Volume 6 — Georgia Appellate Reports

<p>Action for damages; from city court of Macon — Judge Hodges. October 27, 1908.</p> <p>Lillian Griswold, a nineteen-year-old girl, sued the street-railway company for personal injuries; her contention being, that, as she was about to alight from the car of the company on which she was a passenger, the car suddenly started forward without giving her time to alight and without warning, and threw her to the ground, hurting her. The contention of the defendant was that the girl, apparently under the influence of some drug, arose from her seat, walked out on the platform, and, over the protest of the conductor, stepped off the car while it was in rapid motion. There was evidence to support each of these contentions. The jury found in favor of the defendant; and the plaintiff excepts to the overruling of her motion for a new trial. The other facts are stated in the opinion.</p>

Conviction of manslaughter, from Jefferson superior court— Judge Eawlings. November 13, 1908. The homicide occurred at night on a country road near a house where a dancing party had been in progress, and where a quarrel had arisen among some of the male guests, among whom were the accused and the deceased. The testimony was in conflict, and was in some measure confusing.

<p>Trover, from city court of Miller county — Judge Bush. December 4, 1908.</p>

Certiorari, from Brooks superior court — Judge Mitchell. January 5, 1909. Hattie Lucas sought by possessory warrant to obtain certain household goods.

<p>1. A petition which shows that a landlord maliciously and for the purpose of injuring and damaging his tenant, whose term had not expired and whose rent was not in default, sued out a dispossessory warrant and caused the tenant to be evicted, sets forth a valid cause of action for the malicious use of civil process. When the eviction was completed, the action begun by the suing out of the dispossessory warrant was ipso facto ended; hence a right of action immediately accrued in favor of the injured tenant.</p> <p>2. Where demurrers, both general and special, are filed to a petition, and the trial judge at one and the same time sustains all of the demurrers and dismisses the action, and it appears that the petition is not subject to the general demurrer, the judgment will be reversed. A peremptory judgment of dismissal is not the proper disposition of the case upon the sustaining of a special demurrer.</p>

<p>Accusation of unlawful sale of liquor, from city court of Statesboro — Judge Brannen. October 30, 1908.</p>

<p>Indictment for unlawful sale of liquor, from Monroe superior court — Judge Reagan. December 16, 1908.</p>

<p>Certiorari, from Tift superior court — .Judge Mitchell. December 7, 1908.</p>

<p>The writ of error was prematurely brought, and is therefore dismissed.</p>

Miller sued the railway company for personal injuries (the cutting off of both of his legs), and recovered a verdict for $25,000. The railway company brought the case to this court, on the overruling of a motion for a new trial, and the judgment was affirmed. See Seaboard Air-Line Railway v. Miller, 5 Qa. App. 402 (63 S. E. 299).

<p>Accusation of carrying concealed weapon, from city court of Tiftou- — -Judge Eve. January 23, 1909.</p>

Petition for certiorari, from Morgan superior court — Judge Lewis. January 7, 1909. Loeb was indicted by the grand jury of Morgan county for a violation of the local-option liquor law which was in effect in that county in the year 1906. The case was transferred to the county court for trial,' and was heard before lion. Samuel H. Sibley, judge of the county court of Greene county, presiding on account of the disqualification of the local judge.

<p>1. In misdemeanors, all who perpetrate, aid, or abet the offense are principals.</p> <p>.2. If a person sells intoxicating liquor to a minor and ships it to him by a common carriel', and the carrier or its agent has information as to. what is contained in the package and delivers it to the minor, the per.son selling, the carrier transporting, and the agent delivering, and all -others who actively aid or abet the transaction are guilty, as principals, of a violation of the Penal Code, §444, which forbids the selling •or furnishing of intoxicating liquors to minors. If, however, the ear•rier or its agent does not know that the package contains intoxicating liquors, and there is in the circumstances nothing from which the jury would be authorized to infer guilty knowledge by the carrier or its agent, a verdict finding the carrier guilty of the offense is, as a matter of law, contrary to the evidence.</p>

<p>1. The evidence authorized the verdict, and there was no error in refusing a new trial.</p> <p>2. The rules of the defendant company were not introduced in evidence. The trial judge properly restricted an instruction which had been requested, — that the plaintiffs could not recover if their deceased father had violated a contract by which he obligated himself, under certain conditions, to release the defendant from all liability, — by adding a qualification in which the jury were instructed to inquire whether the stipulation of the contract by which the defendant sought to relieve itself was inserted for the purpose of bona fide enforcing the rules of the company, or merely for the purpose of avoiding liability which might arise from the violation of a rule, to the non-enforcement of which the company had consented.</p> <p>3. Proof that an employer, with full knowledge of the continued violation of rules imposed by him for the government of his employees, has acquiesced therein, will authorize the inference that the rule has been abrogated.</p> <p>4. A corporation knows of the violation of its rules and acquiesces therein whenever the particular agent of the corporation, who is charged with the enforcement of the rule in question, knows of its violation and acquiesces therein. The knowledge of the agent is the knowledge of the corporation; and though it is the duty of the inferior agent, charged with the enforcement of a rule, to inform his superior thereof, a breach of this duty can not affect the rights arising from his knowledge that the rule is being violated.</p>

<p>1. Whether it is negligence for a passenger to be upon the platform of a moving car must depend upon the attendant circumstances of danger, and the reason causing him to go upon the platform. So far from its being, as a matter of law, necessarily negligence for a passenger to be upon the platform of a moving car, it is ordinarily a question of fact for the jury whether his presence upon the platform is an act of negligence. The question of negligence can not be said to be one of law, unless, under the peculiar circumstances, the danger is so obviously great as that no one of ordinary prudence would, under any circumstances, subject himself thereto.</p> <p>2. Under the facts in evidence in this case, the cause was not one for the determination of the court, and should have been submitted to the jury; it was, therefore, erroneous to award a nonsuit.</p>

<p>1. The charge of the court on the credibility of witnesses successfully impeached is in harmony with repeated decisions of the Supreme Court and of this court, and is substantially in the language of the Civil Code, §5295.</p> <p>2. Where a railway company and one of its agents were jointly sued by an employee of the railway company, to recover damages for his false arrest and imprisonment on the charge of larceny in taking coal from the company’s yard, evidence that for years the employees of the company, with the knowledge and consent of the company and the agent, had made a practice of taking coal from the company’s yard was admissible. This evidence illustrated both the question as to the animus furandi of the employee in taking the coal, and the quo animo of the defendants in causing his arrest and imprisonment.</p> <p>3. No error of law appears, and the verdict is supported by the evidence.</p>

<p>Appeal, from Eichmond superior court — Judge Hammond. • July 27, 1908.</p>

<p>'While ordinarily a jury should attach more weight to positive than to negative testimony, yet they are not absolutely • bound to do so. Therefore, where the existence of a material and controlling fact in a case is strongly affirmed by positive testimony, and denied by other testimony, although somewhat negative in character, the question is issuable, and can not be determined by the court as a matter of law.</p>

<p>1. Where a judgment for damages has been recovered against a municipality for negligence in permitting a dangerous obstruction to be erected and maintained in the street, and the owner of the abutting property who erected and maintained the obstruction has been duly and timely vouched into court to defend the suit, in a suit by the municipality ovey. against-the vouchee the judgment against the former is conclusive against the latter as to the right of the injured party to recover the amount of the verdict, and as to all defenses that either the municipality or the party vouched could have set up in the first suit, and which were actually set up and passed upon in that suit.</p> <p>2. While a person injured by an unsafe obstruction placed over the sidewalk by an owner of abutting property may have a right of action against the city for negligence in allowing the obstruction on the sidewalk, this does not affect the liability of the owner responsible primarily for such obstruction. The owner’s liability arises from his negligent conduct in erecting and maintaining the dangerous obstruction on the sidewalk. The city’s liability arises from its negligence in not keeping its sidewalk in a safe condition. A party injured by such obstruction has a right of action against either the owner or the city, or both; and if the city is forced to pay for the injury caused by the obstruction, it has, ordinarily, a right of action over against the owner.</p> <p>3. The owner of property is liable for injuries caused by defective repairs made by the tenant in possession, where the lav1 imposes upon the owner the duty of making such repairs, or where the tenant is authorized by the owner to make the repairs.</p> <p>4. No error of law appears, and the verdict is supported by the evidence.</p>

<p>The only question in this ease is fully' controlled by the decision of this court in Bass Dry Goods Go. v. Roberts Goal Go., 4 Ga. App. 520 (01 S. E. 1134).</p>

<p>Trover, from city court of Dalton.' — 'Judge Lougley. September 7, 1908.</p>

<p>Action for damages, from city court of Baxley — Levi O’Steen, judge pro hac vice. September 22, 1908.</p>

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

<p>Certiorari, from Floyd superior court — -Judge Wright. July 8, 1908.</p>

<p>1. Where an attachment for purchase-money of personal property to which the plaintiff in attachment has reserved title is served by seizure of the property, before the property can be levied upon and sold under final judgment and execution the plaintiff must convey it by quitclaim to the defendant. But this conveyance is not necessary before the issuance of the attachment and the seizure of the property thereunder.</p> <p>2. In an attachment for purchase-money, the plaintiff is entitled to a general judgment in personam, as well as a judgment on the attachment, by giving the defendant the notice prescribed in the Civil Code, §4557.</p> <p>3. Under the evidence in this ease, the magistrate was fully authorized to render a judgment on the attachment, for the balance of the purchase-money, and also a general judgment against the defendant.</p>

<p>Action for damages, from city court of Bichmond county— Judge Eve. September 28, 1908.</p>

<p>Certiorari, from Morgan superior court — Judge Lewis. September 10, 1908.</p>

<p>Action for malicious prosecution, from city court of Eloyd county — Judge Hamilton. October G, 1908.</p>

<p>Certiorari, from Whitfield superior court — Judge Fite. October 22, 1908.</p>

<p>Trover, from city court of Floyd county — Judge Hamilton. October 10, 1908.</p>

<p>Appeal, from Houston superior court' — ■ Judge Felton. October 9,- 1908.</p> <p>The exceptions are to the direction of a verdict upon a rule to distribute money raised from a sheriff’s sale of property of Thorp. King had a distress warrant against Thorp for $90 and costs, and also a landlord’s lien for supplies, amounting to $126.13 and costs. Cooper had a mortgage fi. fa. against Thorp. Cooper was respondent in the rule, and made by his pleadings the point that King’s rent had been paid. Cooper made it appear, in the testimony, that he had paid to Davis & Company at Macon the note for $90, given by Thorp to King for rent; also that he had paid to Davis & Company certain notes of Thorp, aggregating about $166; but the testimony seems to indicate that the notes last referred to did not represent the items for which the landlord’s lien for supplies was prosecuted. King, in Ms testimony, admitted that he had placed the rent note with Davis & Company for collection. The judge directed a verdict ordering the sheriff to pay over the money to King on the landlord’s lien and distress warrant, in preference to the mortgage fi. fa. of Cooper. The record does not definitely disclose whether it was before or after the distress warrant was sworn out that Cooper paid Davis & Company the rent note.</p>

<p>1. A passenger upon a public conveyance may tender to the common carrier a larger sum than the amount due as fare, in payment thereof, and require the carrier to return the change. The sum tendered, however, must be a reasonable amount, and not unduly disproportionate to the amount of the fare.</p> <p>2. A street-railway company may enact and enforce a reasonable rule limiting the amount of change its conductors shall be required to make when a sum in excess of the fare is tendered by the passenger. A rule that the conductors shall make change to an amount not exceeding $2 is reasonable; and where such a rule exists, the tender of a $5 bill in payment of the Ave-cents fare, with a request for a return of the change, is not a good tender of the fare.</p>

<p>Complaint, from city court of Abbeville — Judge Nicholson. October 31, 1908.</p>

<p>Complaint, from city court of Atlanta — Judge Reid. December 5, 1908.</p>

<p>It appearing, from tlie evidence, that the verdict included' certain amounts for which the defendant is not liable in law, the court erred in not granting a new trial.</p>

<p>1. A lease for one year gave the tenant an option of claiming an additional term of one, two, three, or four years, provided notice of his election be given the landlord ninety days prior to the expiration of the first year; no notice was given, but the tenant nevertheless continued to occupy the premises and paid rent, which the landlord accepted', without question, objection, or explanation on the part of either party, for several months after the expiration of the first year. Held, that both the landlord and the tenant are bound for an additional term of one year.</p> <p>2. Where a lease for a certain term gives the tenant the option of claiming an additional term of one to four years, and the tenant continues in possession after the expiration of the first term, under such circumstances as to show an election of an additional term of one year, there can not be another- election to extend the lease over the remaining three years; and continued occupancy after the expiration of the second term, under a parol agreement creating an additional term of more than one year, would create a tenancy at will.</p> <p>3. The verdict being contrary to law, a new trial should have been granted.</p>

<p>Action for trespass, from city court of Tifton — Judge Eve. December 12, 1908.</p>

Action for damages, from city court of Savannah — Judge Freeman. December 28, 1908. This case came to this court upon the sustaining ftf demurrers, general and special, to the plaintiffs petition.

