 7 of the act of 1903, establishing the city court of Waynesboro, which relates to the time when a motion for a new trial must be filed by the defendant and passed upon by the judge of the court, is directory merely so far as it applies to the act of the judge. It is mandatory as applied to the movant, unless further time for filing the motion for a new trial is, for good cause and in his discretion, given by the judge.</p> <p>3. There is no merit in the other grounds of the motion to dismiss the motion for a new trial.</p>

<p>Complaint, from city court of Carrollton — Judge Iiodnett.. April 22, 1908.</p>

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

<p>Action for damages, from city court of Atlanta — -Judge Eeid. June 1, 1908.</p>

<p>Complaint — appeal, from Floyd superior court — Judge Wright. •June 24, 1908.</p> <p>Eagan sued and recovered judgment against Arnold & Morrison; •and to the overruling of a motion for a new trial the defendants bring error. The defendants were formerly partners in business. •On July 8, 1903, they dissolved partnership, Morrison retiring and Arnold continuing in business. In September, 1903, they joined' in executing a promissory note for $49.21 to Eagan, for a debt previously contracted by the partnership. In 1905 Arnold deeded .his property to a trustee, reciting that -he wag indebted to a number of persons listed in the conveyance, in approximately .the amount stated opposite the name of each person listed, and directed the trustee to sell the property and pay these debts named, if the creditors would accept the composition, otherwise to hold the proceeds to his credit. In this conveyance a debt to Eagan of $233.37 was listed; also a debt to Morrison of $500. Morrison agreed to release his debt entirely if the other creditors would accept the composition. ITpon this paper the following agreement was endorsed: "We agree to the foregoing agreement so far as our debt to T. P. Arnold is concerned.” This was signed by all the creditors, including Eagan. The trustee sold the property and sent to Eagan •a check for his proportionate part of the sum realized, and he accepted it. Through this transaction both defendants claimed to be .released. Eagan claimed that the sum of $233.37 named in the proposition of composition as being due him was the exact amount of an individual debt contracted by Arnold after the giving of the note, and that the note was not included in this sum. The plaintiff also produced evidence that áfter the composition both defendants promised to pay this note, though one of them, as a witness in the case, denied making the promise.</p>

<p>Certiorari, from Chatham superior court — Judge Charlton. August 4, 1908.</p>

<p>Certiorari, from Fulton, superior court — Judge Pendleton. July' 7, 1908.</p>

<p>Certiorari, from Fulton superior court — Judge Pendleton. December 16, 1907.</p>

<p>1. The question as to whether a statute is, for any reason, unconstitutional will not be certified to the Supreme Court when a determination of the issues involved can be reached without a decision involving the constitutionality of the law in question.</p> <p>2. (a) While any person who offers to buy from any railroad company a ticket to a station on the line of a connecting railroad company, and who is refused such ticket after tender of the purchase-price thereof, may, if such refusal is not authorized, maintain an action for the penalty provided by law, still the sole purpose of the act approved October 15, 1891 (Acts of 1891, p. 155), was to prevent discrimination on the part of one railroad against another railroad connecting therewith.</p> <p>(6) Reference may be had to the language employed in the caption of an act, in ascertaining the intent of the General Assembly and the scope and purpose of the enactment, as well as to the language employed in the body of the act itself.</p> <p>3. The purpose of the above-mentioned act (now codified as §§2299, 2300,. 2301 of the Civil Code) being solely the protection of railroad companies against unlawful discriminations arising from the refusal of ai railroad company to sell tickets good for passage over a connecting line, to recover the penalty provided in §2301 of the Civil Code it must be alleged and proved, not only that the defendant railroad company refused to sell tickets to a station or stations on a connecting line, but also that tickets to such stations had^ been tendered it by such connecting line to be sold for it, and that the defendant, refused to place such tickets of its connecting line on sale.</p> <p>-f. No liability for the penalty provided by §2301 of the Civil Code attaches to a refusal to sell the tickets of a connecting railroad company where, for any reason, it does not desire its tickets' sold by other than its own agents, 'Or where it has not expressed a desire that tickets to stations on its line shall be sold by another connecting therewith. *’</p>

<p>!1. A petition alleging negligence on the part of an employee, in driving a dray at a dangerous and reckless rate of speed, in driving on the left-hand side of the roadway, in not seeing the petitioner and avoiding a collision, in not stopping the dray and pulling around the petitioner’s horse and huggy, and in recklessly running the dray into the petitioner’s horse and buggy while the employee was “driving a dray of the defendant company, for which he was employed by the said company,” and which alleged consequent injury, set' forth a cause of action against such employee’s master, and a general demurrer to the petition was properly overruled.</p> <p>'2. The evidence fully authorized the verdict rendered in favor of the plaintiff; and the error of the court, in admitting evidence as to an element of damage not set forth in the petition, was rendered harmless by a correct and explicit instruction of the court as to the. measure of damages, whereby the testimony objected to was ’practically excluded from the consideration of the jury.</p>

<p>Certiorari, from Chatham superior court — Judge Cann. January 10, 1908.</p>

Action on guaranty, from city court of Miller county — Judge Calhoun presiding. February 27, 1908. The D. E. Luther Publishing Company appointed Musgrove its-agent, and entered into a contract agreeing to furnish him “all books and bibles necessary for conducting the book business on what is known as the note plan, at fifty per cent, discount from schedule note prices;” the agent agreeing to pay for the books- and to devote his time exclusively.to selling them.

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

<p>Action for damages, from city court of Elbertón — 'Judge Proffitt. August 11, 1908.</p> <p>W. C. Smith sued the Gityr of Elberton for damages; a general demurrer to the petition as amended was sustained, and the plaintiff excepted. The petition alleges, in substance, that the plaintiff is, and at the times herein mentioned was, the owner of a lot of land on the west side of McIntosh street in the city of Elberton, on which is a frame dwelling-house occupied by his tenants; that during July, August, and September of the year 1907, the defendant, through its officers, agents, servants, and employees, graded said street for some distance on either side of said house, and, in the grading of the street as aforesaid, the said servants and employees dug down, cut away, and excavated an incline in said street to the north of said dwelling, and, with the earth so excavated, raised said street immediately in front of said residence, whereby it became necessary likewise to fill in and raise* said lot; that the defendant’s acts herein complained of were a direct invasion of the plaintiff’s property rights, and a damaging of his said property within the meaning of the constitution of the State; that by reason of said conduct his private property was in.jured as before set out; and that more than thirty days prior to the filing of this suit, he presented, for adjustment, his claim, for damages growing out of the acts herein complained of, to the .governing authority of said city, in conformity with an act of the ■General Assembly of the State, approved December 20, 1899, which •claim the said city refused to pay. Damages are laid in the sum •of $276.92. Attached to the petition is an exhibit as follows:</p> <p>“State of Georgia, County of Elbert. To the City Council of ‘The City of Elberton, Georgia: W. C. Smith, through his attorney at law, files this his claim for damages against The City 'of Elberton, Georgia, for injury and damage done by said city, its .agents, servants, and employees, during the months of July, Au.gust, and September of the year 1907, to a certain house and lot ■of the said W. C. Smith, situate on the west side of McIntosh .•street in said city of Elberton, by reason of the grading of said street- Claimant shows that in consequence of the raising of "his yard and lot it became and was necessary to raise the house located on the aforesaid lot, replaster the same, build, lengthen, and extend the pillars and chimneys thereof, and do other necessary work to the amount of $276.92, as is made more fully to appear from the itemized bill of particulars hereunto annexed. "Wherefore, pursuant to an act of the General Assembly of Georgia, approved December 20, 1899, claimant presents this his claim to the governing authority of said city for adjustment. W. D. Tutt, .attorney at law for W. C. Smith.” The annexed bill of partic■ulars contains various items, specifying amounts of money for “‘raising house,” “brick work,” “plastering,” etc., the whole amounting to $276.92.</p> <p>By amendment, allowed without objection, the following paragraphs were added to the petition: “Petitioner would show that by reason of the acts hereinbefore complained of, his property has been injured and damaged; that ingress to and egress from the rear of his said lot has been rendered more difficult; that the front of petitioner’s said lot is three feet higher than the rear; that petitioner will be forced at great expense to build a wall across "his said lot three feet high, in order to keep the higher elevation •of said lot from caving and washing away.” “That just before the changing of the grade of said street in the manner herein -complained of, petitioner’s said house and lot was worth on the market the sum of $2,000, but that, by reason of such change in. the grade of said street, petitioner’s said property decreased in market value in the full sum of $276.92, for which said sum petitioner asks judgment.”</p>

<p>Certiorari, from Muscogee superior court — Judge Martin. August 4, 1908.</p>

<p>Motion for new trial, from city court of Sylvania — Judge Boy-kin. August 14, 1908.</p>

<p>In an action of bail-trover, if tlie defendant does not replevy and the plaintiff executes the bond prescribed by section 4606 of the Civil Code and takes possession of the property, and thereafter fails to establish his right to recover, the defendant is entitled to take, as against him, his choice of the three forms of verdicts and judgments prescribed by sections 5334, 5335, and 5338 of the Civil Code. If he chooses a money verdict, he has an election of taking either the highest proved value of the property between the date the plaintiff received it and the time of the trial, without the addition of hire or interest, or of taking the market value of the property at the date the plaintiff received it, together with interest or hire accordingly as he may prove.</p>

<p>1. The verdict in favor of the plaintiff was as large as the evidence in his favor justified, and he, therefore can not he heard to complain of the finding.</p> <p>'2. A motion to reopen a case for the introduction of further testimony, after the evidence is closed, is addressed' to the sound discretion of the court; and the exercise of the court’s discretion as to reopening a case should not be hampered by unreasonable conditions. A party, however, who has made a meritorious motion should' stand upon the propriety of that motion and invoke an unconditional ruling thereon. Assent to an error waives the right to complain of that error.</p> <p>•3. While secondary evidence of the' contents of a writing is admissible when the writing is beyond the jurisdiction of the court, yet a writing which is or should be in the possession of one of the parties to the cause can not be said to be beyond the jurisdiction, until it has been determined, upon notice to produce, that the writing is not in the power, custody, or control of such party.</p> <p>4. A contract for the rent of a machine, which provides that the rental shall not terminate until the return of the machine, and yet also stipulates that the machine shall not be removed from the place of residence of the bailee without the written permission of the bailor (who proposed' and prepared the contract), may be construed as an agreement requiring the bailee, after notifying the bailor of his desire • for a termination of the contract of rental, to await direction from the bailor as to the disposition of the personalty rented.</p>

Certiorari, from Morgan superior court — Judge Lewis. September 12, 1908. On March 14 Cox sued out a laborer’s lien against Adams & Company, for the labor of himself and two minor sons; and the suit was made returnable to the April term of a certain justice’s court in Morgan county. It was levied on April 1. The defendants then filed a: counter-affidavit denying indebtedness, also demurrers, general and special.