<p>1. A contract of guaranty or suretyship, entered into by an ordinary commercial or industrial corporation, not in furtherance of one of its authorized1 corporate purposes, is ultra vires.</p> <p>2. Tlie breach of a material term of a contract gives rise to a cause of action immediately, and the statute of limitations begins to run therefrom, notwithstanding the injured party may have suffered only nominal or general damages. The fact that at the time of the breach no special damages are ascertainable, or that the special damages are indefinite as to amount, does not prevent the running of the statute of limitations.</p>

<p>Accusation of adultery, from city court of Sylvester — Judge Williamson. January 30, 1909.</p>

<p>1. In a ease of arson, the corpus delicti consists of two fundamental facts: first, the burning of the house described in the indictment; and second, the fact that a criminal agency was the cause of the burning.</p> <p>2. On a trial for arson, if nothing appears hut the mere fact that the house was consumed by fire, the presumption is that the fire was the result of accidental, or natural or providential cause.</p> <p>3. It is well settled in this State that while a confession freely and voluntarily made may be sufficient to convict when corroborated by proof of the corpus delicti, yet, before it can be sufficient for this purpose, there must be proof aliunde of the essential facts constituting the crime.</p> <p>4. In this case there is no proof whatever tending to show that the crime of arson was committed by any one, and the conviction of the defendant is based alone upon his mere extrajudicial confession.</p>

<p>Accusation of gaining, from city court of Americus — Judge Crisp. February 8, 1909.</p>

<p>1. Whether a confession was freely and voluntarily made, when issuable, should be submitted to the jury for determination; but where the State’s evidence shows that an alleged confession was not freely and voluntarily made, the court should not allow it to go to the jury. The alleged confession in this ease, having been shown by the evidence for the State to have been induced by a well-founded fear of punishment, should have been excluded.</p> <p>2. On a trial for burglary, where the indictment charged the larceny of described articles, evidence tending to show a larceny by the defendant of other articles than those described in the indictment would not be admissible against him, unless the evidence showed also that the other articles were in the house when the burglary was committed, and were then stolen therefrom, or their larceny was in some way connected with the burglary and the taking of the property described in the indictment.</p>

<p>Action for damages, from city court of Macon — Judge Hodges.. March 23, 1908.</p>

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

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

<p>Application for mandamus.</p>

<p>Levy and claim, from city court of Dalton — Judge Longley. June 25, 1908.</p>

<p>1. The evidence demanded a verdict for the value of the personal property which had been wrongfully taken from the possession of the plaintiff by the agents of the defendants; and if any errors of law were committed by the trial court, they were for this reason immaterial and harmless. A righteous verdict under the facts should not be set aside because of trivial errors.</p> <p>2. “A mortgage executed in another State on personalty subsequently brought into this State, but not recorded in the county where the property is brought, within the six months provided by the Civil Code, §2726, is postponed to a purchase of the same property, made in good faith and without notice” of the mortgage; and this is true although the purchase was made before the expiration of the six months allowed by the statute for the record of the mortgage.</p> <p>3. A partnership is liable as such, in a suit to recover damages for a trespass to personalty, where the trespass was committed by the agent of the partnership in its behalf and by authority of its members, or where his trespass was expressly or by implication ratified by the partnership.</p> <p>4. The suit in this case, under the allegations of the petition, is one to recover damages for trespass on personal property, and, in form and substance, is an action ex delicto, and not ex contractu.</p> <p>5. The special demurrer to the paragraphs of the petition claiming damages for lost time, expenses, and attorney’s fees should' have been' sustained. The judgment refusing a new trial is affirmed, on condition that the plaintiff write off from the verdict and judgment these items of alleged damages; otherwise the judgment is reversed and a new trial ordered.</p>

<p>Action for breach of warranty, from city court of Dublin— Judge Burch. June 22, 1908.</p>

Action for damages, from city court of Cordele — Judge Strozier. July 30, 1908. Whitfield sued for breach of contract.

<p>The evidence demanded the verdict as directed.</p>

<p>1. An amendment to a petition filed against the “Atlantic Coast Line, owning and operating a railroad under the laws of Georgia,” by adding the-words “Railroad Company” after the word “Line” and before the word “owning,” so as to make the name of the defendant the “Atlantic-Coast Line Railroad Company,” and thus giving its proper corporate name, was not adding a new party, but simply correcting a misnomer.</p> <p>2. The assignments of error are entirely without merit, and the verdict is supported by the evidence.</p>

Action for damages, from city court of Atlanta — Judge Reid. September 19, 1908.

<p>Complaint, from city court of Bainbridge — Judge Harrell. October 13, 1908.</p>

<p>Action on eóntract, from city court of Atlanta — Judge EeidSeptember 39, 1908.</p>

<p>1. On tlie facts the jury could have found for either plaintiff or defendant, and the verdict ends the controversy.</p> <p>2. A street-raihvay company has only an equal right with the traveling public to the use of the street in which its track is laid. In using the highway at a public crossing the law gives to the traveler on the highway the same right to cross the track that it gives to the car to cross the highway, and imposes upon both the same duty of exercising reasonable care and prudence to avoid injuries.</p> <p>3. Trial courts are required to submit to juries only issues made by the pleadings and evidence.</p>

<p>Where an insurance company makes a proposal by letter to renew a policy of insurance, on terms and conditions stated in the letter, and the insured retains the policy, but makes no reply to the letter and does not pay the premium or indicate in any manner an acceptance of the policy until after the happening of a fire several months after the proposed insurance,: there is no completed contract of insurance. There must be some act of acceptance, binding on the party accepting as well as on the party proposing, to make a contract.</p>

<p>A replevy bond, given on filing an affidavit of illegality, by tbe defendant in a mortgage fi. fa. issued to subject personal -property, contained conditions varying from those prescribed by the statute, to wit: the bond was conditioned for the delivery of the property at the time and' place of sale, and was made payable to the levying officer, when, according to the statute, it should have been conditioned for the return of the property when called for by the levying officer, and should have been made payable to the plaintiff in fi. fa. Held, that the bond was amendable in both respects, before final judgment, so as to make it conform to the requirements of the statute.</p>

<p>1. The publication of false and libelous matter only by signing an affidavit to be used upon the hearing of a case in equity or upon the hearing of any other issue in which the use of affidavits is permissible is absolutely privileged, and will not support an action for libel.</p> <p>2. If one publishes a libel contained in an affidavit, intended for use in a judicial investigation or proceeding, otherwise than in some relation to that suit, the publication is generally not privileged.</p> <p>3. The defense of privilege can not be raised by demurrer to the petition, unless the facts upon which the privilege may be asserted appear upon the face of the petition.</p>

<p>,1. One who employs an independent contractor to do a specific piece of work, not in itself unlawful, is not liable for an injury caused by a casual act of negligence of the contractor while the work is in progress.</p> <p>2. The fact that the owner of a building to be constructed furnishes to the contractor the material for the building, or stipulates in the contract that the work of constructing shall be performed by the contractor according to plans and specifications of an architect and to the satisfaction of the engineer of the owner, does not make the owner liable for an injury resulting proximately and solely from a negligent act of the contractor in the work of construction.</p> <p>3. The evidence for the plaintiff clearly showed a ease of employer and independent contractor, and a tort for which the latter, if any one, was liable. The judgment of nonsuit was therefore properly awarded.</p>

<p>Complaint, from city court of Swainshoro — Judge Mitchell. October 1, 1908.</p>

<p>Appeal, from Franklin superior court — -Judge Worley. September 30, 1908.</p>

<p>The motion for a new trial rests solely on the ground that there is no evidence to support the verdict. An inspection of the record discloses that this contention is not well taken.</p>

<p>1. A contract “to pull and tie a certain fourteen-acre tract of fodder on the Barrow place when the same is ready to be pulled, at the rate of 60 cents per day, or 70 cents per hundred bundles,” is sufficiently defir nite as to time of beginning, work to be performed, and wages to be paid.</p> <p>2. Tlie evidence, taken, in connection with the defendant’s statement, affirmatively shows that there was no intent to defraud when the provisions were procured from the prosecutor by the defendant on his labor contract; and, therefore, the verdict was 'unauthorized.</p>

<p>Certiorari, from Washington, superior court — Judge Bawlings. November 7, 1908.</p>

<p>Appeal, from Walton superior court — -Judge Brand. October-26, 1908.</p>

<p>There was sufficient evidence to authorize the conviction.</p>

<p>'The evidence was sufficient to authorize the conviction.</p>

<p>Accusation of larceny, from city court of Blakely — Judge Jordan. March %, 1909.</p>

<p>The conviction in this case is contrary to law and the evidence.</p>

<p>Accusation of larceny, from city court of Statesboro — Judge Jordan presiding. February 20, 1909.</p>

<p>Indictment for selling liqnor, from Muscogee superior court— Judge Littlejohn presiding. March 12, 1909.</p>

<p>1. “Where proceedings are brought to enforce rights arising under a contract required to be in writing, failure to allege in the pleadings that such contract .was in writing can not be taken advantage of by demurrer. The silence raises no presumption that the contract exists only in parol.”</p> <p>2. The charge of the court is free from any material error; and the exception to the ruling of the trial judge, in permitting the question which was objected to, can not be considered, because only the question was objected to, and no statement is made as to the answer anticipated.</p> <p>3. A verdict in favor of the plaintiff was authorized by the evidence; but as the finding includes two items, amounting to $100, which were not proved, the judgment refusing a new trial is affirmed on condition that this sum be written off.</p>

<p>Appeal, from Berrien superior court- — -Judge Mitchell. September 26, 1908.</p>

<p>Where in.an action of trespass it appears that a named grantor conveyed to the defendant a portion of the standing timber on the land in question, and subsequently conveyed the land and the remainder of the timber to the plaintiff, and that the defendant cut some of the trees not included in the defendant’s timber conveyance, and it further appears that there has been no actual possession of the land, the plaintiff, in order to recover for the cutting of the timber not deeded to the defendant, must, under section 3877 of the Civil Code, show legal title to the land or to the timber involved in the suit. While the plaintiff in trespass may generally make a prima facie case by showing that he and the defendant claim under a common grantor, yet this principle is not applicable to the state of facts set out above. The grant of a portion of the timber conveys a distinct estate, separate and apart from the estate conveyed by the grant of the land and the remainder of the timber; and the doctrine of estoppel by reason of claiming under a common grantor applies only when both parties to the action claim title to the same property.</p>

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

<p>Action for damages, from city court of Savannah — Judge Freeman. October 19, 1908.</p>

<p>Action for damages, from city court of Fitzgerald — Judge Jay. November 28, 1908.</p> <p>The Garbutt Lumber Company sued Nancy and Jonathan Walker for damages on account of false representations as to the ownership of certain land and timber. The defendants demurred to the petition, on the grounds that no cause of action was set forth, that the suit was barred by the statute of limitations, and that there was a misjoinder of defendants. The court sustained the demurrer, and the plaintiff excepted.</p> <p>The suit was brought to the January term, 1908, of the city court. From the petition it appears that for many years Nancy Walker had been residing on a certain lot of land, but that only a part of it was in actual possession, and her- possession was merely that of a squatter without title. It is alleged that by reason of the fact that she was residing on the lot, and of the further fact that the plaintiff had never heard of any title being asserted to the lot, contrary to that of the Walkers, the plaintiff believed and had a right to believe that Nancy Walker’s possession was a bona fide possession under claim of right, and that she was the owner of the lot. On May 12, 1899, her agent, Jonathan Walker, ■acting with full authority from her, representing himself to be her agent with the right for and in her behalf to sell the timber on this lot, sold the sawmill timber thereon to the plaintiff and made to the plaintiff a lease of the same, the plaintiff paying the purchase-price. At the time of the sale Jonathan Walker represented to the plaintiff that Nancy Walker was the owner of the land and timber; yet both Jonathan and Nancy Walker knew of the facts stated above, and knew that she was not the owner of the land or the timber and that she had no bona fide claim to either. They failed to disclose this defect in the title, and Nancy Walker assented to the concealment of the defect by Jonathan Walker; and this concealment and failure to disclose the defect amounted to a fraud on the plaintiff, and avoided the contract mentioned above. At the time of the sale Jonathan Walker knew that the plaintiff believed that Nancy Walker was the true owner of the timber then about to be bought by the plaintiff, but wilfully failed to correct the mistake under which the plaintiff was acting, and allowed it to act upon said mistaken theory and to part with its money upon the •strength of the mistaken idea; all of which constituted fraud on the part of himself and of his principal, Nancy Walker. It was .a fraudulent concealment, done for the purpose of defrauding the plaintiff, and did defraud the plaintiff out of the purchase-money paid by it for the land. The plaintiff had no knowledge of the fraud until October 31, 1907, and could not have discovered the fraud by the use of reasonable diligence. About the year 1903 the plaintiff, acting under the said lease, cut and removed the sawmill timber from the land; and afterwards D. H. Pope brought a suit against the plaintiff, which, in October, 1907, was tried and resulted in a verdict against it for damages, for cutting and removing the timber. After that suit was filed, about March 1, 1904, M. W. Garbutt, the plaintiff’s secretary and treasurer, and one of its stockholders, went to Jonathan Walker for the purpose of obtaining information as to the title of Nancy Walker, and was informed by him that he bought the lot just after the civil war from one Thomas Gibbs, and had taken a deed from Gibbs, which was recorded but was lost. This statement was false and lulled the ■plaintiff into a sense of security, it being advised that Nancy Walker had lived on the place for 30 years or more, and knowing that if she had a bona fide color of title thereto as claimed, in good faith, her possession constituted the foundation for a prescriptive title which had ripened. Eelying, therefore, on this information, which, during the same year was corroborated by Nancy Walker, the plaintiff believed that Nancy Walker was the owner of the hind. Nancy Walker never had a genuine deed executed by Thomas Gibbs to her to this land, as w'as claimed by herself and Jonathan, nor did she ever have written color of title from any •source. The plaintiff did not discover the fraud perpetrated upon it as aforesaid until October, 1907, on the trial of said case; because of the false and fraudulent information given to it by Jonathan and Nancy Walker in 1904, above stated, that she did claim the land in good faith. The plaintiff seeks to recover as damages the sum paid by it on the above-mentioned judgment, attorney’s fees, etc.</p> <p>cited, as to fraud by misrepresentation or failure to disclose facts, and liability of principal and agent: Civil Code, §§3534, 3814, 4026-7; Ga. B. 2/66, 442; 4/95; 5/554; 6/458, 470; 16/434; 19/310, 312; 26/415; 52/135 (1); 63/312; 65/680; 70/297; 71/726 (1), 730; 72/819;. 75/98 (7a), 393 (3); 76/512 (3); 88/629; 94/573 (2); 97/673 (2); 105/147; 108/126, 130-1; 6 Michie’s Dig. Ga. E. 454, 501, 503; 20 Cyc. 84, 86. Statute of limitations: Civil Code, §3785; Ga. B. 4/315; 6/515 (2); 8/1 (2), 515 (2); 12/371 (2), 375-8; 35/40 (2), 43; 41/171; 98/484; 101/594; 107/807, 810; 122/425; 6 L. E. A. 799; 7 L. E. A. 826; 8 L. E. A. 687; 20 Cyc. 94; 25 Cyc. 1186-90, 1192-3.</p> <p>cited, as to allegations necessary in action for deceit: Civil Code, §3814; Ga. B. 32/382; 77/151; 95/535; 108/251. Statute of limitations: Ga. B. 60/449; 72/83; 81/611; 96/798; 101/594; 25 Cyc. 1181, 1182.</p>

<p>Bail-trover, from city court of LaG-range — Judge Harwell. November 25, 1908.</p>

<p>Complaint, from city court of Sylvester — Judge Park. November 28, 1908.</p>

<p>Motion for new trial, from Bibb superior court — Judge Felton. November 23, 1908.</p>

<p>Action on insurance policy, from Enlton superior court — 'Judge Ellis. December 2, 1908.</p>

<p>A conductor of a freight-train may be required to exercise both mental skill and manual labor in the performance of his duties; but where the printed rules.of the railway company, regulating his employment and prescribing the character of his work, clearly show that his services consist mainly of work involving the exercise of his intellectual faculties and business capacity, he is not a “laborer,” within the meaning of the Civil Code, §4732, and his wages are subject to garnishment.</p>

<p>1. In a criminal case where guilt is dependent wholly upon circumstantial evidence, the jury should be instructed that if the proved facts are consistent with innocence, the defendant is entitled to an acquittal.</p> <p>2. Where one is charged with the offense of keeping on hand at his place of business alcoholic, spirituous, malt, or intoxicating liquors, prohibited by law, and intoxicating liquors are shown to have been found there, such evidence is sufficient to support the inference that the forbidden liquors were kept by him; but this inference is not conclusive, for it may be shown, among other things, that they were not the property of the accused, that they had' been temporarily deposited in his place of business by some other person, and that he had no knowledge of their presence or existence.</p>

<p>Accusation of bastardy, from city court of Newnan — Judge Freeman. February 17, 1909.</p>

<p>The statutory offense of pointing a weapon at another may be included in the offense of assault with' intent to murder, where the assault is. charged to have been committed by pointing and aiming a gun or pistol at another. It is not necessary to negative explicitly the exceptions provided in a penal statute, by the operation of which a defendant may be justified or excused in the commission of an act otherwise unlawful, when the existence of the statutory exceptions is necessarily impliedly negatived by the language employed' in making the charge. Judgment may be pronounced upon a verdict finding one guilty of pointing a weapon at another although the pointing is not expressly charged to have been intentional, if the language used in the accusation is such as to raise no other implication than that the pointing and aiming was intentional.</p>

<p>1. The phrases, “to a moral and reasonable certainty” and “beyond a reasonable doubt,” as applied to the quality of proof in a case, are identical in meaning.</p> <p>2. The defendant was fairly tried and legally convicted, and none of the exceptions taken in the record are meritorious.</p>

<p>No. 1813. Certiorari, from Thomas superior court — Judge Mitchell. March 1, 1909.</p> <p>No. 1820. Certiorari, from Ware superior court — Judge Parker. March 22, 1909.</p>

<p>Accusation of shooting on Sunday, from city court of Montieello — Judge Thurman. March 16, 1909.</p> <p>The only evidence introduced was, in substance, that the accused was seen to get out of his buggy in a road in Jasper county on a specified Sunday and go to the side of the road and fire his pistol, and that when asked what he had shot at, he said “a mad dog.” In the motion for a new trial it was alleged, that the verdict was without evidence to support it, and that the court erred in charging the jury that if the accused shot on Sunday, not in defense of person or property, they should find him guilty; and erred in not charging that in order to convict, they must find that he fired the pistol wilfully and wantonly, and in not defining the words “wilfully” and “wantonly.”</p>

<p>Where the undisputed evidence clearly shows that in the commission of an alleged criminal act there did not exist either criminal intent or criminal negligence, a conviction was unauthorized.</p>

<p>Tlie conviction in tliis case was wholly unauthorized.</p>

<p>A municipality may, under its ordinances, punish for keeping intoxicating liquors on hand for the purpose of illegal sale; and it makes no difference in a particular case that the keeping of the liquor for this purpose was at a place of business or other public place. The municipal offense is distinct and separate from the State crimes which may have been incidentally committed in connection with it.</p>

<p>Certiorari, from Fulton superior court — Judge Pendleton. April 7, 1909.</p>

<p>Accusation of cattle stealing, from Miller superior court— Judge Worrill. March 1, 1909.</p>

<p>Accusation of resisting arrest, from city court of Blakely— Judge Jordan. March 2, 1909.</p>

<p>1. The evidence authorized the finding in favor of the plaintiff, and the amount of the verdict is not excessive.</p> <p>2. In the absence of a request in writing, it is not reversible error for the court to omit to charge upon the burden of proof. In the absence of a request for more specific instructions, it was not error to instruct the jury, upon the subject of the burden of proof, that “it is essential for the plaintiff in this case, in order for the plaintiff to recover, that the evidence shall show, by a preponderance thereof, that the plaintiff is entitled to recover,” although the court may not thereafter have specified of particularized each of the special points at issue as to which the burden of proof devolved upon the plaintiff.</p> <p>3. There being evidence that the cotton which was the basis of the present suit was delivered to the carrier, and was never delivered by the carrier to the consignee, it was not error to instruct the jury that a common carrier is bound to exercise extraordinary diligence, and that in case of loss the presumption óf law is against a common carrier, and no excuse avails the earner unless the loss is occasioned by the act of God or the public enemies of the State.</p>

<p>Complaint, from city court of Sylvester — Judge Park. February 17, 1908.</p>

<p>A note executed on Sunday as a part of a transaction connected with the maker’s usual or ordinary calling is void.</p>

<p>1. The evidence authorized the verdict/ -which was not immoderate in amount.</p> <p>2. Althouglrthe negligence with which a defendant is charged may be characterized in the plaintiff’s petition as wilful and wanton, if the specific facts alleged do not warrant such conclusion the rule of duty which merely requires the exercise of ordinary care and diligence is not affected thereby; nor does it in such a case become incumbent upon the plaintiff, by reason of such allegation, to prove more than is required by law to entitle him to recover. The legal conclusions of the court are to be drawn from the statements of fact contained in the pleadings, unaffected by the conclusions of the pleader. Seaboard Air Line Ry. v. Shigg, 117 Ga. 454 (43 S. E. 706) ; Central Ry. Co. v. Moore, 5 Ga. App. 562 (63 S. E. 642).</p> <p>3. The fact that the d'eath of a person resulted from an electric current conveyed by a metallic wire is evidence of the fact that such wire is capable of transmitting a current likely to produce death.</p> <p>4. It is not error to give in charge a section of the code in its exact language, even though such language may have been construed as having a meaning somewhat different from the popular acceptation of the terms employed, if the language of the statute is thereafter fully explained to the jury in accordance with the construction placed upon it by the Supreme Court.</p> <p>5. The fact that a parent is entitled to the earnings of his minor child may be a circumstance tending to corroborate other evidence of the parent’s dependence on the child, and of the fact that the child substantially contributed towards the parent’s support. The well-recognized interdependence of parent and child upon each other during minority, and the right of a parent to the assistance of his minor child, might also tend to repel any inference arising from evidence tending to show that dependence and! contribution, shown to have existed in the past, had been terminated.</p> <p>6. It is not violative of § 4334 of the Civil Code for a trial judge to instruct the jury that a material fact which is expressly conceded or virtually admitted is a fact.</p>

<p>Action for damages, from city court of Cordele — Judge Strozier. September 12, 1908.</p>

<p>Complaint, from city court of Reidsville — Judge Morgan. September 9, 1908.</p>

<p>Levy and claim, from city court of Floyd county — Judge Hamilton. October 22, 1908.</p>

<p>1. Tlie alleged errors are not presented in sueli manner as to give this court jurisdiction.</p> <p>2. Where a pleading is filed which the party may file as a matter of right, irrespective of the permission of the court to do so, and is subsequently stricken by the court for lack of legal sufficiency, it may be specified as record; but if it be such a pleading as requires the permission of the court for its filing, and if when it is presented to the court it is disallowed, it can not be specified as record, although'the party has gone through the formality of having it marked' filed by the clerk.</p>

<p>1. There is a misdemeanor in this State designated by the Penal Code as “trespass,” and therefore a warrant alleging that the accused has committed that offense charges him with a crime.</p> <p>2. The action of a magistrate in binding over the defendant on a criminal warrant is prima facie, but not conclusive, evidence of probable cause, in a subsequent suit brought by the accused against the prosecutor for malicious prosecution.</p>

<p>Action on insurance policy, from city court of Americus — Judge Crisp. November 17, 1908.</p>

<p>Attachment, from city court of Statesboro — Judge Branueu. October 15, 1908.</p>

<p>The undisputed testimony showing that the plaintiff in the action of trover had parted with his title prior to the institution of the suit and had not reacquired it, the verdict in his favor can not be sustained.</p>

<p>Action for damages, from city court of Sparta — Judge Little. November 25, 1908.</p>

<p>Complaint, from city court of Richmond county — Judge Eve. November 9, 1908.</p>

<p>Certiorari, from Fulton superior court — Judge Ellis. November 28, 1908.</p>

<p>Certiorari, from Pike superior court — Judge Eeagan. October 10, 1908.</p>

<p>Complaint, from city court of Hall county — Judge Boone. December 31, 1908.</p>

<p>Action, for damages, from city court of Macon — Judge Hodges. December 17, 1908.</p>

<p>Complaint, from • city court of Miller county — Judge Bush. December 4, 1908.</p>

<p>Action for damages, from city court of Camilla — Judge Scaife. December 11, 1908.</p>

<p>Certiorari, from Tift superior court — Judge Mitchell. December 13, 1908.</p>

<p>Certiorari, from Tift superior court — Judge Mitchell. December 18, 1908.</p>

<p>Action for damages, from city court of Waycross — Judge Myers. December 16, 1908.</p>

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

<p>Action for damages, from city court of Brunswick — Judge Krauss. December 21, 1908.</p>

<p>1. Only actual fraud authorizes the ex parte rescission of a horse-swap.</p> <p>2. Where a case pending in this court is assigned to the calendar for argument, and counsel receive the notice provided by rule 20 and fail to prosecute, it will be dismissed, and will not be reinstated' except for providential cause. However, the court may in its discretion reinstate, during the same term, a ease which upon its call on the calendar has been dismissed for want of prosecution, if it appear that the failure to prosecute was due to no fault of counsel, but to the fact that the notice was not sent, or was lost in the mails.</p>

<p>Accusation of misdemeanor, from city court of Amerieus— Judge Crisp. February 8, 1909.</p>

<p>Accusation of sale of liquor, from city court of Ashbum— Judge Hawkins. March 15, 1909.</p>

<p>Certiorari, from Fulton superior court — Judge Pendleton. April. 9, 1909.</p>

<p>Accusation of cheating and swindling, from city court of Quit-man — Judge McCall. January 8, 1909.</p>

<p>The evidence authorized the verdict. No error of law so serious as to require a reversal appears in the record.</p>

<p>Eor a cropper to carry a portion of the crop raised by him from one county to another in this State is not a disposition of it in violation of section 680 of the Penal Code of 1895.</p>

<p>Indictment for assault with intent to murder, from. Floyd superior court — Judge Wrigbt. April 8, 1909.</p>

<p>No error of law appears, and the evidence supports the verdict.</p>

<p>1. The evidence supports the verdict.</p> <p>2. The rule forbidding a party to impeach his own witness does not prevent that party from proving a state of facts inconsistent with the testimony of a witness who has testified on his side of the case.</p> <p>3. The middleman in an illegal sale of intoxicating liquor, to be free from criminal responsibility, must act solely as agent of the buyer. If he induces the transaction, or if he acts as agent for both parties, or if h‘> has a profit from the transaction, he is guilty of violating the law.</p>

<p>Accusation of sale of liquor, from city court of Statesboro— Judge Brannen. February 3, 1909.</p>

<p>Indictment for burglary, from Chatham superior court — Judge Charlton. April 1, 1909.</p>

Indictment for assault and battery, from Turner superior court ■ — Judge Park. April 13, 1909. McDonald was convicted of assault and battery upon one Dave Cook, whom the testimony shows he had whipped.