<p>Certiorari, from Lee superior court — Judge Littlejohn. August 11, 1908.</p>

Certiorari, from Morgan, superior, court — Judge Lewis. September 12, 1908.

<p>1. In this State there are three general systems of working public roads' in the various counties. • No two of the systems can be in effect in the pame county at the same time.</p> <p>2. In those counties in which the alternative road law (Political Code, §573 et seq.) is in force, all male inhabitants between the ages of sixteen and fifty, and not within one of the regular exemptions recognized by law, are subject to road duty.</p>

<p>Accusation of larceny, from Chattooga superior court — Judge Wright. October 17, 1908.</p>

<p>A verdict of voluntary manslaughter is authoi-ized if the evidence shows that the slayer acted under an unabated heat of passion aroused by an assault made by the deceased upon the slayer’s wife; or that, from a sudden quarrel, tlnis initiated, the parties made mutual threats to kill at sight, and, having presently furnished themselves with deadly weapons, did soon thereafter meet in deadly rencounter, in which the defendant killed his adversary; or that the deceased, meeting the defendant, attempted to shoot him with a gun, but, seeing that the defendant was armed, retreated without any apparent or actual purpose of renewing the attack, and the defendant, while the deceased was thus retreating, in a sudden heat of passion aroused by the assault made upon him by the deceased, shot him in the back and killed him.</p>

<p>Certiorari, from Putnam superior court — Judge Lewis.- September 33, 1908.</p> <p>W. Denham, the prosecutor, testified: On March 13, 1907, Gen•eral Denham (the defendant) came to me to get some money. I told him I needed a dairy-hand, and- if he would contract to work with me I would advance him some on this contract. He then made this contract with me; that is, this contract was made, the money advanced, and the work to be done was in Putnam county, Georgia: he agreed to work with me from March 17, 1907, to December 31, 1907, at $13 per month and feed, as wages, the •said service to be as a dairy-hand. Upon the faith of this contract I advanced him $6. He worked for me two days and a half, or At most three days, and left, and has failed to work any more or to ■pay me my money back. He left my service without any reason whatever. I was kind to him' and gave him no cause whatever to leave me. During the short time he worked for me he tried to .get some money from me. Soon after leaving me I saw him and told him he must either come back and work out the money I had advanced him or he must pay the money back, or I should have a warrant issued against him. He said he would come back and work it out. He never claimed to me that he was sick. He was not sick, and I never heard anything about sickness as a reason .for his not coming back. Mr. Manley never offered to pay me any money for the defendant until long after the warrant issued, not in fact until the grand jury met and had this warrant before-them. I would not accept it then, because I thought the matter-had passed beyond my control and that I could not do so. During-the time the defendant worked for me Mr. Chandler came to my place and complained to defendant in my presence about gettingnuoney from him under contract for service, and asked him why he had not paid him the money I had let him have. Defendant, admitted to him that he failed to pay him, and also admitted, that he had obtained from the railroad authorities, a short time-before, $14, under a contract for service, and had not paid it back. At the time I had the defendant arrested, Mr. Chandler also-had a warrant issued for him for cheating and swindling. To> the foregoing testimony as to the defendant’s transaction with Chandler, the defendant objected, on the ground that it was irrelevant; and the overruling of this objection is assigned as error.</p> <p>J. W. Manley testified, that he hired the defendant after the-defendant left the prosecutor; that when he did so the defendant told him that he owed both Denham and Chandler, and asked him to pay them, and he (the witness) promised that he would do so; that he paid Chandler and called up some of Denham’s family over the telephone, but did not say what he wanted; he also tried to find him; and afterwards he saw Denham and offered to pay him the money the defendant owed him, but Denham refused to receive it; that the defendant would not go to work for the witness until the witness promised to pay Denham whatever he claimed was due him by the defendant, and also promised to pay Chandler; and that until the defendant was arrested, he (the defendant) thought that the witness had paid Denham. The defendant made the following statement to the jury: The reason I did not go back to Mr. Denham’s to work on Monday morning after I left on Saturday was I was sick, and when I got well, about Tuesday or Wednesday, I started back, and while I was going through town I saw Mr. Denham, and he told me he did not need me then, and to go and get the money and pay him back, and I told him I would do so. I went to Mr. Manley’s and told him if he would pay Mr. Denham and Mr. Chandler I would work it out, and Mr. Manley told me he would pay Mr. Denham what I owed him, for me, and he would also pay Mr. Chandler what I owed him; and I thought he had done it.</p>

<p>1. In a homicide ease the proof of the corpus delicti must not only show that a person has been killed, but must also identify the person shown to have been killed as the one whose death is the subject of inquiry. These elements of the corpus delicti must appear from some form of proof other than extrajudicial confessions or admissions alone; but if the defendant in his statement made on the trial of the case admit» them, the State is not required to make further proof of them.</p> <p>2. A charge in substance that when a killing is shown, the law presumes malice and the burden is on the prisoner to justify or mitigate the homicide, is .erroneous in a case where the proof of the homicide is derived through an admission of the defendant, which itself presents matters of exculpation.</p> <p>3. Lack of proof of the venue is fatal to a conviction of any offense.</p> <p>4. The verdict is without evidence to support it.</p>

<p>1. All necessary jurisdictional facts must appear from the plaintiff’s petition, and their absence may be taken advantage of by demurrer.</p> <p>2. The courts take judicial notice of the principal office or legal residence of railroad companies incorporated under the laws of this State.</p> <p>3. Except where otherwise provided by law, a suit against a railroad company chartered under the laws of this State must be brought in the county in which is located its principal office.</p> <p>4. A suit brought against a railroad company having its principal office in this State, to recover upon the liability attaching to it as the pur- ■ chaser or successor in title of another corporation or. an individual, to whom the injuries alleged were primarily chargeable, must be brought in the county of the defendant company’s principal office or place of business.</p> <p>5. To impose liability upon a railroad corporation for either the torts or the contracts of another railroad company, it must appear that such liability attaches either by operation of law or by contract. A petition in which it is sought to charge one railroad company with liability for the tort of another, and which fails to sufficiently set forth in what manner or for what reason such liability attaches, may properly be dismissed- upon demurrer.</p> <p>6. It is contrary to public policy for a railroad company to avoid any - such liability by mere reorganization and change of its corporate name. And where this or similar device is resorted to, one railroad company might be held liable even for the torts of the corporation previously in possession of its property and franchise; but where there has been a lawful sale of a railroad, the grantee is not responsible for the preexisting debts of the grantor, nor liable for its torts.</p> <p>(a) The allegations of the petition in the present instance did not show that there had been a merger of the Atlantic & Birmingham Railway Company with the defendant, or negative the inference that the depot and property of that company had' become the property of the defendant by virtue of a proper judicial sale.</p> <p>7. Advantage may be taken of the failure to set forth in the petition the jurisdiction of the court, both by demurrer and by a motion to dismiss; and the fact that both remedies were allowed is not error of which a plaintiff can complain.</p>

<p>1. The doctrine expressed in the maxim res ipsa loquitur is simply a rule of circumstantial evidence. In this State the philosophy of the doctrine is embraced in, and its practical application authorized by, section 5157 of the Civil Code: “In arriving at a verdict the jury, from facts proven, and sometimes from the absence of counter-evidence, may infer the existence of other facts reasonably and logically consequent .on those proved.”</p> <p>(a) Under the facts proved in this ease, the jury would have been authorized to infer the existence of some one or more of the specific acts of negligence alleged in the petition; consequently the nonsuit was improperly awarded.</p> <p>2. Whether an employee has knowledge of defects in the machinery with which he is required to work, and which caused his injury, and whether such knowledge amounts to contributory negligence, are generally questions to be determined by the jury. In this case the evidence of contributory negligence is not conclusive.</p> <p>3. A servant is under no duty to observe changes resulting from the gradual wear and tear of machinery, until they become obvious to any careful man. A master’s duty is to find out such changes by constant inspection, and to repair them, and to warn the servant of their existence.</p> <p>4. Where one of the questions to be determined was the cause of the sudden, automatic starting of machinery of a certain kind, the opinion of a witness familiar with the construction and' operation of similar machinery, describing a condition of the machinery which would be likely to cause such sudden movement, would be admissible testimony.</p>

Complaint, from city court of Macon — Judge Hodges. March 21, 1908.

Trover, from city court of Baxley — Judge Thomas. April 8, 1908. C. M. Murphy, as guardian of Jeff Murphy, a minor, brought suit against D. A. Hughes, to recover .certain cattle, the property of the ward. The defendant, in his answer, admitted possession of the cattle, and averred that he had bought them from the ward, with the consent of the guardian, and had paid the ward for them.

<p>1. An imprisonment resulting from an arrest under a valid warrant, one neither void nor voidable, — can not be in' any case or under any circumstances false imprisonment, and can not give a right of action for damages.</p> <p>2. A valid warrant can not be based upon allegations in the affidavit therefor which affirmatively show that no criminal offense has been committed. But in an affidavit charging one with the offense of criminal libel, where the language alleged to constitute the libel does not import a crime or misdemeanor, the libelous character of the language can not be determined as matter of law; whether it is a malicious defamation “tending to blacken the honesty, virtue, integrity, or reputation” of the one about whom it is written and published, and thereby “ expose him to public hatred, contempt, or ridicule,” must he referred to the jury as a question of fact, under all the circumstances of the particular case.</p>

Action for damages, from city court of Atlanta — Judge BeidMarch 20, 1908. The plaintiff, a minor female, by her next friend sued the defendant for injuries received through the discharge of what the petitioner alleges to be a pistol sold her by the defendant. She was trying to load it, when it was accidentally discharged into her hand, causing a wound from which tetanus ensued. At the time of the sale and injury she was eleven years old.

<p>Complaint, from city court of Atlanta — Judge Calhoun. July 18, 1908.</p>

<p>-Complaint, from city court of Cordele — Judge' Strozier. July 16, 1908.</p>

Action for damages, from city court of Nashville — Judge Peeples. August 17, 1908.