<p>Accusation of adultery and fornication, from city court of Tifton — Judge Eve. April 10, 1909.</p>

<p>1. This case is controlled by previous adjudications of the. Supreme Court and of this court.</p> <p>2. An assignment of error that “the judgment of conviction, sentence, and fine are contrary to law,” not being specific, presents no question for adjudication.</p>

<p>It is no valid objection to a charge of the court that it presents the issues of the case vividly and graphically, if it is fair, is not argumentative; does not sum up the testimony, and does not express or intimate any opinion as to what has or has not been proved.</p>

<p>Certiorari, from Fulton superior court — Judge Pendleton. . April 5, 1909.</p>

<p>Certiorari, from Fulton superior court — Judge Pendleton, March 37, 1909.</p>

<p>Complaint, from city court of Elberton — -Judge Proffitt. August 18, 1908. ■</p>

<p>Appeal, from Bibb superior court — Judge Felton. December 1, 1908.</p>

<p>The plaintiff had no legal interest in the contract of subscription sued' upon, and, therefore, no legal right to sue; and the petition was properly dismissed on demurrer.</p>

Attachment, from city court of Tifton — Judge Eve. January 18, 1909. J. J. L. Phillips sued out an attachment against P. A. Henderson, alleging that the defendant was indebted to him in the sum of $5,000, and resided beyond the limits of the State. This was levied upon certain shares of stock in the Phillips Lumber Company, alleged to be the property of Henderson.

<p>Complaint, from city court of Miller county — Judge Bush. January 3, 1909.</p>

<p>Action for damages, from city court of Savannah — Judge Freeman. January 5, 1909.</p>

<p>Complaint, from city court of Leesburg — Judge Long. January 29, 1909.</p>

<p>Action for damages, from city court of Waycross — Judge Myers. January 22, 1909.</p>

<p>Action for libel, from city court of Savannah — Judge Freeman. January 23, 1909.</p>

<p>Action for damages, from city court of Athens — Judge Cobb. December 10, 1908.</p>

<p>Action on insurance policy, from city court of Fitzgerald— Judge Jay. February 10, 1909.</p>

Action for damages, from city court of Atlanta — 'Judge Reid. January 12, 1909. Henderson brought suit against the'Seaboard Air-Line Railway and the Western & Atlantic Railroad Company for personal injuries. It appears that he was an employee of the Seaboard AirLine Railway (hereinafter called the Seaboard), and that he was being transported to his place of work over the track of the Western >& Atlantic Railroad Company (hereinafter called the W. &.

<p>Appeal, from Oglethorpe superior court — Judge Worley. December 2, 1908.</p>

<p>Levy and claim, from city court of Waynesboro — Judge Johnston. October 21, 1908.</p>

<p>Action for damages, from city court of Macon — Judge Hodges. January 12, 1909.</p> <p>Green sued the Massee & Felton Lumber Company for damages on account of personal injuries. His petition was dismissed on general demurrer, and he excepted. The petition alleges, that while he was in the employment of the defendant company as a laborer, laying a line of pipe on its premises, “certain persons not in the employment of the said . . company, at work in a tank situated on the premises of said company near the place where . . petitioner was laying pipe as aforesaid, negligently and carelessly threw a large piece of timber from said tank down upon . . petitioner, striking him across the back and injuring him” in a manner described; that “said persons were at work on said tank by the invitation, knowledge, approval, and consent of the said . . company;” and that “said injuries were caused entirely by the said . . company in permitting said piece of timber to be thrown down upon . . petitioner as aforesaid, and in thus rendering said place in which . . petitioner was at work unsafe; all of which was negligence on the part of said defendant, causing . . petitioner’s injuries as aforesaid.”</p>

<p>Indictment for larceny, from Walker superior court — -Judge Wright. April 8, 1909.</p>

<p>Certiorari, from Fulton superior court — Judge Ellis. March 27, 1909.</p>

<p>There was no error in refusing to sanction the certiorari, inasmuch as the defendant failed to give the bond required by law, or to file a pauper affidavit alleging her inability to give such a bond. The decision is controlled by the rulings in McDonald v. Ludowici, 3 Ga. App. 654 (60 S. E. 337), and Simon v. Savannah, 4 Ga. App. 172 (60 S. E, 1036).</p>

<p>Indictment for using obscene language, from Baker superior court — Judge Park. April 15, 1909.</p>

<p>1. On the trial of an accusation under the “labor-contract act” of 1903 (Acts 1903, p. 90), it is for the jury, and not for the court, to determine, from the evidence, whether the presumption that there was an intent to defraud, arising from the failure to perform the services, is rebutted by the showing of a good and sufficient cause why the labor was not performed, or the money advanced not returned.</p> <p>2. Consequently, in a case in which the defendant had been beaten by the prosecutor and thereafter had left his employment, it was error to instruct the jury that, “if the defendant provoked the difficulty by using opprobrious language to the prosecutor, such as would justify the assault, and as a result the prosecutor beat him, that would not be a legal excuse for failure to carry out the contract by the defendant.” Regardless of the merits of the quarrel between the employer and the employee, and no matter who might be the aggressor, if the defendant left the service of his employer on account of the beating or the difficulty, and not on account of a preconceived fraudulent intent which had no connection with such difficulty, he would not be guilty of a violation of the “labor-eon-tract act.”</p> <p>3. As a note is not payment until it is itself paid (unless an express agreement by the payee to receive it as payment is shown), the giving of a note by an employer, by which he promises at a future date to pay the amount of a pre-existing debt of an employee, is not an advance of the amount therein specified, within the terms of the statute of 1903, supra.</p> <p>4. One who agrees to furnish or pay for labor for the benefit of another is a contractor, and not a servant or laborer within the terms of the “labor-contract act” of 1903. Johnson v. State, 125 Ga. 243 (54 S. E. 184).</p> <p>5. “Before a prosecution can be successfully maintained under this act, the burden is upon the State to show that loss or damage was actually sustained by the hirer. Where it appears that advances were made and that the person to whom the advances were made performed a certain amount of service, but the value of such service is not made to appear, the prosecution fails to carry this burden of proof.” Abrams v. State,, 126 Ga. 591 (55 S. E. 497).</p>

<p>1. One who is accused of crime has the right to insist upon all of the formalities attached by law to a legal trial. Where, without his consent or over his objection, the jury charged with the determination of his guilt or innocence is dispersed prior to their return into court, a purported verdict, returned by one of the jury after they have separated as a whole and have been permitted to mingle with the public, and the defendant has thus been deprived of his right to poll the jury, is a nullity.</p> <p>2. In such a case as that above stated, the trial and the finding, being nugatory, amount to nothing more than a mistrial declared without the consent of the defendant and without legal necessity; and for that reason the defendant can not be arraigned before a second jury.</p> <p>3. Where, contrary to the orders of the presiding judge, a jury charged with the trial of a criminal ease is suffered by the sheriff to disperse before their verdict has been returned into court, the defendant is entitled to be absolutely discharged, for the reason that he can not, without his consent, be placed a second time in jeopardy.</p>

Certiorari, from Fulton superior court — Judge Pendleton. July 8, 1908. The Farmers’ Exchange obtained four judgments against W: B. Short in the justice’s court of the 1379th district, G. M., of DeKalb county.

<p>Complaint, from city court of Dalton — Judge Longley. January 1, 1909.</p>

<p>Certiorari, from Berrien superior court — Judge Mitchell. January 15, 1909.</p>

Action for damages, from city court of Atlanta — Judge Reid. January 25, 1909. Wolfe brought an action in the city court of Atlanta against the street-railway company, the gist of his complaint being that while he was a passenger upon one of the cars of the defendant, a conductor insulted him by insinuating that he was a negro. Demurrers, both general and special, were filed.

<p>The assignments of error are such as to make a reference to the evidence in the ease necessary to a proper decision of them. The record contains no legal brief of the evidence. The judgment therefore must be affirmed.</p>

<p>Illegality, from city court of Nashville — Judge Peeples. March 17, 1908.</p>

<p>Certiorari, from Fulton superior court — Judge Ellis. January 26, 1909.</p> <p>Orr brought suit in a justice’s court against “J. A. McLeay, J. S. Jarvis, and W. H. Moss, doing business at The Physicians’ Cooperative Company. He claimed against the defendants $20.62 on an account for money had and received. On the trial in the magistrate’s court it appeared that McLeay and others had incorporated a company under the name of the Physicians’ Co-operative Company. The president of the corporation, Dr. Goss, sold to the plaintiff five shares of the capital stock, of the par value of $10 per share, on an agreement that he was to pay 25 per cent, in cash, and that the balance of the purchase-price was to be realized from dividends paid on the stock. He paid the $12.50 to McLeay, the secretary of the company, and a certificate for tire five shares of stock was sent him. This certificate stated that the Physicians’ Co-operative Company was incorporated under the laws of Georgia. He also took the corporation’s receipt for the $12.50, stating that it was the first instalment of the purchase-price of the stock and that the balance was to be paid by dividends. Two dividends of $4.50 each were subsequently declared, and receipts in the corporate name were sent to him, and it was stated in them that these dividends had been applied on his contract. When these facts appeared from the plaintiff’s own testimonjq the magistrate refused to hear further evidence, and dismissed the case. He carried the case, by certiorari, to the superior court, and there the judge overruled the, certiorari. He contends that if he had been allowed to proced with the proof, he could have shown that Dr. Goss, who made the contract with him, was the agent of the defendants, and that the defendants received the money and used it; also that the Physicians’ Co-operative Company was never legally organized, and that McLeay and others were not officials of the company; that the ten per cent, of the capital stock required by law to be paid in before a corporation can be legally organized was never paid in; that the scheme was abandoned, and the attempt to organize the corporation proved abortive, and that he received nothing for his money.</p>

<p>1. Section 1499 of the Political Code of 1895, which confines the compounding and vending of drugs and medicines (with only certain enumerated exceptions) to licensed druggists, apothecaries, and pharmacists, relates to all pharmaceutical and medicinal preparations, whether recognized by the pharmacopoeia and' other standard works or not.</p> <p>2. The exception made by the third subdivision of section 1499 of the Political Code of 1895 in favor of “merchants selling family medicines not poison, as prescribed and allowed by the Code of Georgia,” has reference to section 1409 of the Code of 1873. It does not permit the compounding of medicines by merchants or others, but it allows merchants to sell such non-poisonous patent medicines and drugs already prepared, warranted by some licensed druggist, as have become generally considered to be household remedies, by reason of the fact that, through common use, the effects produced by them are well understood by people without medical knowledge.</p> <p>3. The injuring or the damaging of the reputation of a business which the law forbids to be carried on can not be made the basis of an action for the recovery of damages. Ex dolo’ malo non oritur actio.</p>

<p>Complaint, from city court of Fitzgerald — Eldridge Cutts, judge pro hac vice. March 6, 1909.</p>

<p>Action on insurance policy, from city court of Miller county— TV. I. Geer, judge pro hac vice. March 11, 1909.</p>

<p>Action on bond, from city court of Tifton — Judge Eve. March 13, 1909.</p>

<p>1. When a servant brings suit against liis master for personal injuries received in the course of the employment, and the conduct of a coemployee is involved, the latter, however important be his official title, is to be regarded as a fellow servant as to the work at hand, if he is employed by authority of the master in doing mere servant’s work or is engaged solely in executing the ordinary details of the labor.</p> <p>2. A servant may recover of a master for injuries resulting from the concurrent negligence of the master and a fellow servant.</p>

<p>Indictment for obtaining money on false writing, from Cobb superior court — Judge Morris. April 3, 1909.</p>

<p>Accusation of assault and battery, from city court of Blakely— Judge Jordan. April 23, 1909.</p>

<p>It appearing that the matters which the judge declined to certify were absolutely immaterial to the consideration of the error attempted to be assigned by the bill of exceptions which was presented, and that the judge could have stricken the same, under the provisions of the Civil Code, §5528, par. 3, as mere surplusage, it is directed, if counsel for the plaintiff in error present a bill of exceptions with such immaterial matter omitted, in accordance with the direction of the judge, that thereupon the judge certify such bill of exceptions.</p>

<p>1. It being unnecessary to aver or prove that a libel was seen or read, the word “express,” when used in an accusation of libel, is synonymous with the word “publish;” and it was not error to overrule a demurrer to an accusation in which it was averred that the defendant “in writing did say and express” an alleged libel, which was set forth in full.</p> <p>2. Communications made to a secret fraternal, benevolent society are privileged, if made either pending an investigation into an alleged violation of its by-laws by one of its members, or in good faith for the purpose of causing an investigation and a trial of such member pursuant thereto. A§ a libel must be not only false, but malicious, one accused of this crime has the right to show that the statement made by him was privileged and made bona fide, for the sole purpose of causing srtch an investigation; and all the circumstances leading up to the charge made by him, as well as the nature and sources of the information upon which he acted, and the result of the trial in the secret order, should be submitted, to enable the jury to determine whether the defendant was influenced by malice or acted in good faith.</p>

<p>1. In making a preliminary statement to the jury of facts which he intends or expects to prove, the solicitor should confine himself to facts which, under the rules of law governing' the admissibility of evidence, he will be allowed to prove; and when his statement embraces irrelevant and prejudicial facts, the court, on objection, or sua sponte, should interfere and instruct the jury to disregard those facts which are irrelevant and prejudicial and which have been improperly stated.</p> <p>2. The admission of testimony merely irrelevant is usually an immaterial error, but when such testimony, in addition to its irrelevancy, is also presumptively prejudicial to the defendant, another trial should be granted. Especially is this true when the relevant evidence is not clear and satisfactory as to his guilt.</p>

<p>Accusation of misdemeanor, from city court of Moultrie— Tudge McKenzie. May 15, 1909.</p>

<p>1. There being no evidence that the lien of the attachment for purchase-money had been discharged by the proceedings in bankruptcy, the plaintiff’s right of recovery was not affected. The bankruptcy court has the right either to preserve or to set aside claims of lien against the bankrupt’s estate. But where an adjudication in bankruptcy is relied upon to destroy an existing lien, whether the point be made by the trustee in bankruptcy, or by any other party at interest,'the burden is upon him wlio asserts the affirmative to show that the bankrupt court has set aside the lien. An adjudication in bankruptcy does not necessarily avoid existing liens against a bankrupt’s estate. On the contrary, such liens may be set up and established in the bankrupt court.</p> <p>2. The evidence authorized a finding that the sale by the defendant in attachment to the claimant was not bona fide; and, consequently, the judgment rendered was not erroneous.</p>

<p>1. Unless tlie defense that the contract relied on by the opposite party is unenforceable for lack of compliance with the statute of frauds is raised in the trial court, the right to raise it will be deemed to have been waived.</p> <p>2. The verdict, as amended by the order of the judge in requiring a portion of the recovery to be written off, is sustained by the evidence. The judge did not err in requiring the recovery to be written off to the extent that it was in excess of the amount justified by the proof.</p>

<p>Appeal, from Decatur superior court — Judge Spence. December 28, 1908.</p> <p>B. B. Bower brought suit in a justice’s court to the January term, 1908, against Perry Moore, agent for his wife Eliza Moore, and Perry Moore individually, on an account for one half of the cost of putting up a fence, amounting to $95.62. A bill of particulars was attached to the summons, and showed specifically the cause of action -and the items of the account. At the same term to which the suit was filed the plaintiff voluntarily dismissed it. Subsequently suit was brought to the February term of the justice’s court upon the same account by B. B. Bower Sr., trustee, against Perry Moore Sr. individually, and as agent for his wife Eliza Moore, and against Eliza Moore. At the trial the plaintiff dismissed the suit as to Perry Moore Sr. individually, and as agent for his wife Eliza Moore; and the suit proceeded against Eliza Moore alone, and resulted in a judgment in favor of the plaintiff. The defendant appealed to a jury in the superior court. The defendant in the justice’s court filed a demurrer to the summons, because jurisdiction was not therein alleged as to the person of the defendant, and because the cause of action was not set forth with sufficient definiteness by the summons and the bill of particulars thereto attached. The defendant also filed a plea in abatement, on the ground that the plaintiff, at the January term of the court, brought suit against the same defendants for tlie same cause of action, an cl then voluntarily dismissed the suit, and had brought the present suit without payment of the costs of 'the first suit, and without having made any affidavit in forma pauperis. The court overruled the demurrer and struck the plea in abatement, and the defendant filed exceptions pendente lite. The jury found in favor of the plaintiff. The defendant moved for a new trial, on the general grounds; because of certain rulings on the admission of testimony; because of certain instructions in the charge of the court to .the jury, alleging that the contentions of the defendant were not fully and properly stated, and that in the excerpts set forth from the charge the judge expressed or intimated an opinion on the facts; and because of certain questions propounded by the judge to the witnesses, on the ground thac such questions were leading and contained an intimation or expression of opinion on the evidence. The motion was overruled, and the defendant excepted.</p> <p>The evidence showed, that plaintiff had erected a line fence between the land which he held as trustee and that of the defendant; that about eight or ten years before, the plaintiff had erected a fence between his land and that of the defendant, and that the new fence for which the suit was brought was built in the same place; and it was contended by the plaintiff that the defendant, through her husband acting as her agent, and in charge of her property, had agreed with the plaintiff that she would pay one half of the cost of erecting this fence. The fence was erected by the plaintiff within three or four hundred yards of the defendant’s house, and it was admitted that it protected the defendant’s land from the cattle. Plaintiff testified positively as to the agreement to pay one half of the cost of the fence. The defendant denied that her husband was her agent in the matter, or that she had ever consented, either by an agent or individually, to pay one half the cost of the fence. There was conflict in the evidence as to the agency of the husband. There was no conflict as to the fact that the fence was erected by the plaintiff, and no conflict as to its cost, or that it was beneficial to the estate of the defendant.</p> <p>When the case was called in the Court of Appeals, the defendant in error moved to dismiss the bill of exceptions, because it was signed and certified by W. N. Spence, who at that time was not judge of the superior court, but whose term of office had expired, and there was no order by the clerk of the superior court designating him as the proper person to sign and certify the bill of exceptions as ex-juclge, as required by law. 'The defendant in error also moved to dismiss the exceptions pendente lite, on the ground that the exceptions were not tendered, certified, and filed during the term of the court when the decisions complained of were made, nor within the time required by the statute, were not filed with the clerk of the court until after the filing of the motion and the amended motion for a new trial and the order of the judge refusing the same, and were therefore too late for consideration.</p>

<p>Action for damages, from city court of Atlanta — Judge Eeid. January 16, 1909.</p>

<p>The evidence for the plaintiff and all reasonable deductions therefrom, when most favorably considered, did not authorize a verdict in his behalf, and the trial court should have sustained the motion for nonsuit.</p>

<p>1. Pleadings are construed most strongly against tlie pleader, and whore a plea both admits and denies the execution of a contract which binds the pleader and the adverse party to mutual obligations, the admission, and not the denial, must prevail.</p> <p>2. If an order bo given to a manufacturer or dealer for a specific article of a known and recognized kind, and if the defined and described article be actually supplied, there is no implied warranty that it will answer the purpose for which it is intended by the buyer.</p> <p>3. Where a plea of fraud, stripped of conclusions of law, fails to set forth specific facts amounting to fraud, it'may properly be stricken on demurrer.</p> <p>4. If in a contract of purchase the buyer agrees that his retention of the article for more than thirty days without written complaint to the seller “shall be a waiver of all complaints, defects or damages,” failure to give the prescribed notice precludes the seller from setting up that the article is defective.</p> <p>5. After the demurrers to the defendant’s pleas had been sustained, in view of the admissions remaining, there was no error in entering up final judgment for the plaintiff.</p>

<p>Action for damages, from city court of Savannah — Judge Freeman. June 29, 1908.</p>

<p>The evidence would have authorized the inference that the forfeiture arising from the non-payment of assessments had been waived by the insurance company; but a verdict in favor of the plaintiff was not demanded, inasmuch as there is no evidence to show that the company waived the forfeiture arising from the non-payment of the annual dues.</p>

<p>One who merely cuts and hauls logs to a sawmill, and claims no title to such timber, can not enforce a lien for furnishing supplies to a sawmill. “Lien laws, being in derogation of the common law, are to be strictly construed, and he who claims a lien, must show that there was a contract, by the terms of which he is entitled to the lien he claims.” The contract in this ease may have entitled the plaintiff to a laborer’s lien, but does not establish a lien for furnishing supplies to a sawmill.</p>

<p>Appeal, from McIntosh superior court — Judge Seabrook. July 18, 1908.</p>

<p>Complaint, from city court of Nashville — W. D. Buie, judge pro hac vice. September 5, 1908.</p>

<p>Lien foreclosure, from city court of Mount Vernon — Judge Geiger. September 14, 1908.</p>

<p>Action for damages, from city court of Douglas — -Judge Koan. October 9, 1908.</p>

<p>Indictment for burglary, from Floyd superior court — Judge Wright. October 1, 1908.</p>

<p>Trover, from city court of Miller county — Judge Bush. September 30, 1908.</p>

<p>Certiorari, from Fulton superior court — 'Judge Ellis. September 17, 1908.</p>

<p>Action for damages, from city court of Dublin — Judge Jordan presiding. November 3, 1908.</p>

<p>The evidence authorized a recovery in behalf of the plaintiff, the requests to charge, so far as pertinent, were covered in the general instructions of tlie judge to the jury, and there was no error in refusing a new trial.</p>

<p>The credibility of the witnesses is exclusively for the jury. No error of law is assigned, and, the evidence fully authorizing the verdict of guilty, there was no error in refusing a new trial.</p>

<p>Indictment for rape, from Chatham superior court — Judge Charlton. January 18, 1909.</p>

Action for damages, from city court of Macon- — ■ Judge Hodges. December 5, 1908. Jones brought suit against the Eoyster Guano Company, seeking-to recover damages for the erection and maintenance by the defendant of a fertilizer factory near his home in such a manner as to create a nuisance.

Complaint, from city court of Atlanta — Judge Calhoun. December 14, 1908.

Action on contract, from city court of Dalton — Judge Longley. December 29, 1908. The M. D. & H. L. Smith Company contracted to purchase from the Strickland Cotton Mills one hundred thousand yards of sheeting, to be delivered in instalments extending through an interval of several months.

Indictment for misdemeanor, from Bartow superior court— Judge Fite. January 18, 1909.

<p>Action for damages, from city court of Atlanta — Judge Calhoun, December 4, 1908.</p>

<p>Accusation of disturbing divine worship, from city court of Dalton — Judge Longley. December 16, 1908.</p>

<p>Certiorari, from Fulton superior court — Judge Ellis. January 22, 1909.</p>

<p>Under the act of 1899 (Acts of 1899, p. 48), judges of the city courts are authorized and empowered to preside in the courts of one another interchangeably, and, while so presiding, to try all cases there pending which the judge of the court is disqualified or providentially prevented from trying. Other cases the judge so presiding may, by consent of the parties, try and determine, and the judgment rendered therein will be binding, and neither of the consenting parties will thereafter be heard to question liis right to render the judgment; and especially would a party in such case be estopped from denying the authority of the presiding judge to render judgment therein, after he had recognized the validity of the judgment by filing a motion for a new trial on other grounds.</p>

<p>It was not error to dismiss tlie certiorari. The plea in abatement was properly overruled. It is manifest from the context that the word' “furnishing,” employed in section 64 of the act incorporating Fitzgerald (Acts 1907, p. 635) was inserted by a mere clerical mistake, instead of the word “punishing.”</p>

<p>Where, on the trial of a person indicted for the offense of carrying a pistol concealed, a witness for the State testified that the defendant had a pistol concealed underneath his overcoat, and witnesses for the defendant testified that at the time referred to by the State’s witness he did not have an overcoat, and was carrying the pistol fully exposed to view in a basket, a charge to the jury that “carrying a pistol in a basket or bag upon the arm, and not for transportation alone, is a violation of section 341 of the Criminal Code of Georgia” was not only an incorrect statement of the law, since the jury were not told that the pistol must be concealed, but, in the absence of any evidence that -the defendant, in carrying his pistol in a basket, ever concealed it, was not adjusted to nor authorized by the evidence. In the absence of evidence that the pistol, if concealed, was concealed in a basket, such an intimation might tend to disparage and discredit the testimony in behalf of the defendant, offered for the purpose of showing that the pistol upon the occasion in question was carried in a manner different from that contended for by the State.</p>

<p>Complaint, from city court of Bainbridge — Judge Harrell. March 24, 1909.</p>

Indictment for selling liquor, from city court of Cartersville— Judge Eoute. April 24, 1909. A witness for the prosecution testified that he bought whisky from the defendant at one Erwin’s shop. On cross-examination, upon stating that he worked at the Park hotel, he was asked by counsel for the defendant if there were not whisky bottles under the cellar, there.