<p>1. The decision in this ease is controlled by that in Starling v. State, ante, 171 (62 S. E. 993). The demurrer to the indictment, which failed to allege a definite contract, in that no time'was specified when the term of service was to begin or end, should have been sustained. The allegation that the defendant contracted to work as a farm laborer for ten days, at 50 cents per day wages and his food, is (as expressed in Starling v. State, supra) too vague and indefinite to set forth a definite and unambiguous contract within the terms of the act of 1903 (Acts 1903, p. 90).</p>

Accusation of carrying concealed weapon, from city court of Swainsboro — Judge Mitchell. October 1, 1908. Bill Governor was convicted of the offense of carrying concealed weapons. Upon arraignment and before plea, the defendant filed a challenge to the array of jurors, on the following grounds: (1) Because the jury drawn and put upon the defendant was not properly drawn and is not a legally impaneled jury.

<p>Complaint from cityr court of.Amerieus — Judge Crisp. October 17, 1908.</p>

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

<p>Hill, C. J. 1. Where, on the call of a ease in this court, it appears that the plaintiff in error has fully complied with the judgment of the trial court, and has paid to the sheriff the full amount of the fine and cost required of him as the alternative sentence imposed against him in the case, and has thereripon been discharged from custody, Ms writ of error will be dismissed.</p> <p>2. Where a motion to dismiss the writ of error is made by the solicitor-general; on the ground stated in the foregoing headnote, and is granted, the State will thereafter be estopped from in any manner contesting the truth of the ground stated in the motion, or from enforcing any part of the sentence of the lower court.</p>

<p>Accusation of wife-beating, from city court of Swainsboro— Judge Mitchell. October 1, 1908. '</p>

<p>Accusation, of unlawful sale of liquor, from cityr court of Swainsboro — Judge Mitchell. October 1, 1908.'</p>

<p>.Attorneys should he allowed all reasonable latitude in the argument of eases to the jury, provided they do not go outside the facts legitimately . appearing from the trial, and lug in extraneous matters as if they were a part of the case.</p>

Indictment for larceny after trust, from Laurens superior court —Judge Martin. October 17, 1908. The defendant was indicted for the offense of larceny after trust, the material part of the indictment being as follows: “On the loth day of February, 1903, having been previously entrusted by H. E. Ivreutz with 5,000 feet of sawed pine lumber, of the value ■of $50, for the purpose of applying the same for the use and benefit of said II.

<p>Accusation of carrying concealed weapon, from city court of! Swainsboro — Judge Mitchell. October 1, 1908.</p>

<p>Indictment for larceny, from Pulaski superior court — Judge? Martin. October 6, 1908.</p>

Complaint, from city court of Bainbridge — Judge HarrelL October 29, 1908. Barco sued White as principal and Taylor as surety, upon a promissory note for $450. The note was signed by J. W. White, and underneath his name was that of the defendant Taylor. No service was had as to White, but service was perfected on Taylor..

Complaint, from city court of Newnari — Judge Freeman. January 30, 1908. D. H. Kiddle sued W. A. Potts on a written contract, and there was a verdict for the plaintiff. The contract attached to the petition was as follows: “Georgia, Coweta county.

Complaint, from city court of Americus — Judge Crisp. April 27, 1908. Council brought suit against Simmons on eight promissory notes, •signed by tbe defendant, payable to the order of T. E. Cohn, and .indorsed by Cohn, each for $20 and due thirty days after date. The following is a copy of one of the notes: “$20.00.

<p>Action for damages, from city court of Hartwell — Judge Hodges.. August 3, 1908.</p> <p>. Mrs. Ellenberg sued the railway company for running over and. killing her husband with its,locomotive engine and passenger-train. Her petition, after being amended by striking certain allegations' and substituting others, charged, in substance, that while the deceased was walking upon the track of the defendant, between two-public crossings, and along a pathway much used by the public-for a long number of years, on a dark, rainy night, a train approached him without giving the usual signals, and ran over and killed him. The allegations of negligence were, that the company did not signal the approach of the train to the crossings, but rushed the train on at a rapid rate of speed; that the train was running-behind time and was running at an unusually high rate of speedy that the headlight was defective; that the track was perfectly straight and a person could have been seen thereon for several hundred yards, and, even with a defective headlight, the engineer should have seen the deceased in time to stop the train, but did not-do so, and, on the contrary, recklessly and wantonly ran over him.The plaintiff proved the homicide, by showing that the dead body of her husband was found on the track of the company, mutilated and scattered along for a considerable distance between the two-crossings. Some of the plaintiff’s witnesses gave testimony indicating that the engineer did signal the crossing with the usual blowing of the whistle. There was evidence that the people of thei community had been accustomed to pass along the track between the two crossings with frequency, for at least eight years prior to-the time the deceased was run over. At the conclusion of the plaintiff’s evidence the judge intimated that, among other deficiencies in the proof, he thought that there was no evidence that the .defendant company -knew that persons were accustomed to use it,s track as a: footpath, that there was no evidence that there was a footpath between the tracks. Counsel stated to the court that witnesses were in court by whom he could supply the proof as to this,, • and requested the court to allow him to reopen the case and introduce this evidence. The court refused this request and granted nonsuit. , ■ ■ , >]•</p>

<p>Affidavit of illegality, from city court of Sylvester — Judge Park. September 30, 1908.</p>

<p>Levy and claim, from city court of .Carrollton — Judge Hodnett-Oetober 16, 1908. .</p>

<p>Complaint, from city court of Douglas — Judge Koan. September 22, 1908.</p>

<p>1. The consignee of goods transported by a railway company can not,, ordinarily, recover them in an action of bail-trover against the carrier, ' unless he has first paid or tendered the freight and storage charges, which have accrued, according to the rates and rules of the railroad commission.</p> <p>2. The railway company, after its liability as carrier has ceased' and its. liability as warehouseman has attached and the free time allowed by the commission rules has expired, is entitled to storage charges, although the property was not actually placed inside a depot or freight, warehouse.</p>

<p>1. Section 214 of the Renal Code, which provides that “Any officer, agent, or director of a bank or banking association of this State, who shall violate the provisions of sections 1934, 1948, 1949 of the Civil Code, or either of them, shall be punished by imprisonment in the penitentiary for not less than one year nor more than twenty years,” is applicable only to officers, agents, and directors of banks of issue, provision for such banks being made by sections 1929 to 1952, inclusive, of the Civil Code.</p> <p>2. A special presentment charging named officers of a State bank with the violation of section 1948 of the Civil Code of 1895, but which fails to allege such bank to be a bank of issue, is defective, and a demurrer pointing out this defect should be sustained.</p> <p>3. “Where the later of two acts covers the whole subject-matter of the earlier one, not purporting to amend it, and plainly shows that it was intended to be a substitute for the earlier act, such later act will operate as a repeal of the earlier one, though the two are not repugnant.” 26 Am. & Eng. Enc. Law (2d ed.), 731 (c) ; Johnson v. Southern Mutual B. & L. Asso., 97 Ga. 623 (25 S. E. 358) ; Western é Atlantic R. Oo. v. Atlanta, 113 Ga. 554 (38 S. E. 996, 54 L. R. A. 294), and authorities there cited. Applying this principle to the act of 1898 (Acts 1898, p. 73), it would seem that the act of 1893 (Acts 1893, p. 66), codified as sections 1929 to 1952, inclusive, of the Civil Code, would be repealed by implication.</p>

<p>Action for damages, from city court of Atlanta — Judge Reid. May 13, 1908.</p>

Action on bond, from city court of Blakely — Judge Jordan. April 20, 1908.

Action on contract, from city court of Nashville — Judge Roan presiding. April 23, 1908. Tygart sued Albritton to recover damages for breach of contract. The contract may be substantially stated as follows: On January 12, 1906, Tygart, Day, and Albritton entered into an agreement to carry on a general sawmill business in Berrien county. The contract specifies the work of each in the conduct of the business, and the share of each in the profits.

<p>1. Where a judgment overruling a motion for a new trial is brought to this court, and the judgment is reversed and a new trial ordered, the judgment of this court is final only as to the questions decided. On the second trial all questions made by the original pleadings and' by appropriate amendment thereto, not decided by this court on review, or not inconsistent with the opinion rendered by this court in the ease, are still open for adjudication.</p> <p>2. This court will not disturb the finding of the trial court, acting without the intervention of a jury, on a question of fact, where there is-some evidence to support the finding.</p>

<p>The evidence demanded the verdict for the plaintiff, and' there was no error in so directing.</p>

<p>A contract between employer and employee that the latter will not quit: without giving a week’s notice, and that if he does quit without giving; a week’s notice the employer shall retain a week’s wages as liquidated, damages, is reasonable and enforceable.</p>

<p>1. An exception in the following language: “After hearing the certiorari the court overruled the same and refused to grant a new trial, to which ruling plaintiff in certiorari excepts and assigns the same as error,” is sufficient in form, and presents for review the questions of law made in the lower court by the petition for certiorari and the answer.</p> <p>2. A constable may in his official capacity receive notes and other liquidated demands for collection, and is subject to rule if he fails to pay over the proceeds of the collection to the person entitled thereto. Civil Code, §§4099, par. 3; 4162.</p> <p>3. In reviewing the action of the superior court upon certiorari cases presenting errors alleged to have been committed in magistrates’ courts in cases involving only small amounts, this court will not interfere for slight errors, where a close approximation to the substantial justice of the ease has been attained.</p>

<p>Action for damages, from city court of Amerieus — Judge Crisp.. April 29, 1908.</p>

<p>Complaint, from city court of Washington — Judge Hardeman. September 21, 1908.</p> <p>Creety desired to ship oranges from Minorville, Florida, to Washington, Georgia, and asked Chapman, the railroad agent at the latter point, to name the rate. Chapman stated that he did not know the rates between these points, but he would find out what the rate was, and telegraphed the general freight agent to quote him the rate. The general freight agent telegraphed him that the rate was sixty-eight and four-tenths cents per 100 pounds, and Chapman quoted this rate to Creety. Acting on this information, Creety ordered a car-load of oranges, consisting of 345 boxes or. crates. When the oranges arrived the way-bill had not been received, and the exact amount of freight due did not appear. Acting on the telegram received from the general freight agent, Chapman delivered the car-load of oranges to Creety, on his making a deposit of $190 to cover the freight; which amount was slightly in ■excess of the freight due at the rate of sixty-eight and four-tenths cents per 100 pounds. When the way-bill covering the shipment was received by Chapman, about two months after the freight had been delivered and the oranges had been sold on the basis of the freight rate quoted, it appeared that the rate of freight due was sixty-eight and four-tenths cents per standard crate of 80 pounds, instead of that rate per 100 pounds; and Chapman then first discovered that a mistake had been made in transmitting the telegram of the general freight agent to him. Chapman, acting for the railroad companjq demanded the additional freight above the sum deposited, amounting to $45.98, and payment was refused. The schedules containing the rates were on file and properly posted in the depot at Washington, Georgia, as required by the interstate-commerce act, and consisted of about fifteen hundred pages of printed matter.</p> <p>The company sued Creety to recover the difference between the sum paid by him under the rate quoted and the sum which should have been paid according to the posted tariff. Upon the facts stated above appearing, the judge directed a verdict in Creety’s favor.</p>