<p>Accusation of misdemeanor, from city court of Cartersville— Judge Foute. April 14, 1909.</p>

<p>The court erred in not discharging the defendant.</p>

<p>In a criminal case a fact relied upon as a defense, which, if true, would constitute a good defense, is sufficiently proved to entitle the defendant to an acquittal, if the evidence raises a reasonable doubt as to the existence of such fact.</p>

<p>Trover, from city court of Richmond county — Judge Eve. April 7, 1909.</p>

<p>The evidence was weak and unsatisfactory; but it was sufficient to authorize the jury to find the defendant guilty. The charge accurately and lucidly presented the issues involved in the case, and this court has no power to grant a new trial.</p>

<p>Complaint, from city court of Milieu — Judge Jones. April 15, 1909.</p>

<p>The bill of exceptions not being unqualifiedly verified by the trial jud^e, the writ of error must be dismissed.</p>

<p>Complaint, from city court of Macon — Judge Hodges. May 1, 1909.</p>

<p>1. A State court lias jurisdiction to enforce the liability imposed upon the initial carrier in an interstate shipment of goods by the Hepburn amendment to the 20th section of the interstate-commerce act. The decision in the case of Southern Pacific Co. v. Crenshaw, 5 Ga. App. 675 (63 S. E. 865), adhered to on review.</p> <p>2. A provision in a contract for the carriage of live-stock that the shipper shall give written notice of any loss or damage before the animals are removed from destination and before they are mingled with other animals is not applicable to a suit for the value of an animal which died in transit and was therefore never delivered.</p> <p>3. Arbitrary limitations of value and preadjustments of the damage in contracts of carriage are invalid under the general law, and are likewise invalid under the 20th section of the interstate-commerce act as amended by the Hepburn act of 1906.</p> <p>4. Under the Federal statute referred to in the preceding headnotes, the initial carrier is responsible for “any loss, damage or injury . . caused by it” or by the connecting carriers. This creates a liability for all losses or damages for which the carrier would be responsible at common law in the absence of a special contract.</p> <p>(a) When used of a person or other subject charged with an affirmative duty of care or of good conduct, so to speak, the word “caused” implies not only active misconduct and deeds of commission, but also passive neglect, deeds of omission, and failure to exercise duties faithfully.</p>

Indictment for assault with intent to rape, from Thomas superior court — Judge Roan. May 1, 1909. The plaintiff in error was indicted for assault with intent to commit rape, and was convicted of assault and battery.

<p>The only material error committed during the progress of the case in the court below can be remedied by direction; therefore the ease will not be • unconditionally reversed, but will be affirmed with direction.</p>

<p>Certiorari, from Fulton superior court — Judge Pendleton. April. 27. 1909.</p>

<p>“When in a trial for crime the accused, through, his counsel, requests the court in writing to give in charge to the jury a stated proposition as a rule of law applicable to the case under the evidence, and this request is complied with, the accused can not thereafter justly complain that the charge requested and given was erroneous.” Howard v. State, 115 Ga. 245 (41 S. E. 654).</p>

<p>A case of cheating and swindling under the “labor-contract act” of 1903 was not made out by the evidence; and the conviction was therefore unauthorized.</p>

<p>Accusation of gaming, from city court of Nashville — Judge Peeples. May 15, 1909.</p>

<p>“All the material terms of a contract entered into in behalf of a county by the county authorities having jurisdiction over county matters must be in writing and entered on their minutes.” The statutes of this State do not create any such office as county physician, nor prescribe the duties of any such officer; therefore a simple memorandum on the minutes of the county commissioners, that a designated person was elected county physician at a named salary for a stated period, does not evidence such a contract on behalf of the county as will authorize suit thereon against the county.</p>

<p>An agent of a corporation is competent as an attesting witness upon a mortgage or other similar instrument executed in favor of the corporation, if he has no personal financial interest in the transaction.</p>

<p>Indictment for kidnapping, from Cobb superior court — Judge Morris. June 9, 1909.</p>

<p>Complaint, from city court of Abbeville — Judge Nicbolsou. May 12, 1909.</p>

<p>Certiorari, from Decatur superior court — Judge Park. June 12, 1909.</p>

<p>Indictment for assault with intent to murder, from Elbert superior court — Judge Meadow. May 31, 1909.</p>

<p>Indictment for manslaughter, from Elbert superior court— Judge Meadow. May 31, 1909.</p>

<p>Accusation of misdemeanor, from city court of Griffin — Judge Flynt. June 12, 1909.</p>

<p>Certiorari, from Fulton superior court — Judge Ellis. May 25, 1909.</p>

<p>Indictment for car-breaking, from Bibb superior court — Judge Felton. June 26, 1909.</p>

<p>Indictments for unlawful sales of liquor; from city court of Eloyd county — Judge Hamilton. May 3, 1909.</p>

<p>Complaint, -from city court of Nashville — Judge Peeples. August 31, 1908.</p>

Complaint, from city court of Savannah — Judge Freeman. August 4, 31, 1908. The Commercial Bank of Savannah sued O’Connell, Tietjen, Goette, Fetzer, Manning, Iieitmann, Whatley, Knight, and Koneman, setting up its cause of action in two counts. The first count proceeded against O’Connell as maker, and the other defendants as sureties, on the following promissory note: “$15,000.00. Savannah, Ga., Feb. 7, 1908.

<p>Trover, from city court of Dublin. — Judge Burch. October 13, 1908.</p>

<p>Complaint, from city court of Sylvania — Judge Boykin. January 28, 1909.</p>

<p>Action for deceit, from city court of Jefferson- — -Judge Stark. August 14, 1908.</p> <p>Russell, J., being disqualified, Judge Ellis, of the Atlanta circuit, was designated to sit in his stead.</p>

<p>Action for damages, from city court of Washington' — Judge Hardeman. September 14, 1908.</p>

<p>Action for damages, from city court of Eeidsville — Judge Morgan. September 16, 1908.</p>

<p>Action for damages, from city court of Atlanta' — Judge Reid. November 9, 1908.</p>

<p>Complaint, from city court of Abbeville — Judge Nicholson. December 16, 1908.</p>

<p>In the light of the evidence, there is no such error in the record as would justify a reversal of the judgment refusing a new trial.</p>

<p>Action for damages, from city court of Kichmond county— Judge Eve. October 22, 1909.</p> <p>A refrigerator and an ice-box in use in the store of Speth, in his milk and butter business, were seized under an attachment sued out by Maxwell. The trial of a traverse of the attachment resulted in a verdict and judgment in favor of Speth, .and he sued Maxwell for damages, alleging that the trespass of Maxwell in causing the seizure and removal of the property forced him to close up his business; that through the trespass he suffered actual damage, in the loss of his refrigerator, ice-box, and stock of goods, amounting to $200; in the closing up of his business and consequent enforced idleness for five months, $500; and in damage through the humiliation to which he was subjected by the trespass, $1,000. It was alleged that Maxwell, in causing the levy, acted with malice and without probable cause. On the trial of the .action for damages there was evidence as to actual damage to the plaintiff’s business, in consequence of the seizure. The court directed a verdict in favor of the defendant; to which the plaintiff excepted.</p> <p>cited: Ga. R. 80/508; 67/58 (4); Civil Code, §3844.</p> <p>cited: Ga. R. 29/64; 30/519; 54/473; 72/480; 73/534; 75/73; 79/638; 86/238; 96/148; 96/730; 104/235; 118/140-41; Civil Code, §3843.</p>

<p>1. The affidavit upon which an attachment is based is amendable, not only as to form, but also as to substance.</p> <p>2. While the affidavit to obtain an attachment must originally be taken and tested before an officer duly qualified to issue attachments, still a commercial notary public may verify an amendment to the grounds of an attachment issued by the proper officer, though the attachment issued upon grounds defective or not authorized by law.</p> <p>3. A commercial notary public whose term of office has expired may still be a good de facto officer for the purpose of attestation. It is not error to refuse to set aside a judgment on account of defects in the pleadings as to which no point was made before the rendition of the judgment, and where the defects, if any, were amendable or cured by the verdict. A motion to set aside a judgment does not question the competency or sufficiency of the evidence which induced the judgment.</p> <p>5. Upon a motion to set aside a judgment there is no review of the evidence. The court is conclusively presumed to have had before it sufficient evidence to authorize the judgment, and the only question is whether the record shows that the proceedings were such a nullity as that, regardless of what the evidence may have been, the judgment was unauthorized. Nor can the judgment of a court of competent jurisdiction be attacked or set aside upon the ground that the party against whom the judgment was rendered was misled by the statements of his adversary, and thereby prevented from making a defense, unless it first appears that there was good reason why he should have been misled. A statement by counsel for a plaintiff that he has been informed that his client desires his case dismissed, and that his client may give the case any direction he sees proper, does not relieve counsel for the defendant from the obligation of seeing that the. case is actually dismissed, nor prevent the counsel for the plaintiff, where his client has abandoned his case (or effected a settlement with the opposite party), from prosecuting the cause for the recovery of a conditional fee.</p>

<p>The plaintiff’s evidence authorized the inference that the employee whose homicide was the subject-matter of the suit was injured by the running of the machinery of the defendant company, and that he was free from fault; or that the proximate cause of his death was the negligent act of his fellow servants; and the court erred in granting a nonsuit.</p>

Complaint — appeal, from Pike superior court — Judge Eeagan. January 19, 1909. The American Wringer Company sued the Oxford Knitting Mills for the purchase-price of six universal iron-frame wringers.

<p>1. In a suit by a passenger against a common carrier, for an illegal ejection from the conveyance because of his refusal to accede to a wrongful demand' for fare, evidence that immediately after the ejection the passenger tendered a second fare and attempted to re-enter the conveyance is admissible, for the purpose of showing aggravating circumstances authorizing the recovery of punitive damages.</p> <p>2. It is erroneous to instruct the jury that they can give compensatory damages for wounded feelings and additional punitive damages, in the event aggravating circumstances appear, for the purpose of deterring the wrong-doer or compensating the plaintiff for wounded feelings. There can be no double recovery of damages for the purpose of compensating the plaintiff for wounded feelings.</p>

<p>Complaint, from city court of Sandersville — Judge Jordan. January 11, 1909.</p>

<p>Action for damages, from city court of Atlanta — Judge Beid. January 4, 1909.</p>

<p>The petition as amended sets out a good cause of action, and the court erred in dismissing it on demurrer. The special -demurrers filed were fully met by the amendments allowed, and' the court did not err in overruling these demurrers.</p>

<p>Action for damages, from city court of Savannah — Judge Freeman. February 23, 1909.</p>

<p>The judges of the superior, city, and county courts must, when counsel for either party requests it before argument, begins, write out their charges and read them to the jury, and it is error to give any other or additional charge than that so written and read.</p>

<p>1. Where the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a' final disposition of the ease, a direct bill of exceptions lies therefrom.</p> <p>{a) A judgment refusing to sustain a motion for a nonsuit will support a writ of error, unless the ease eventuates in a mistrial.</p> <p>{&) Where, at the close of the plaintiff’s evidence, the defendant makes a motion for a nonsuit, which is refused, and thereafter the defendant introduces no evidence, and verdict and judgment are rendered in favor of the plaintiff, it is unnecessary, in a direct bill of exceptions sued out within thirty days from the judgment refusing the nonsuit, to except to or assign error on the verdict and judgment rendered in favor of the plaintiff.</p> <p>2. Under the evidence in this case, the questions as to whether the master was negligent, and whether the servant was guilty of contributory negligence or had assumed the risk, were issuable; and the judge did not err in refusing a nonsuit.</p>

<p>Complaint, from city court of Nashville — Judge Peeples. February 19, 1909.</p>

<p>Action for damages — appeal, from Whitfield superior court— Judge Eite. January 14, 1909.</p>

<p>Action for damages, from city court of Moultrie — Judge McKenzie. February 3, 1909.</p>

<p>Petition for certiorari, from Rabun superior court — Judge Kimsey. October 12, 1908.</p>

<p>No error of law appears, and the verdict as directed’ by the court was demanded by the evidence.</p>

<p>Complaint, from city court of Douglas — Judge Roan. February 36, 1909.</p>

<p>Action for damages, from city conrt of Sparta — Judge Little. February 25, 1909.</p>

Action for damages, from city court of Douglas — Judge Roan. February 26, 1909. The petition alleged, that on July 24, 1907, the plaintiff purchased from the defendant through the defendant’s husband, who was acting as her agent in the transaction, a house and lot known as the Summerlin Hotel and premises, for $1,500, paying $1,000 in cash and $500 in the following December.

<p>Eor the reasons stated in the opinion, the amount of attorney’s fees recoverable in the ease should have been submitted to the jury.</p>

<p>Indictment for bigamy, from Lowndes superior court — Judge Mitchell. March 8, 1908.</p>

<p>Certiorari, from Haralsou superior court — Judge Edwards. March 15, 1909.</p>

<p>Action for damages, from city court of Macon — 'Judge Hodges. March 6, 1909.</p>

<p>This ease is controlled by the decision of the Supreme Court in the case of Dodson Printers’ Supply Go. v. Harris, 114 Ga. 966 (41 S. E. 54).</p>

<p>1. If the holder of a policy of life insurance sends to the company on the day the premium is due a check in payment thereof, and when the cheek is presented at bank payment is refused because of lack of funds to the credit of the drawer, the company, although it has delivered the premium receipt to the insured, may, by taking the proper steps, repudiate the transaction for the legal fraud resulting from the insured’s having- sent a check without having in bank the funds to meet it, and may enforce a lapse of the policy for non-payment of premium. But if the company, in such a case, after notice that the check has been dishonored, retains it, and, instead of repudiating- the transaction by returning the check and demanding back its receipt, insists upon the insured’s paying it after the date on which the policy would otherwise have lapsed, a waiver of the punctual payment of the premium in cash results. If the insurance company accepts and retains a note, check, or other interest-bearing obligation for the premium, the policy will not be held to be lapsed or forfeited for non-payment of premium, even though the note or other obligation -is not paid at maturity, unless there is an express provision in the policy providing that a failure to pay any such obligation at maturity shall result in a lapsing or a forfeiture of the insurance. Prima facie the liability to pay interest is regarded as the only penalty for failure to meet at maturity an ordinary indebtedness.</p> <p>2. Where a policy of life-insurance provides that after three full premiums have been paid, if the policy should lapse for non-payment of a subsequent premium the insured should have the privilege within six months thereafter of surrendering the policy and taking his choice of a sum of money in cash, or a paid-up life policy for a slightly larger sum, or extended insurance for the full face of the policy for a stated term of years (the exact figures being set out in a table annexed), Held, (a) that the privilege so extended the insured is not a mere gratuity personal to the insured alone, but is a property right which on his death may survive to his beneficiary; (b) that so long as the person insured lives, time is of the essence of the contract, and his choice as to which option he will take must be exercised within the six months after a lapse occurs, or it is ended as to him and as to the beneficiary; but if he dies after a lapse and before the expiry of the six months, time is no longer of the essence, as against the beneficiary; fc) that provisions of the policy relating peculiarly to the continuation of the insurance risk are inapplicable and immaterial when the policy has been converted into a death claim by the insured’s having died; (d) that upon the death of the insured within six months of a lapse (in a ease where the extended insurance would •have run beyond that period) the beneficiary is entitled to hold and sue upon the original policy as a death claim against the company for the full amount of its face value.</p>

<p>Action for damages, from city court of Waynesboro — Judge Davis. April 13, 1909.</p>

<p>Action for damages, from city court of Dalton — Judge Route presiding. April 3, 1909.</p>

<p>There was no error in refusing to charge the jury the proposition embodied in the written request, as it was unsound in principle and wholly inapplicable to the issues in the case. No other assignment of error is insisted upon, and the court did not err in refusing a now trial.</p>

<p>1. A deed of bargain and sale from a wife to her husband to property in this State must, in order to be valid, be approved by the superior court. Such a deed, unless approved, will not confer upon the husband such a title as will comply with the condition of a fire-insurance policy that it is to be void if the insured does not hold the property by an unconditional fee-simple title.</p> <p>2. A deed of gift from a wife to her husband does not require the approval of the judge of the superior court, in order to pass a valid title. Parol evidence is admissible to show that a deed apparently founded on a valuable consideration is in fact a deed of gift.</p> <p>3. Where the “iron-safe clause” attached to a policy of fire-insurance recites that its terms are to be applicable if the policy covers “merchandise or other personal property,” the phrase “other personal property” means articles in the nature of merchandise, and does not* include ordinary store fixtures such as show-cases, iron safes, etc.</p>

<p>Action for damages, from city court of Atlanta — Judge Reid. March 14, 1909.</p>

<p>Conviction of manslaughter, from Jasper superior court — Judge Lewis. May 14, 1909.</p>

<p>Attachment, from city court of Jeffersonville — Judge Shannon. May 19, 1909.</p>

<p>Action for damages — appeal, from Greene superior court— Judge Lewis. June 15, 1909.</p>

<p>Application for mandamus.</p>

<p>Appeal, from Gordon superior court — Judge Fite. February 24, 1909.</p>

<p>Complaint, from city court of Floyd county — Judge Hamilton. March 12, 1909.</p>

<p>1. A tenancy at will is an interest in land, and is capable of being damaged by the erection or maintenance of a nuisance.</p> <p>2. Under the code of this State a nuisance is not, as at common law, essentially an injury to real property. Any unlawful use of one’s property whereby another is injured, whether the injury is to property, to business, to person, or otherwise, is an actionable nuisance.</p> <p>3. Public or quasi-public corporations are, so far as they exercise legitimately and in a proper manner the powers expressly or by reasonable and necessary implication conferred on them, liable in damages only for taking or damaging property.</p> <p>4. The properly doing of that which the law authorizes is not a nuisance.</p> <p>5. The justification and exemption from ordinary liability afforded to public-service corporations by the law or their respective charters extend only so far as the authorization of the law extends. If they act beyond the powers conferred by law or by the charter, they can not relieve themselves from the ordinary rules of damage by showing the public nature of the business carried on by them.</p> <p>6. It is never to be presumed that the legislature intended to authorize a corporation to erect a nuisance materially tending to destroy the life or health of others.</p> <p>7. Corporations engaged in the operation of plants for the generation and transmission of electricity for the purpose of lighting cities and towns, operating railroads and street-cars, and furnishing light and power to the public, are public-service corporations, and are expressly recognized as such by the laws of this State. They possess the power to exercise the right of eminent domain. They may dam streams and back water over the lands of others upon payment of just compensation. But in the construction of dams and in the backing of water they must choose their sites with due regard to the surroundings. They are not authorized to maintain stagnant ponds, polluted pools of water, or places in which mosquitoes breed in unusual numbers, to the endangering of the health of surrounding communities.</p> <p>8. There was testimony from which the jury might have found that the plaintiff had a spell of malarial fever as a result of being bitten by anopheles mosquitoes, bred in unusual numbers in stagnant water caused by the defendant’s dam, but that the mosquitoes would have been incapable of communicating the disease if they had not previously bitten a person having malaria in his system. Held, that the court properly refused to charge the jury that under these circumstances the damages would be too remote to hold the defendant liable for damages.</p> <p>9. Where the question is as to the cause of an attack of malarial fever suffered by the plaintiff, it is relevant for him to prove that the defendant erected a dam which caused the water to become stagnant and the mosquitoes to breed in unusual numbers, that previously there had been no malarial fever in the community, that the erection of the dam and the breeding of the unusual number of mosquitoes was followed by an epidemic of malarial fever, and that in the opinion of experts malarial fever is communicated by mosquitoes.. The testimony was circumstantial, but of some probative value.</p> <p>10. Prima facie any practicing physician is competent to testify as an expert as to the methods by which malarial fever may be communicated. His competency is not destroyed by reason of the fact that his views do not coincide with those generally held by the members of his profession and by other scientists. The weight to be given his testimony is for the jury.</p> <p>11. When one is in possession of premises as a tenant, and another maintains a temporary nuisance whereby the premises are rendered unhealthful, and the tenant and dependent members of his household are made sick, the tenant may recover not only for the diminution caused to the value of his leasehold interest by the fact that the premises have become undesirable for habitation, but also for the direct damage caused him by the illness of himself and his family. His illness and that of the household is evidentiary on the question as to whether the premises have been rendered undesirable for habitation, and therefore of less rental value; but the pain and suffering, physician’s bills, loss of time, etc., directly resulting from the illness, are elements of damage apart from the loss sustained in the shrinkage of the value of the property, and there may be a recovery of the damages from both sources when the pleadings and the evidence are such as to authorize it.</p> <p>12. When the injury sued for consists in damage to the value of a tenancy at will, and to the plaintiff’s person through illness suffered by himself, and to his purse through the loss of service of members of his family, tlie plaintiff is not required to make proof of the loss with arithmetical accuracy in dollars and cents. He is entitled to recover for all actual damages, the extent of them to be estimated by the jury according to their enlightened consciences, from all the facts proved in the case.</p> <p>13. No legal reason appears for reversing the judgment of the court below refusing a new trial.</p>

<p>Complaint, from city court of Moultrie — Judge McKenzie. May 13, 1909.</p>

<p>1. When the relation of passenger and carrier has been created, the carrier is bound to exercise extraordinary care and diligence in performing all of the duties imposed by that relationship.</p> <p>2. One who enters a railroad passenger-coach with a ticket bought from an agent of the railroad, giving him passage or transportation from the starting point to the point named in the ticket, is a passenger upon the railroad, and is entitled to the rights of a passenger, and the railroad company must use extraordinary care and diligence towards such passenger. If the passenger does some act which gives the railroad company a right to terminate the relationship, the right must be exercised without unnecessary force and violence, and without violating the duty of respectful treatment, which continues until the passenger lias been actually ejected from the conveyance.</p> <p>3. Where there has been a breach of a duty giving rise to a cause of action, and the injured party claims punitive damages, all the surrounding circumstances, accompanying the breach of duty, may be given in evidence to the jury.</p>

<p>1. After verdict it is too late for a party, who upon the trial made no objection to testimony which was inadmissible or of no probative value, to urge for the first time, as a reason why a new trial should he granted Mm, the failure of the judge to exclude such testimony upon the motion of the opposite party. His failure to object upon his own part, or to join in the objection of his opponent, will be construed as a waiver of all objections to it, and as a tacit admission that he considered it beneficial to his cause.</p> <p>2. In no case will error in rulings upon testimony require the grant of a new trial to that party to whom the incorrect ruling or failure to rule was helpful rather than hurtful. Injury, as well as error, must be shown.</p> <p>3. The evidence authorized the verdict, and the refusal to grant a new trial was not error.</p>

<p>Accusation of misdemeanor, from city court of Fitzgerald— Judge Jay. June 8, 1909.</p>

<p>Where the relation of landlord and cropper exists, the title and the possession of the growing crops are in the landlord until his claims have been fully settled. Hence, in an accusation of stealing or attempting to steal a portion of the growing crop so owned and possessed, the ownership should be alleged to be in the landlord, and not in the cropper.</p>

<p>Accusation of misdemeanor, from city court of Waynesboro— Judge Davis. July 1, 1909.</p> <p>The accusation was based on the “labor-contract act” of 1903 (Acts 1903, p. 90). The motion for a new trial was on the general grounds, that the verdict of guilty was without evidence to support it, etc. Rhodes, the prosecutor, testified, that on the last Saturday in November, 1908, the defendant, who was then working with him as a “cropper” under .a contract for the year 1908, made an oral contract with him “to run a share-crop for the year 1909,” on which he made advancements to the defendant as follows: December 23, 1908, $23; January 2, 1909, $7; February 1, $7; February 28, $8; also $1.54 in meat on January 1, and 75 cents in tobacco on February 28. The defendant began his crop and stayed on the place and worked until March 13, 1909, when he left without the knowledge or consent of the prosecutor. From March 1 to the 13th, on account of bad weather, there was very little to do, and he worked only a day or so on the crop contract. He left with his family (who had been working with him), saying he was going to visit relatives and would return to work on the following Monday. He did not return, and the money advanced was not returned, and no offer was made to return it. It was nearly a month before the prosecutor found where he was. When he left he owed the prosecutor $48, this including “everything in provisions, supplies, and cash;” and the prosecutor lost this amount by reason of the defendant’s failure to carry out the contract, “besides the guano and other things,” and would have lost more if he had not been able to get somebody to work the crop. He testified, that he gave the defendant no cause to leave, and that there had been no complaint on the part of the defendant. The defendant had been working with him since 1906. The defendant stated to the jury, that since the close of the first year, he had been begging Mr. Ehodes for a settlement, and had never gotten one; at the end of the last year Ehodes promised to settle for that year when certain cotton in the warehouse was sold, but did not keep the promise, and told him that the cotton brought only enough to settle his last year’s account, and that there was nothing coming to him; he and his wife and child were “barefooted and almost naked,” and needed their part of the crop, .and he told Ehodes this; finally Ehodes would not let him have the money to buy rations, but would furnish them and charge very high prices for them; he “did slip away from” Ehodes, as other negroes had done, because they knew that if Ehodes found out that they were going to leave, he would beat them to death. “I don’t owe Mr. Ehodes a thing in the world. . . Mr. Ehodes worked me to death, me and my wife and my child, and would never give me a settlement or pay me what he owed me, and I had to choose between staying there and me and my wife and my child starving, and that’s the reason why I left him. If he had paid me what he owed me, I would have been staying there right now with him making cotton and com.” These statements were denied by Ehodes, and he testified: “He [the defendant] asked me once or twice for a settlement; he knew his cotton was at Augusta, and he told me not to sell it; and when I sold it I placed it to his account and he got credit for it. When I credited his last year’s account with the proceeds from the sale of cotton it left him nothing. . . He had no right to be afraid of me. I had never hurt him. He was a good worker and always made good crops. I went to Mr. Smith, the man whom he went to after leaving me, and I told Mr. Smith that if he would pay me the $48 that the negro owed me I would not prosecute him; I did not want to prosecute him; I only wanted to collect what the negro owed me. I never gave him any statement for his work of 1908. When his cotton was sold in February, 1909, it took all to balance his indebtedness for 1908.” Cited by counsel, besides the cases cited in the foregoing decision, Mosely v. State, 2 Ga. App. 191.</p>