<p>Motion to set aside judgment, from.city court of Floyd county — . Judge Hamilton. June 8, 1908.</p>

<p>The right to interest is not inherent to a claim for unliquidated damages. In certain eases it may be allowed as a corollary, so to speak, to the principal damages. Where the principal of the damages Is accepted as such by the creditor from the debtor, all claim for interest is extinguished.</p>

<p>Bail-trover, from city court of Camilla — Judge Scaife. September 1, 1908.</p>

<p>1. The evidence authorized the verdict of guilty.</p> <p>2. In a prosecution for burglary, the loss of articles of personal property other than those described in the indictment, if such articles be found in the recent possession of the defendant, may be proved, as a circumstance tending to disclose the identity of the- burglar. It is not essential in any indictment for burglary that a larceny be charged. If in the indictment a larceny be alleged, it must be proved as laid; but whether a larceny be charged or not, and even if the purpose of the breaking be alleged to be a felony, and not a larceny, the recent possession of an article known to have been contained in the house in question at the time of the burglary, unexplained, might lead to the inference of the defendant’s guilty presence and participation in the offense.</p>

<p>Where proof of a defendant’s guilt is dependent wholly upon circumstantial evidence, it is error not to instruct the jury that they must be satisfied, by the evidence, of the guilt of the defendant, to the exclusion of every other reasonable supposition. Riley v. State, 1 Ga. App. 651 (57 S. E. 1031); Glaze v. State, 2 Ga. App. 704 (58 S. E. 1126). However, where, in a prosecution for carrying a pistol concealed, all the testimony adduced is direct and positive, any instruction upon the subject of circumstantial evidence would be error.</p>

Complaint, from city court of Atlanta — Judge Calhoun. September 29, 1908. The brick company sued the ice company on an account, for the purchase-price of about 38,000 bricks at $6 per thousand.

<p>Accusation of larceny, from city court of Fitzgerald — Judge' Jay. October 26, 1908.</p>

<p>Motion to open default, from city court of Statesboro — Judge Brannen. October 14, 1908.</p>

<p>Indictment fox seduction, from Laurens superior court — Judge 'Martin. October 17, 1908.</p>

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

<p>Action for damages, from city court of Atlanta- — -Judge Beid. October 17, 1908.</p> <p>The court sustained a general demurrer to the plaintiff’s petition, which, as amended, made substantially the following allegations : Petitioner was at work for the defendant companies in the yard of the Georgia Bailroad in said county, engaged in stopping ears. Petitioner was placed by the conductor who had charge-of the crew (said crew being short one man) on what was known as the depot lead, for the purpose of making up trains, to go out of the yards-that night. It was the duty of the defendants to-have cars properly inspected before they were placed in the train. It was night, and the petitioner could not see and had no way of' discovering the defects in the brake of the cars. The brake was-out of order, and, by reasonable inspection of the same, the inspector of the defendants, whose duty it was to make inspection, would have discovered the defect. It was no part of petitioner’s duty to make the inspection of the defendants’ cars. He did not know and had no way of knowing of the defect in the brake, until the same was suddenly thrown upon him. The defendant ought to have known that the brake of the car was out of order and would not work, and the failure to properly inspect the car contributed to and caused the injury complained of. When a car would be started at a very rapid rate of speed the engine would be suddenly stopped, leaving the car to go by its own momentum to-the track that it was intended to go upon, and when it reached that place it was petitioner’s duty to scotch it and hold it in position, so that it would not run upon the crew. And while thus: engaged in the discharge of his duties, and without fault on his part, a ear which was out of order, in that the brake was out of order and would not- hold, petitioner was compelled to scotch with a piece of iron, which he picked up and put under the wheel. The iron, upon being hit by the wheel, suddenly jerked petitioner’s hand across the rail and held it, and the car wheels ran across his hand, cutting off his thumb, first, second, and third fingers of his right hand, destroying his right hand. “Petitioner shows that it was customary for cars to be stopped in the way petitioner was ^stopping them at the time he was injured; that the defendant company, through its officers and agents in charge of the work, to wit, his superior officers, directed him to scotch the cars at the time he was injured.” The specifications of negligence are as follows: “The defendants were negligent, first in kicking the car; second, in not notifying him that the car was defective when it was kicked to him; third, in not furnishing him with proper appliances for stopping the car; fourth, in not having a full crew to handle the train; .all of which contributed to and caused the injuries complained of.”</p>

<p>Accusation of assault and battery, from city court of Oglethorpe- ■ — Judge Greer. October 14, 1908.</p>

Complaint, from city court of Bainbridge — Judge Harrell. October 12, 1908. The-suit was brought to the June term, 1908, of the city court- of Bainbridge. This term, by statute, convened on the first Monday. On that day no business was transacted except an order adjourning the court to the- following Monday and setting the criminal calendar for the second week and the-civil calendar for the-third week.

<p>Conviction of manslaughter, from Washington superior court— Judge Bawlings. October 17, 1908.</p>

<p>The verdict was demanded by the evidence, and it would have been error to have granted a new trial.</p>

<p>!1. A dog which makes a practice of killing or injuring sheep is a nuisance. The owner of sheep which from time to time have been attacked by such a dog may, without liability to prosecution under the statute against cruelty to animals, cause it to be killed, even after it has escaped from the place where it attacked the sheep.</p> <p>2. While a person may violate the statute by cruelty to his own dog, yet the owner may kill his dog by some swift and' comparatively painless method, without liability to prosecution. One who has the owner’s consent to kill the dog stands upon a similar footing.</p>

<p>Accusation of larceny from house, from city court of Newton — ■ Judge Johnson. November 3, 1908.</p>

<p>Accusation of larceny from bouse, from city court of Newton— Judge Johnson. November 3, 1908.</p>

<p>Accusation of larceny from house, from city court of Springfield — Judge Smith. October 20, 1908.</p>

<p>Accusation of stabbing, from city court of Statesboro — -Judge Brannen. November 19, 1908.</p>

<p>Indictment for assault and battery, from Effingham superior court — Judge Seabrook. November 14, 1908.</p>

<p>Accusation of cruelty to animals, from city court of Americus— Judge,Crisp. November 7, 1908.</p>

<p>Certiorari, from Ben Hill superior court — -Judge 'Whipple. October 20, 1908.</p> <p>The plaintiff in error was convicted of an assault. He excepts to the overruling of his petition for certiorari, which' was based on the ground that there was no evidence to support the -verdict,! and upon an additional ground not verified. The evidence for the prosecution, briefly stated, is as follows: The prosecutor testified: “I met the defendant on Pine street in Fitzgerald. When I met him he had a brick in his hand and immediately began cursing me.. He said, ‘You God damn bastard, what, did you-beat and choke me for on the street a while ago, you and that crowd?’ I was, of course, surprised at that sort of- conduct, and-told biim-I did not do it. ■ No one was right there except the deféndáiit and myself, and there was no object between us that would have, prevented him from hitting me with the brick. We were within a iew feet of each other. As he cursed me he drew back the brick in his hand as if he intended to strike me'with it.. Just at that time I thrust my hand in my hip-pocket, and told him-,I would shoot. I did not have any pistol, but did that for the purpose -of making him believe I had one, and thus prevented him from •striking me with the brick. When I did this he let his hand down -and did not throw the brick. We talked for,a minute or two, and J kept telling him that I did not beat him and was not 'in the ■crowd that he claimed beat him, and he commenced cursing me again. I reckon by that time he concluded-1 did not have, any pistol, and he drew back his hand in which he held the brick, just as if he meant to strike' me. Just at that time some one across the street hollered at him, or I reckon they hollered at Him; they sounded like they did. He looked around, and I moved off and got out of the way.” ■ ■ ■■■</p>

<p>1. A trial judge may properly ask questions for the purpose of informing himself as to the truth of any matter material to a cause on trial, provided, in asking the questions, no intimation of his opinion upon the merits is conveyed to the jury, and especially if the complaining party ' .is not injured by the questions asked. "</p> <p>2. Assignments of error, contained in a petition for certiorari, will not be considered except in so far as they may be verified in the answer.</p> <p>3. A trial judge must necessarily he allowed great latitude in the exer- ■ eise of his discretion as to opening a ease at any stage, or as to' the introduction of additional .testimony, as well as in permitting leading questions to be asked; and this discretion will not be controlled, unless it clearly appears that the judge abused his discretion, to the prejudice of the complainant. ' '</p> <p>4. Mere hearsay, unless a witness is testifying as an expert, has no inoré probative value as a basis of- opinion than ordinarily attaches to, hearsay. .</p> <p>5. The judge of the superior court erred in overruling the certiorari; because the verdict was without evidence to support it, in that the owriership of the mule (with reference to which the false representations were-alleged to have made by the defendant) was not proved as alleged, though such ownership was made material by its averment; nor does the proof show- that the trade by which the prosecutors are alleged to have been defrauded was such a bargain as that described in the indictment. As to these points there is a fatal variance between the allegations and' the proof; and furthermore, there is no evidence whatever that the prosecutors in fact sustained-any loss. Allegations made material by their averment must be proved as alleged, in order that the defendant may be protected from again being placed in jeopardy for the same transaction.</p> <p>6. Upon the hearing of a certiorari the superior court can not consider any evidence other than that which was adduced upon the trial in the tribunal whose judgment is under review. Newly discovered evidence can not be considered upon the hearing of a certiorari. It is suggested that legislation be had which will permit the consideration of newly discovered evidence, upon the hearing of a certiorari from the judgment of a court which is by law inhibited from granting new trials.</p>

<p>Conviction of manslaughter, from Lincoln superior court— Judge Worley. November 14, 1908.</p>