<p>Indictment for arson, from Warren superior court — Judge Meadow. June 21, 1909.</p> <p>The house burned was a dwelling on a farm, occupied by Amos Hattaway and his family. The fire was discovered between four and five o’clock Sunday morning, March 1. A twelve-year-old negro boy, who slept in the house, ran into Hattaway’s room and told him the house was afire. Hattaway holloed and began moving out his things, and the defendant — -a negro who lived on the place and at a short distance from the burning house — came to him and assisted in the moving. Hattaway testified: “The house caught first in the corner of the cook-room. There was a shelf in the corner, with some pans and dishes, and I had my kerosene nan sitting in there. I had had it filled up with a gallon of kerosene. I did not hear any explosion that night; if there had been one I suppose I would have heard it; I was right there. I saw the can .after the house got burned up; it was like it always was, only the spout had melted off. There was one door to the room, which led outside; it was pulled to, and there was a catch on it; a person could open that door from the outside. This defendant knew the kerosene was there; he was in there every day or two, and could see it in there; I always kept it in there.” The oil can was empty when found; and a druggist and others testified that in their opinion it would have exploded if the oil had not been- poured out before the fire. Hattaway testified further: “The night previous to this burning there was no fire in that room; there hadn’t been any fire in that room since Saturday at dinner. My wife and I were the last ones in the room; we were in there that evening, about sundown; . . the lamp was taken away from there.” Tracks corresponding to a new pair of shoes worn by the defendant, in'size, shape, and certain peculiarities, such as a seam and letters on the soles, and leading in the direction of his house, were discovered in a newly plowed field near the burned house on the day of the fire. The ground between the field and the burned house — a space of about twenty or thirty feet— was hard. The tracks were traced to a fence which separated the field from a road. The defendant at first denied that the tracks were made by him, but afterwards stated that he made them after he had been assisting Mr. Hattaway at the time of the burning. According to the evidence, he gave conflicting explanations of the cause of his going across the field. • J. T. Norris, a son of the owner of the premises, testified that in the jail he said to the defendant, “Lawrence, it is the opinion of the public that you burned the house, and that there was somebody else with you in it. You tell the truth about this thing, and if it is true I will see if I can’t get you out of here and let you leave the country.” The witness asked him if anjrbody else was in with him in the burning of the house; and he said “No.” This witness testified that he had beaten the defendant with a buggy whip for riding a mule which he had refused to let the defendant ride. Hattaway testified that he supposed the relations between himself and the defendant “had been rather mixed up since about the middle of June,” that they had a dispute while plowing together, and he struck the defendant. There was no testimony as to any subsequent threats or exhibition of ill feeling on the part of the defendant. In his statement to the jury he denied that he knew anything about the cause of the fire. He stated that the tracks were made while he was going to meet a girl who was bringing his hat; and said, “The reason I didn’t say anything to Mr. Norris, I was just scared of him.”</p> <p>Citations by counsel: 6 Ga. App, 105; Ga. B. 43/256; 57/482: 103/430; 109/516; 111/139; 118/320; 119/118; 120/499, 503; 125/741.</p>

<p>Indictmeift for burglary, from Bibb superior court — Judge Whipple. June 18, 1909.</p>

<p>Accusation of sale of liquor, from city court of Abbeville— Judge Nicholson. May 15, 1909.</p>

<p>1. The judge of the superior court, upon the hearing of a certiorari brought to review the proceedings had in a criminal action in an inferior judicatory, may in his discretion change the sentence imposed in the lower court.</p> <p>2. Where, in the hearing of a case in the police court of the City of Atlanta, the recorder ascertains that there is probable cause to suspect that the accused has committed a State offense, he may, in addition to punishing him for the violation of the municipal ordinance, bind' him over to the proper State court for a further investigation; and the trial as to the municipal ordinance is not vitiated by reason of the fact that the hearing partakes also somewhat of the nature of the preliminary investigation had by magistrates in criminal inquests as to State offenses.</p> <p>'3. The evidence authorized the conviction in the recorder’s court. The reformation of the sentence by the judge of the superior court has cured the other errors complained of.</p> <p>Russell, J., dissenting. I concur in the rulings contained in the first two headnotes, but am of the opinion the certiorari should have been sustained because the evidence was insufficient in law to authorize conviction.</p>

<p>Accusation of sale of liquor, from city court of Fitzgerald— Judge Jay. July 1, 1909.</p>

<p>Indictment for burglarjr, from Irwin superior court — Judge Whipple. July 8, 1909.</p>

<p>Indictment for larceny after trust, from Sumter superior court— Judge Littlejohn. July 6, 1909.</p>

<p>Indictment for assault with, intent to murder, from Sumter superior court — Judge Littlejohn. July 6, 1909.</p>

<p>Under the ruling of the Supreme Court in Pearson v. Bass, 132 Ga. 117 (63 S. B. 798), so much of the statute as penalizes the disturbance of the relations existing between employer and employee, otherwise than is contained in the caption of the act of 1901 (Acts 1901, p. 63) as amended by the act of 1903 (Acts 1903, p. 91), ’ . ..nconstitutional. As held in Orr v. Eardm, 4 Ga. App. 382 (61 S. E. 518), the acts above cited are to be strictly construed. There being no evidence tending to show that the defendant entered into any specific contractual relation with the employee of the prosecutor, the evidence was insufficient to support a conviction, and a new trial should' have been granted.</p>

<p>Accusation of disturbing divine worship, from the city court of Montieello — Judge Thurman. July 28, 1909.</p>

<p>Conviction of manslaughter, from Johnson superior court— 'Judge Rawlings. July 16, 1909.</p>

<p>Certiorari, from Pike superior court — Judge Reagan. June 28, 1909.’</p>

<p>The charge of the court on the subject of impeachment was somewhat inaccurate, but, under the decision in MeOollum v. State, 119 Ga. 308 (2), 311 (46 S. E. 413, 100 Am. St. R. 171), the inaccuracy is not such material error as to require a reversal.</p>

<p>Accusation of' misdemeanor, from city court of Fitzgerald— Judge Jay. July 29, 1909.</p>

<p>Accusation of misdemeanor, from city court of Waynesboro— Judge Davis. July 22, 1909.</p>

<p>Accusation of gaming, from city court of Monroe — Judge Dean. August 12, 1909.</p>

<p>1. The trial judge should not, in the hearing of the jury, make any remark tending to compliment or disparage a witness. It is reversible error for him to state facts of his own knowledge, or as of his own knowledge, tending to exculpate the witness from an offense charged against him, or tending to show that there were mitigating circumstances connected with the offense.</p> <p>2. The error referred to in the foregoing headnote falls within the purview of section 1032 of the Penal Code (Civil Code, §4334), under which the court has no discretion as to the grant of a new trial; the language is mandatory: “It is error for the judge of the superior court, in any case, during its progress, or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved, or as to the guilt of the accused; and a violation of the provisions of this section shall be held by the Supreme Court to be error, and' the decision in such case reversed, and a new trial granted with such directions as the Supreme Court may lawfully give.”</p>

<p>Accusation of larceny from house, from city court of Blakely— Judge Jordan. August 27, 1909.</p>

<p>Certiorari, from Fulton superior court — Judge Ellis. May 27, 1909.</p>

<p>As to the suspension of the statute of limitations, the cases are controlled by Watkins v. State, 68 Ga. 832; and, as to other points, by Frost v. State, 120 Ga. 3-11 (47 S. E. 901), and Dozier v. State, 107 Ga. 708 (33 S. E. 418).</p>

<p>Indictment for keeping liquor, etc., from Jeff Davis superior court — Judge Parker. August 21, 1909.</p>

<p>Indictment for misdemeanor, from Tattnall superior court — ■ Judge Morgan presiding. August 11, 1909.</p>

<p>Indictment for assault with intent to murder, from Appling superior court — Judge Parker.- August 21, 1909.</p>

<p>1. The superior court is without jurisdiction to entertain an appeal from the judgment of the county court upon a proceeding to evict a tenant holding over, where the possession of the premises in dispute is the only issue involved, and no money judgment is contemplated. Errors alleged to have been committed by the county court in such a ease must be reviewed by certiorari.</p> <p>2. Upon an appeal from the county court' to the superior court, the jurisdiction of the superior court is identical with that of the county court; and if the county court was originally without jurisdiction to try the cause, the superior court, upon an appeal, would likewise be without jurisdiction. The Supreme Court having heretofore decided in this case (127 Ga. 390) that the county court had jurisdiction to hear and determine issues formed by the counter-affidavit to the warrant issued against the alleged tenant holding over, that decision became the law of the ease, irrespective of the ruling'in Stephenson v. Warren, 119 Ga. 504 (46 S. E. 647).</p>

<p>Complaint, from city court of Blakely — -Judge Jordan. January 25, 1909.</p>

<p>1. While one may pursue any number of concurrent and consistent remedies, he will not be permitted, after the choice of one of two or more inconsistent remedies which he might originally have pursued at his option, to change his base and adopt a course wholly inconsistent with the remedy which he first selected.</p> <p>2. Where one has the option either to affirm or to disaffirm a sale, and thereby fix the relative status of the parties to the contract, and exercises this option, he is bound by his election, regardless of the effect of his election upon the rights of others, and regardless of the knowledge or conduct of other parties in interest.</p> <p>(a) The foreclosure of a mortgage upon personal property as the property of the mortgagor is such a disaffirmance ■ of title by the mortgagee as waives the assertion of title, although the mortgage may he only a part • of a contract which also contains a reservation of title, and although the instrument in question might either be foreclosed as a mortgage or afford the basis of an assertion of title in the payee by trover.</p> <p>3. Waiver and estoppel are not synonymous terms. Waiver belongs, in a sense, to the family of estoppel; and yet estoppel in pais has connections that are no kin to waiver. Waiver is voluntary and intentional, estoppel in pais may arise from an involuntary and unintentional act; estoppel results from an act which operates to the injury of the other party, there may be a waiver although the opposite party is beneficially effected. A waiver by election results where a choice is exercised between inconsistent remedies (as where one action is founded on affirmance and the other upon disaffirmance of a voidable sale of the property), and' in such a case any decisive act of affirmance or disaffirmance, done with knowledge of the facts, determines the legal right of the parties once for all. Estoppel may arise even between consistent remedies, but it depends rather upon what a party caused his adversary to do; while waiver depends upon what one himself intends to do.</p>

<p>Complaint, from city court of Fitzgerald — Judge Jay. January 27, 1909.</p>

<p>Attachment, from city court of Atlanta — Judge R.eid. December 12, 1908.</p>

<p>The statute requires not only that the trial judge, on timely request of counsel, shall reduce his charge to writing and read it to the jury, but also that as soon as the charge has been delivered he shall give it to the clerk to be filed; and a failure to do so will be reversible error, unless the evidence demanded the verdict as rendered.</p>

<p>■“Where the duty of inspection has been delegated to the employee, such employee, generally speaking, assumes the risk of all dangers incident to making the inspection.”</p>

<p>Action on contract, from city court of Macon — Judge Hodges. December 14, 1908.</p>

<p>Complaint, from city court of Dublin — ■ Judge Jordan. February 6, 1909.</p>

<p>Appeal, from Bulloch superior court — Judge Rawlings. October 28, 1908.</p>

<p>Action for damages, from city court of Savannah — Judge Freeman. January 18, 1909.</p>

Complaint, from city court of Atlanta — Judge Eeid. April 1, 1909. The Southern Seating & Cabinet Company brought suit against J. Saul and Nathan Wolfe on three promissory notes, all of the same tenor, except that one was due two months, one four months, and one six months after date. It will be sufficient to copy the material parts of only one of them, viz.: “$250.00. Atlanta, Ga., Aug. 13, 1907.

<p>1. Where a contract prescribes conditions precedent to a party’s right to-set up a cause of action or defense, and the terms are reasonable, the opposite party may usually successfully plead a failure to comply with the conditions, as a reason for the court’s refusal to entertain the action or defense. But forfeiture of rights is not favored, and the courts-will readily seize upon circumstances arising in the subsequent conduct or transactions of the parties and imply a waiver, in order to prevent a forfeiture because of non-compliance with formal prerequisites.</p> <p>2. Ordinarily, when a purchaser renews a note or other obligation given for the purchase-price of property, and knows at the time of the renewal that the property is defective, he can not thereafter be heard to complain of the defects as a defense. The rule is subject to exceptions, and is not applicable where a renewal note is given under such circumstances as to indicate that it was given and taken with a contrary understanding.</p> <p>3. The evidence did not demand a finding in the plaintiff’s favor for the full amount. The court therefore erred in directing the verdict, which was to that effect.</p>

Action for penalty, from city court of Douglas — Judge Roan. February 26, 1909. On February 25, 1908, Pennington & Evans filed this suit in the city court of Douglas.

<p>Action for damages; from city court of Atlanta — Judge Reid-April 14, 1909.</p>

<p>Appeal, from Hall superior court — Judge Kimsey. June 16, 1909.</p>

<p>Action for damages, from city .court of Mount Yernon — Judge Griffin presiding. May 26, 1909.</p>

<p>Complaint, from city court of Douglas — Judge Roan. May 17, 1909.</p>

<p>Certiorari, from Gwinnett superior court — Judge Brand. June 7, 1909.</p>

<p>Conviction of manslaughter, from Wilkes superior court— Judge Meadow. June 28, 1909.</p>