<p>A bill of exceptions, in order to confer jurisdiction on this court, must, within fifteen days from the date of the certificate of the judge, be filed in the clerk’s office of the court below. This applies to criminal as well as to civil cases. In the present ease the certificate of the judge to the bill of exceptions is dated November 6, 1908, and was filed in the office of the clerk of the trial court on November 23, 1908. This court is, therefore, without jurisdiction; and the writ of error is dismissed.</p>

<p>The judge of the superior court did not err in remanding the case for further action in the mayor’s court.</p>

<p>Indictment for carrying concealed weapon, from Talbot superior court — Judge Gilbert. November 2,- 1908.</p>

<p>Accusation of misdemeanor, from city court of Elberton-r- Judge Proffitt. November 21, 1908.</p>

<p>Indictment for vagrancy, from Talbot superior court — Judge Gilbert. November 2, 1908.</p>

<p>Indictment for attempt to wreck train, from Floyd superior court —Judge Wright. October 14, 1908.</p>

<p>Certiorari, from Greene superior court — Judge Lewis. November 18, 1908.</p>

<p>Accusation of misdemeanor, from city court of Elberton — Judge Proffitt. November 11, 1908.</p>

<p>,1. Where goods are delivered to an initial carrier in good order, and thereafter delivered by it to a connecting carrier, the connecting carrier will be presumed to have received them in good order; and in a case where the goods are delivered to the consignee in bad order a prima facie case-of liability will be established against the delivering carrier. The presumption,. however, which may arise in support of a prima facie case,, and which must be overcome by the carrier to relieve itself from liability, must yield to the facts of the case, and is not only rebuttable, but. in fact does not arise where it appears, from the evidence introduced in behalf of the plaintiff, that the last connecting carrier in fact received the goods in bad order. Evidence that the goods were received in bad order is fatal to the existence of a presumption that they were-received in good order. A presumption that goods were received in good order can not arise where the proof shows that they were received, in bad order.</p> <p>2. The evidence showing, without contradiction, that the plaintiffs were, entitled to a judgment in their favor, but that the amount recovered was $6 more than they were entitled to recover, direction is given that this amount be written off from the judgment rendered in their behalf, and. that they be required to pay the costs of the certiorari and of this writ of error.</p>

<p>Actions for damages, from city court of Floyd county — Judge Hamilton. February 25, 1908.</p>

Action for damages, from city court of Athens — Judge Cobb. February 17, 1908. E. L. Moss & Company brought an action for damages against the Postal Telegraph-Cable Company for an alleged failure to transmit a cablegram. It appeared, from the evidence, that on November 28, 1904-, the plaintiffs delivered to the Postal Telegraph-Cable Company, at Athens, Georgia, the following message for delivery to Cunningham & Hinshaw, at Liverpool, England: “Athens, Georgia.

<p>Certiorari, from Bibb superior court — Judge Felton. March 3, 1908.</p>

<p>Appeal, from G-rady superior court — Judge Spence. March 3, 1908.</p>

<p>Where a landlord under duty to make repairs employs an independent, contractor to do specific work needed to be done, the independent contractor may be held liable by the tenant for injuries resulting, prior to the acceptance of the work by the landlord, from the negligent-manner in which the contractor has performed the work. However, if the contractor fulfils his particular contract with ordinary care and diligence, he is not liable for injuries resulting by reason of defects in the original plan of the work, or because the repairs 'as made prove inadequate to fulfil the landlord’s duty in the matter.</p>

Action for libel, from city court of Savannah — Judge Freeman. April 6, 1908.

<p>Action for penalty, from city court of Covington — -Judge "Whaley. May 9, 1908.</p>

<p>Action for damages, from city court of Atlanta — Judge Calhoun. April 2, 1908.</p>

<p>Foreclosure of lien, from city court of Atlanta — Judge Calhoun. April 22, 1908.</p>

<p>1. Where a claim bond has been given under §4720 of the Civil Code, for the purpose of dissolving a garnishment, and the issue between the plaintiff in garnishment and the claimant, as to the ownership of the fund garnished, has been adjudicated adversely to the claimant, and a judgment in favor of the plaintiff rendered against the claimant and his surety on the dissolution bond, the surety is bound by the judgment rendered against the claimant, and can not subsequently be heard to attack the right of the plaintiff to the fund garnished, on any ground put in issue or that, under the rules of law, could have been put in issue by the claimant, in the previous case in which the judgment was rendered.</p> <p>2. The direction of a verdict on the ground that all the questions in issue were res adjudieata was demanded by the evidence.</p>

<p>Appeal, from Marion superior court — Judge Martin. May 23, 1908.</p>

<p>Where a printed order for certain goods was signed and delivered by an agent of its makers to the agent of the seller of the goods, upon an express understanding and agreement that the order ’ was not to be binding unless approved by a named member of the makers', firm, and that the seller’s agent was not to deliver the order to his principal to be filled, until the order had been approved and confirmed by the named member of the makers’ firm, and where this member of the firm refused to approve the order, but the seller’s agent, in violation of the ■express understanding or agreement above mentioned, immediately upon its receipt sent the order to his principal (not a corporation), such delivery was not effective or binding upon the firm whose name had been signed to the order by their clerk, and they had the right to promptly countermand the order and to refuse to receive the goods from the carrier.</p>

Appeal, from Brooks superior court — Judge Mitchell. June 1, 1908.

<p>Complaint, from city court of Elberton — Judge Proffitt. June 13, 1908.</p>

<p>1. The error of the court in allowing a claim of set-off was rendered harmless by the act of the defendant in writing off from the judgment in his favor the amount of the set-off objected to.</p> <p>2. No other error appears; and the verdict, as modified by the judgment-on the motion for new trial, was demanded by the evidence.</p>

<p>Habeas corpus, from city court of Monticello — Judge Thurman. September 18, 1908.</p>

<p>1. The petition is construed as presenting an action based, nor on negligence, but on wilful and wanton acts of the defendant’s engineer. •</p> <p>2. Contributory negligence is not a defense to an action based solely on wilful and wanton acts of the defendant by which he has recklessly or intentionally injured the plaintiff.</p> <p>3. The fact that one suing for a diminution of his earning capacity through an injury occasioned by the defendant was, previously to the time, he was injured, a tramp is material not only on the question of his credibility as a witness, but also in measuring his damages.</p> <p>4. The case turns solely upon the question as to whether the plaintiff’s injuries were inflicted by the defendant’s agents wilfully and wantonly; and this issue should be presented to the jury uneonfused with other issues.</p>

<p>Indictment for larceny, from Appling superior court — Judge Thomas presiding. September 23, 1908.</p>

Action for damages, from city court of Savannali — Judge Freeman. October 9, 1908. The facts of the case are practically undisputed. The plaintiffs desired to ship certain goods from Savannah, Georgia, to Bryant’s White Bluff, Georgia, on the Ocmnlgee river,- above Abbeville. They made out duplicate shipping tickets for the goods and delivered them to the defendant, tbe carrier, as shipping directions.

Complaint, from city court of Cartersville — George H. Aubrey, judge pro hae vice. October 26, 1908. The Bank of Kingston, for the use of the Farmers’ Gin & Warehouse Company, sued Bing on three promissory notes, and obtained verdict and judgment. The recitation of the petition is that- the. notes were given for eight shares of the capital stock of the Farmers’ Gin & Warehouse Company.

<p>1. The grounds of a motion for a new trial are not the subject-matter of valid exception unless they are legally verified. The verification may appear from the bill of exceptions or from the record, or from the approval of the trial judge. To “allow” grounds of a motion is not, however, equivalent to approving them. Holmes V. Pope, 1 Ga. App. 340' (58 S. E. 281) ; Seaboard Air-Line Kailway v. Bostoeh, 1 Ga. App. 189 (58 S. E. 136) ; Wilson v. Gobb, 4 Ga. App. 272 (61 S. E. 133); Soell v. State, 4 Ga. App. 337 (61 S. E. 514).</p> <p>2. “Contracts creating the relation of landlord' and tenant for any time not exceeding one year may be.by parol, and if made for a greater time shall have the effect of a tenancy at -will.” Civil Code, §3117; Hayes v. Atlanta, 1 Ga. App. 25, 29 (57 8. E. 1087). If the relation of landlord and tenant is not to exist for longer than one year, a parol contract is valid, though made before the year begins. Steinvnger v. Willimis, 63 Ga. 475, distinguishing Atwood v. Horton, 31 Ga. 507.</p> <p>3. If, pending the duration of a tenancy, the tenant becomes dissatisfied and offers to surrender possession, and the landlord thereafter resumes possession or a control over the premises inconsistent with the tenant’s right of occupation, he thereby discharges the tenant from liability for future rent. ' If he seeks to hold the tenant for the rental value of the premises for the period prior to his resumption of possession, the burden is on him to show what that value is. Harris v. Dub, 57 Ga. 78(3) ; Ledsinger v. Burke, 113 Ga. 76 (38 S. E. 313).</p> <p>4. If the plaintiff fails to make a prima facie case by the testimony, the case should end by nonsuit, and not by the direction of a verdict in favor of the defendant. The judgment is affirmed, with direction that it shall operate only as a nonsuit, and not as a final judgment concluding the case on the merits. Proctor £ Gamble Company v. Blakely Oil Go., 128 Ga. 606, 614 (57 S. E. 879); Caudell v. So. By. Co., 2 Ga. App. 479 (58 S. E. 689) ; Murphy v. Ga. By. £ Elec. Co., 4 Ga. App. 523 (61 S. E. 1133).</p>

<p>Action on insurance policy, from city court of Waycross — Judge Myers. September 15, 1908.</p>

<p>Action for money bad and received, from city court of Dublin— Judge Burch. October 12, 1908.</p>

<p>1. Where two or more persons join in executing the same false affidavit, they may be jointly indicted for the statutory offense of false swearing.</p> <p>2. There are eases in which the crime of false swearing may be predicated . of a promissory oath.</p> <p>{a) Where the managers of an election, at the beginning of the day, take the usual oath binding them to conduct the election honestly and in accordance with law, and thereupon, having held the election, knowingly and wilfully certify false returns, the official oath and the election papers-being transmitted together to the designated officials as required by law» the election managers so falsifying the returns are subject to indictment, for false swearing.</p> <p>3. The words “primary election” have a definite legal meaning. The-' words themselves denote an election hy ballot, held hy some party, organization, or association, for the nomination of candidates for public offices.</p> <p>4. A militia district or an election precinct may be described in an indictment by its colloquial name; and it is unnecessary to allege the number-, by which it is also designated.</p> <p>5. The court properly overruled the demurrers to the indictment.</p>

<p>Accusation of misdemeanor, from DeKalb superior court- — -Judge Eoan. November 16, 1908.</p>

<p>1. In the absence of statutory authority, an officer can not administer a lawful oath to himself.</p> <p>2. Election managers are authorized by law to administer the official oath, ■ one to another; and if the three sign it in the presence of one another, although only one of them purports to attest it, the legal effect is that they administer the oath to one another, but not that each or any of them administers it to himself.</p> <p>3. An indictment for false swearing which charges that one of the defendants administered to himself along with others an oath as election manager, as to which the false swearing is charged, is, as to that defendant, subject to demurrer, on the ground that as to him the oath was not a lawful oath.</p>

<p>Accusation of unlawful sale of liquor, from city court of Hart-well- — -Judge Hodges. October 13, 1908.</p>

<p>Accusation of unlawful sale of liquor, from city court of Hart-well — Judge Hodges. October 13, 1908.</p>

Complaint, ■ from city court of Nashville — Judge Peeples. October 15, 1908. The Valdosta Bank and Trust Company sued Baskins on a promissory note made'by him, payable to Roberts & Jones or order, and indorsed by that firm. The indorsement was not dated. The suit claimed attorney’s fees, reciting that the statutory notice had been given.

<p>Accusation of larceny, from city court of Forsyth — ■ Judge Clark.. November 14, 1908.</p> <p>The plaintiff in error was convicted under an accusation charging him with the larceny of “6 ladies’ untrimmed hats, 2 white straw No. 141, 138, and 4 Cubans, untrimmed, No. 210,” the property of Mrs. Lula Jackson,, in the custody of the Central of Georgig Kailway Company. , From the evidence it-appeared, that at the time; alleged in the accusation, a car of the railway company was wrecked, and that among, other goods unloaded from it was a, pasteboard box full of hats, consigned to Mrs. Lula Jackson, Forsyth, Ga., which had been crushed or broken open. The boxes-containing hats were piled up with the other goods at the side ofthe railroad, and guarded by employees of the railway company,, but some of the boxes were afterwards missed. The State introduced in evidence hats described in the brief of evidence as “2-white straw hats untrimmed, Nos. 138 and 141, and 4 Cuban hats-untrimmed, No. 210;” and an agent of the railway company testi-_ fied, that two of the hats exhibited at the trial were obtained by him from a girl named Lyons, living near the scene of the wreck,, whose mother told him that the defendant “had a lot of them and was going about the country selling them, and that he gave these: to her daughter;” that he (the witness) then went to the defendant's house, near by, and demanded “the other hats which he had. gotten from the wreck, and he said that he had none,” but,, on being told what the woman had said, directed his wife to “get them,” and she brought to the witness four hats, exhibited at the trial. This was two or three months after the wreck occurred. Mamie Lyons testified, that the two hats which she gave to the-preceding witness were brought to her mother’s house by the accused, in his buggy, and that in reply to her question as to what he would take for them, he said he would sell them for 25 cents each, but when she started to pay him for them he said he would, not charge her anything, and he gave them to her. She and her mother, in their testimony, denied that they had said that the defendant was going about selling hats.</p> <p>Mrs. Lula Jackson testified as to the hats shipped to her and taken from the wreck, and that hats like those exhibited at the-trial were included in her purchase from the consignor and were missing from the boxes delivered to her, which had been mashed and broken open. The defendant, in his statement to the jury, said, that, while walking with John Horn through Horn’s cotton-patch, after the wreck, they found near the edge óf his field a paper box with a lot of “these hats” in it; that he took some of them and Horn took the others; that he did not think they were worth anything, and gave two of them to the Lyons girl and left the others at his house with his wife, and did not try to sell any of them; that he did not go to the wreck. Three other witnesses testified, that while they were walking together near the edge of John Horn’s cotton-patch, after the wreck, they found a pasteboard box with hats in it like those exhibited at the trial, but did not think they were “any account,” and one of the party kicked over the box, and they left the hats there. One of them testified that the box could be seen from the wreck.</p> <p>The motion for a new trial, the overruling of which is assigned as error, was upon the' grounds, that the verdict was without, evidence to support it, and that the court erred in admitting certain evidence.</p>

<p>Levy and claim, from city court of Nashville — Judge Peeples. October 24, 1908.</p>

<p>Certiorari, from Jackson superior court — Judge Brand. October 31, 1908.</p>

<p>Accusation of unlawful sale of liquor, from city court of Americus — Judge Crisp. November- 18, 1908.</p>

<p>Indictment for assault with intent to murder, from Liberty superior court — Judge Seabrook. November 16, 1908.</p> <p>The plaintiff in error was indicted for assault with intent to murder, and was convicted of the statutory offense of shooting at another. The indictment charged that he made an assault upon Hicks Moody and Allen Henry by shooting at them with a gun. From the evidence it appears, that while in a buggy, driving along a country road, about dark, he overtook Allen Henry and Hicks Moody, who were walking, and, on being hailed by him, Moody stopped his buggy, and a conversation took place between the two, in which Moody called him a liar, whereupon he got out of the buggy and fired at Allen Henry twice, although Henry had taken no part in the conversation and had done nothing to cause him to shoot. Henry was hit in the leg and seriously wounded. Moody was not hit, and the evidence shows that the defendant shot only at Henry. The defendant, in his statement to the jury, said, that while he was sitting in his buggy, Moody called him and came up to the buggy and engaged in an argument with him, called him a liar, and grabbed a gun which he had in the buggy, whereupon a tussle began for ■the possession of the gun, and he got out of the buggy, and in the struggle the gun went off and struck Henry accidentally. The evidence failed to disclose any motive on the part of the defendant for shooting Henry; it appeared that these two were lifelong-friends, and there was no present trouble between them,</p> <p>Hicks Moody’s name was marked on the back of the indictment, .■as that of a witness for the State. He was not introduced as a ■witness,'and his absence was not accounted for by evidence. After the verdict had been rendered it was discovered by the defendant’s counsel that Moody’s name on the back of the indictment had been marked out and the word “dead” written opposite the erased name.</p> <p>Besides the general grounds there are three special grounds of •the motion for a new trial: (1) That, without the knowledge or •consent of counsel for the defendant, the indictment was permitted to go to the jury with the name of Moody, the State’s witness, marked out and the word “dead” written opposite it, thus illegally and improperly getting evidence before the jury that Moody was •dead, and for that reason did not testify in the case. (2) That the court erred in permitting the solicitor-general to argue to the jury that there had been an effort on the part of the defendant to settle or compromise with Allen Henry, the prosecutor. The following language is set out in this ground: Solicitor-general: “Why, gentlemen of the jury, they have tried to settle this thing .and not have a trial. What does it mean?” Counsel for the defendant, to the court: “If your honor pleases, I don’t think that line of argument is proper; and besides, there has been no evidence .that there has been any attempted settlement between the parties.” The court, to counsel and the jury: “The jury has heard the evidence and can determine what has been proved. Go ahead with the argument.” Thereupon the solicitor-general, continuing his. argument, said: “There was an effort, gentlemen of the jury, to settle this case. If there wasn’t, why did Simon Martin bring-the defendant here to me in court, and why did Allen Henry make a statement to the judge about the case? Simon Mrartin says he-is only the bondsman of the defendant and brought him to me for-that reason. He brought this man in court and came here with him to get this thing settled. And all this shows that this defendant-is guilty, for he wanted to get it dropped.” It is insisted that the language of the solicitor-general was improper, illegal, and prejudicial to the defendant, and that the court should have stopped the solicitor-general, on objection made by' counsel for the-defendant, and instructed the jury not to consider such argument or statement. (3) That the court’s statement to the jury, set out in the second ground, was error, because it created the impression with them that the question as to whether there had been an effort to settle the case was a material issue for them to determine-in passing upon the guilt or innocence of the accused.</p>

<p>1. One whom the evidence shows to have been an accessory to the commission of a felony can not be legally convicted in a city court or county court, nor in a criminal court whose jurisdiction extends only to the trial of misdemeanors, although the principal may have been convicted of a misdemeanor. Where it appeared, from the evidence adduced upon the trial of one charged with the offense of receiving stolen goods, that if the goods were stolen, the principal thief was in fact guilty of larceny after trust, the criminal court of Atlanta was without jurisdiction to give any disposition to the case, other than to require the appearance of the defendant to answer the charge before the superior court.</p> <p>2. Proof of the trial and conviction of the principal thief is prima facie evidence of his guilt, but is not conclusive upon that point. It raises a presumption which may be rebutted. One who is charged as an accessory has the right, on his trial, to establish that the principal, although convicted, was nevertheless innocent.</p>

<p>Conviction of shooting at another, from Babun superior court— Judge Kimsey. November 27, 1908.</p>

<p>Accusation of cheating and swindling, from city court of Miller county — Judge Bush. September 14, 1908.</p>

<p>Indictment for burglary; from Cobb superior court — Judge Gober. December 30, 1908.</p>

Accusation of misdemeanor, from city court of Dawson — Judge Edwards. December 23, 1908. Gene Ellis, a farm-laborer, was convicted of a violation of §422 of the Penal Code.

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

<p>1. In a suit in rem all persons who have interest in the res should be allowed to intervene and be heard in behalf of their interests in it. Every such person has a legal interest in the controversy, because of his interest in the res. In a suit in personam, however, a petition to intervene, presented by one who is not a party thereto and who has no interest, in a legal sense, in the subject-matter of the suit, should be refused, especially where the applicant, of his own motion; seeks to be made a party defendant, and the plaintiff in the cause objects thereto.</p> <p>2. The right of a defendant to vouch into court another who is liable over to him, which is conferred by the Civil Code, §5234, does not include the right of volunteering to become a defendant, when no notice has been given by the defendant, and when the plaintiff has not asked such a one to be made a party defendant.</p> <p>3. The Western & Atlantic Railroad Company and the Nashville, Chattanooga & St. Louis Railway are separate and distinct corporations. The contract exhibited, in support of the petition to intervene, showing that it was an agreement to which the Nashville, Chattanooga & St. Louis Railway and A. were the only parties, held: Even if a breach of this contract might authorize a recovery by the Nashville, Chattanooga, & St. Louis Railway against A., still proof of the breach of such contract alone, without more, would not suffice as a basis for a recovery over by the Western & Atlantic Railroad Company against A.</p>

Action for damages, from city court of Savannah — Judge Freeman. March 9, 1908. The following are the material portions of the petition: “2d. That the Savannah Electric Company owns, operates, maintains, and controls a system of street electric railway, running in and through the streets of the city of Savannah, and, in particular, on Whitaker street from Fortieth street northward to Bay street.

<p>Action for damages, from city court of Miller county — Judges Bush. February 25, 1908.</p>

<p>Action on bond, from city court of Macon — Judge Hodges. January 9, -1908,</p>

<p>1. An affidavit to foreclose a laborer’s lien becomes mesne process by the filing of a counter-affidavit; and where the affiant lienor is a minor, this process is amendable by the appointment of a proper party as his next friend.</p> <p>2. Unless his parental power has been lost or relinquished, a parent is entitled to the value of the services of his minor child, whether the contract for the services is made by the parent or by the minor; and even as to advances or payments made by an employer to a minor for necessaries, the burden is upon the employer to show that such were really necessary. But where a laborer’s lien is foreclosed by a'minor as in his own right, and in his lien-affidavit it is averred that the contract was made by him, and where thereafter, upon the issue formed by the filing of a counter-affidavit, his mother (who is vested with his control), consents to act as his proehein ami, evidence of payments made by the defendant employer to him are admissible, to show that the debt for which the lien is claimed has been diminished or extinguished. In such a case it must be conclusively presumed that the mother acquiesced in the contract made by her minor son, and consented to his receiving the proceeds of his labor, and thereby manumitted him, at least during the life of the contract; and the plaintiff also is estopped from asserting that any payments made him. on the contract are affected by his minority.</p> <p>3. The evidence was sufficient to authorize the jury to sustain the plaintiff’s contention as to the nature of the contract, rather than that of the defendant; but a new trial should have been granted, to enable the defendant to have his plea of payment fully presented to the jury.</p>

<p>1. Though a wife’s deed of conveyance to her husband, where she has made a sale of her land to him without an order of the superior court of the county of her domicile authorizing the sale, is void, still, on the trial of an action between the husband and a third person, in which the rights of the wife are not involved, such a deed may be admissible, either for the purpose of showing the extent of his constructive possession or to serve as color of title. A deed from a wife to h'er husband, though void, will serve as color of title; but the possession of the husband can not be adverse if the husband and wife are living together.</p> <p>2. In the absence of a' request for more specific instructions, the defendant’s defense was sufficiently presented when the jury were told, that if they believed, from the evidence, either that the defendant’s engine did not cause the fire or that the engine was furnished with a sparkarrester and other appliances for the purpose of preventing the escape of fire or sparks, of a- good character and such as was in general use at the time by railroads, and that in spite of the use of such appliances, properly handled, fire escaped, the defendant would not be liable; joined with, the instruction that the presumption of negligence, arising upon proof that the plaintiff’s property was damaged, might be successfully rebutted by showing that the railroad company exercised ordinary and reasonable care and diligence in the equipment, maintenance, and operation of its machinery, and that if the jury found that such ordinary care was used, they should find for the defendant.</p> <p>3. The evidence authorized the verdict, and there was no error in refusing a new trial.</p>

<p>Indictment for murder, from Miller superior court — Judge Worrill. June 16, 1908.</p>

<p>1. The motion for continuance because of the providential absence of leading counsel complied strictly with all the statutory requirements, and was clearly and fully supported by the evidence. It should have been granted.</p> <p>2. The other assignments of error involve questions as to rulings on evidence and as to portions of the charge of the court, which are not likely to arise on another trial, and therefore are not decided.</p>

Indictment for assault with intent to murder, from Chatham superior court- — -Judge Charlton. December 28, 1908. The defendant was indicted for assault with intent to murder, and convicted of shooting at another.

<p>Accusation of misdemeanor, from city court of Newton — Judge Johnson. January 6, 1909.</p>

<p>1. The petition set forth a cause of action, and should not have been dismissed.</p> <p>'2. Neither a paragx-aplx in a petition nor an allegation therein which constitutes only a portion of a paragraph should, on special demurrer, be stricken for defects not specified by the demurrer.</p>

<p>Action for damages, from city court of Richmond county— • Judge Eve. May 8, 1908.</p>

<p>Complaint, from city court of Atlanta — Judge Reid. November 6, 1908.</p>

Action on contract, from city court of Augusta — Judge Eve. November 24, 1908.

Accusation of trespass, from city court of Springfield — Judge Smith. October 20, 1908. Cooper and Ponder pulled down a plank fence erected as a street boundary on land alleged to be a part of Mrs. Guyton’s lot in the town of Guyton; they were convicted of trespass, and they excepted to the overruling of their motion for a new trial.

<p>Conviction of assault with intent to rape, from Milton superior-court — Judge Gober. December 21, 1908.</p>

<p>Under the act approved December 5, 1902, amending the act creating the city court of Cartersville, that court is without jurisdiction to try a defendant who demands indictment by a grand jury, unless he has had a committal trial and has been committed for the offense, or has waived the committal trial.</p>

<p>‘Where a defendant is arrested .on a criminal warrant issued by a magistrate and, without demanding a committal trial, enters into a bond for his appearance at the court having jurisdiction to try him for the criminal ■ Offense, 'he -theréby -waives committal trial.</p>

<p>1. The crime of subornation of perjury consists of two essential elements,-the commission of perjury by the person suborned, and wilfully procuring or inducing him to commit the perjury by the suborner. The first element must be established by the testimony of two witnesses, or one witness and corroborating- circumstances. The second element may be sufficiently shown by the positive testimony of the person suborned.</p> <p>2. The nature and sufficiency of the corroboration necessary to prove the perjury must in each ease be determined by the jury, but the equilibrium between the oath of the alleged perjurer and the oath of the contradicting witness should be destroyed by material and independent circumstances strongly corroborative of the positive testimony of the witness. The circumstances of corroboration in this case measure fully up-to the foregoing test.</p> <p>3. No reversible error was committed by the court in ruling on evidence,., or in the charge to the jury; and the verdict is supported by the-evidence.</p>

<p>The evidence did not show that the defendant was in possession of the hog alleged to have been stolen; but even if such possession had been admitted, it was satisfactorily explained by the uneontradieted testimony of a witness who testified that he sold the hog to the defendant.</p>

<p>Certiorari, from Bibb superior court — Judge Felton. March 3, 1908.</p>

<p>Indictment for misdemeanor, from Gordon- superior court— Judge Fite. August 25, 1908.</p>

<p>1. The Court of Appeals is clothed, with power to' direct any order necessary for the proper adjudication -of a cause. It may give any direction to a cause pending in the court below, which may be consistent with the law and justice of the case, including the power of directing a specific, final disposition of the case. But this power will not be exercised unless the discretion of the lower court has been improperly used or not exercised at all.</p> <p>2. It was not error to order a new trial. A verdict for damages against two or more defendants as tort-feasors should be set aside when it is, as against any one of the defendants thus held liable, unwarranted by the evidence.</p> <p>S. A plaintiff can sue one or more than one, or he can sue all, of several joint tort-feasors in the same action, and the jury, by its verdict, can bind one and relieve another, as the evidence may authorize, but if the verdict be rendered against all of the defendants, the judgment thereon is single, and must stand or fall alone. Such a judgment is in law a creature of such nature that it can not survive the severance or amputation of any one of its members.</p> <p>4. In an action brought against a defendant as a joint tort-feasor, a recovery may be had upon an allegation of negligence in which the other alleged tort-feasors did not participate. And where it is alleged that one of the defendants, by his servant, committed a tort, and that two other defendants directed, counseled, caused, or procured this servant to commit the tort in the conduct of his master’s business, upon proof of these facts all or any one of them may be held liable. But if the connection essential to hold the two others is not established', — that is to say, if it is not shown that they directed, counseled, caused, or procured the servant to commit the tort, they may be discharged from liability, and the master alone be held liable for the wrongful conduct of his servant who eonimitted the act.</p>

<p>Action on insurance policy, from city court of Atlanta — Judge Beid. March 18, 1908.</p>

<p>Action for damages, from city court of Cordele — Judge Strozier. May 26, 1908.</p>

<p>1. A suit for $400 “cash” may be treated as a suit for money had and received, and be amplified by amendment setting forth in detail the circumstances of the transaction.</p> <p>2. Where a single mortgage is taken for two separate amounts due to two distinct parties, in legal effect it is equivalent to two mortgages taken contemporaneously upon the same property; and upon a suit by one of the parties secured thereunder against the other, it is permissible to show that the mortgage was collected as to only one of the amounts secured, and not as to the other.</p>

<p>1. The Court of Appeals has full'power and authority to determine whether municipal ordinances are unconstitutional.</p> <p>2. The General Assembly having, by the general tax act, expressed >and established the general policy of the State with reference to the existence of “locker clubs,” a municipal ordinance inconsistent with the general policy of the State as declared by the legislature is void. Unless it is shown that intoxicating liquors are sold by the club or its employees, the mere assembling of liquors in a bona-fide private club (whose membership is not open to the public at large) can not be controlled by municipal regulation, if the tax imposed by the State has been paid.</p>

<p>1. The Court of Appeals is without jurisdiction to consider the grounds of a motion to dismiss a bill of exceptions, predicated upon matters arising prior to the judgment’ granting or overruling the motion for new trial.</p> <p>'2. In a prosecution for keeping a lewd house, evidence of the general reputation of the house and of the women living therein is admissible in corroboration of other facts and circumstances" in the case; but it is error to instruct the jury that “it is not necessary for the State tef prove that there were acts of adultery or fornication committed at such house.” In order to authorize a conviction, the jury must be satisfied, either by direct evidence or by the circumstances, that the house was kept for the practice of adultery or fornication. It is the .gist of the offense that the house was kept for that purpose. It was therefore error to instruct the jury that “It would be sufficient if the State proves to your reasonable satisfaction that she bears the general reputation of being a lewd woman, and that the house or place kept by her bears the general reputation of being a lewd house or place of ■prostitution, and that the women there at that house bear the general reputation of being lewd women, and that men were seen to frequent the place by day and by night.” Reputation for lewdness may be a circumstance tending to show the character of the house, but the probative value of this circumstance is for the jury alone; and the facts •and circumstances adduced in any ease must reasonably satisfy the jury that the house was maintained for the purpose of prostitution, and that adultery or fornication was actually committed, and not merely that the reputation of the house or of its inmates is bad.</p>

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

<p>Distraint, from city court of Floyd county — Judge Hamilton. June 11, 1908.</p>

<p>The allegations of the petition, considered most favorably for the plaintiff, did not set forth a cause of action, and there was no error in sustaining a general demurrer thereto and dismissing the petition.</p>

<p>Action for damages, from city court of Thomasville — Judge. ■ Iiansell. May 23, ’1908.</p>

<p>1. It is the duty of the owner of a building which abuts upon a public highway to use ordinary care to keep it from being a source of danger to the public after its construction, as much as it is his duty originally to see that it is not a source of danger to the public by reason of improper or unskilful construction. While the owner of a building abutting upon a public street is not an insurer of the absolute safety of those who pass upon the sidewalk, reasonable care must be exercised by him to keep it in such condition as that neither "the building nor any part thereof will fall and' passers by be thereby injured.</p> <p>2. Where something unusual happens with respect to a defendant’s property over which he has control, and by such extraordinary occurrence' a plaintiff is injured (the occurrence being such as does not happen if reasonable care has been used), an inference may arise that the injury was due to the defendant’s negligence. The maxim res ipsa loquitur is a rule of evidence, to be applied by the jury, if applied at all. The inference which may in some cases arise from an unexplained occurrence which has worked an injury to another, that the defendant, who had in charge the instrumentality which ivas the direct cause of the injury was guilty of negligence, may or may not be dtawn by the jury; but, like the fact of negligence or no negligence, the inference which the jury may be authorized to draw is peculiarly an inference of fact; and consequently, where the inference of negligence may as well be drawn, as the inference that the casualty resulted from accident or the act of God, it is error to award a nonsuit.</p> <p>(а) The maxim res ipsa loquitur is to be applied with the greatest caution, and its application depends greatly upon the circumstances of" each particular case. But where the physical facts surrounding an occurrence are such as to create a reasonable probability that the occurrence — and the consequent injury — resulted from negligence, the physical facts themselves are evidential, and may or may not furnish evidence of the particular negligence alleged.</p> <p>(б) If the extraordinary character of the occurrence is sufficient to raise an inference of the negligence alleged, a prima facie case is established, and the burden of disproving negligence, especially in a case where the parties do not sustain to each other the relation of master and servant, is cast upon the defendant, to disprove negligence upon his part; this for the reason that it is more particularly within his power to explain the character and condition of the instrumentality which may have occasioned injury than within the power of the injured party.</p> <p>(c) In the absence of any satisfactory explanation that the occurrence was accidental or providential, or other sufficient explanation, if something unusual happens in respect to a defendant’s property or to something over which he has control, whereby the plaintiff is injured, and' the natural inference on the evidence is that the unusual occurrence is due to the defendant’s act, the occurrence, being unusual, is said to-speak for itself that such act was negligence. Bahr v. Lombard, 53, N. J. L. 233 (21 Atl. 190).</p>

<p>To call a man a liar and raise .a stick to strike him, if in anger, is “a menace of violence,” and is “calculated to excite alarm or to provoke a breach of the peace,”' and constitutes a breach of a bond to keep the peace, under the Penal Code, §§1238, 1239.</p>

<p>Complaint, from city court of Baxley — Judge Thomas. August 7, 1908.</p>

<p>Certiorari, from Bibb . superior court — Judge Felton. March 3, 1908.</p>

<p>Where a telegraph company, through negligence in the transmission of a message, has caused the price of a commodity to be misquoted to a proposed purchaser who accepts the offer, and the mistake in price is discovered after' shipment but before there has been delivery of the commodity, and the proposed purchaser then refuses to accept it at the price quoted erroneously in the telegram, the owner of the commodity would ordinarily be entitled to recover, against the telegraph company for its negligence, the difference between the market price of the commodity at the place from which it was shipped (not exceeding, however, the contract price at which the owner proposed to sell it in the telegram as delivered to the telegraph company) and the best price to be obtained, in the exercise of ordinary diligence, at the place to which the commodity was shipped, plus any incidental expenses, such as transportation charges for the carriage of the article to this latter point; but if the owner of the commodity knows that this ■difference will exceed the cost of reshipping the article to a point where it can be sold without loss, his recovery will be limited to what would he the freight charges and other expenses for the round trip.</p>

<p>An ordinary final hill of exceptions in a ease, civil or criminal, should be presented to the judge who presided in the cause, and certified by him, except in case of his dying subsequently to the ruling complained of and before the statutory period for certifying has expired. Where, just before the expiration of the term of office of a judge of the superior court, he overrules a motion for a new trial, the bill of exceptions complaining of this ruling should be tendered to him and signed and certified by him; and his successor in office has no power to sign and certify it.</p>

<p>1. An ex-judge of the superior court is authorized to sign a bill of exceptions tendered within the time required by law, complaining of a final judgment • rendered by him in a criminal ease during his incumbency in the office.</p> <p>2. The evidence fully authorized the verdict, but a new trial must be granted, because the court intimated an opinion upon the facts, during the progress of the trial, in violation of the Civil Code, § 4334.</p>

<p>Indictment for burglar}*, from Bibb superior court — Judge Felton. December 22, 1909.</p>

<p>Indictment for murder — 'Conviction of involuntary manslaughter in the commission of an unlawful act; from Whitfield superior-court — 'Judge Fite. December 16, 1908.</p> <p>The trial judge, in his charge to the jury, gave the language of the Penal Code, §71, and continued as follows: “It must also appear that the danger was so urgent and pressing at the time of the killing that, in order to save his brother’s life, or to prevent a felony from being committed upon him, the killing of the deceased was absolutely necessary.” In the motion for a new trial it is alleged that the court erred in so charging; that the language here quoted was not applicable to the case; that it is applicable only to mutual combat, and that there was no evidence authorizing it.</p>

<p>Service of a bill of exceptions before the writ of error has been certified by tile judge is not a valid service; and an acknowledgment of service and waiver of further service by counsel for defendant in error on a bill of exceptions, dated anterior to the date of the judge’s certificate, is equivalent to no service at all. Where either the entry of service or the acknowledgment thereof upon the bill of exceptions antedates the judge’s certificate, a motion to dismiss the writ of error will be sustained.</p>

Accusation, of violating prohibition law, from city court of Savannah — Judge Freeman. December 30, 1908.

<p>Conviction of manslaughter, from Pike superior, court — Judge Beagan. December 31, 1908.</p>

<p>Indictment for misdemeanor, from city court of Carrollton— •Judge Beall. January 12, 1909.</p>

<p>Indictment for burglary, from Sumter superior court — Judge Littlejohn. December 31, 1908.</p>

<p>Indictment for burglary, from Pierce superior court — Judge Parker. January 9, 1909.</p>

<p>Ordinarily, where intoxicating liquors are found in a person’s place of business, an inference that he is guilty of a violation of the prohibition law, in keeping such liquors at his place of business, may arise. But where the uncontradieted evidence shows that the liquor was brought into his place of business and hidden therein without his knowledge, by one not connected with the place of business, this inference of g-uilt would cease to be of sufficient evidentiary value to authorize a conviction.</p>

<p>1. When a demand for trial is entered in a criminal ease either as a matter of right or by special permission, the State is bound to try the accused at the term when the demand is entered or' at the next succeeding term. Trial or discharge are the only two alternatives.</p> <p>2. The term succeeding that at which the demand is granted by the court is the next regular term as fixed by law; and though that term may be adjourned over until some time other than that fixed for the regular term, still a defendant’s right to discharge' can not be defeated by adjourning one regular term into another regular term.</p>

<p>A defendant may be convicted of simple larceny on an indictment charging larceny from the person. Hence, if a defendant is acquitted under ■an indictment charging him with larceny from the person, lie can not, as against a plea of former jeopardy, be put to trial for tile same transaction under another accusation, charging him with simple larceny.</p>

<p>Indictment for adultery and fornication, from McIntosh superior court. — -Judge Charlton presiding. January 23, 1909.</p>

<p>Action for freight overcharges, from city court of Savannah— , Judge Freeman. May 4, 1908.</p>

<p>Action for damages, from city court of Nashville — Judge Peeples. June 12, 1908.</p>

Appeal, from Jasper superior court — Judge Lewis. September 23, 1908. Turnell brought suit in the county court of Jasper, on four promissory notes, against the makers and the indorser. There was a nonsuit as to the makers, and a judgment against the indorser. The plaintiff entered an appeal to tlie superior .court, as to the makers.

<p>Levy and claim, from city court of LaGrange — Judge Harwell. June 24, 1908.</p>

<p>1. The charge of the court submitted fully and clearly the law. pertinent to the issue.</p> <p>2. Where it is sought to impeach a witness by proof of contradictory statements, the jury may in its discretion believe the witness, whether corroborated or not.</p> <p>S. The constructive notice implied from the record of a mortgage does not necessarily import that the mortgagee has actual knowledge of such mortgage, or any interest in the property upon which the mortgage is alleged to create a lien.</p> <p>4. Either want of consideration or failure of consideration may generally be pleaded to a contract under seal. There being no requirement that a cancellation of a mortgage should be under seal, the court did not err in refusing to charge, as to a cancellation under seal, that the law conclusively presumes that the mortgagee received a consideration for the cancellation of the mortgage.</p> <p>5. No error required the grant of a new trial.</p>

<p>The judge of the city court having passed upon the facts by consent, and a finding contrary to Ms judgment not being demanded by the law and evidence, an affirmance of the judgment results.</p>

<p>1. It is a good defense to an action on a negotiable promissory note under seal, in the hands of the original payee, that it was executed without any lawful consideration.</p> <p>2. The common-law courts of England enforced specialties in the absence of consideration, not because the presence of a seal carried with it any presumption of consideration, but because consideration was not essential to an instrument executed with such formality. The doctrine of enforcing a contract because of the formality of its execution is older than the juridic concept of consideration as an element of a binding promise.</p> <p>3. The courts of equity recognize consideration as an essential element of all contracts, with but few exceptions, and do not recognize formality of execution as a substitute therefor. Hence lack of consideration is a good defense in equity to a contract under seal,</p> <p>4. A negotiable promissory note under seal is a legal hybrid unknown to the common law.-</p> <p>5. In this State an equitable defense not involving affirmative relief or extraordinary remedy may be filed to any action at law in any of the courts. Hence, to an action in a city court on a note under seal, the defense of lack of consideration may be successfully pleaded.</p>