Volume 7 — Georgia Appellate Reports

<p>Indictment for assault and battery; from Decatur superior court —Judge Park. July 24, 1909.</p>

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

<p>Indictment for gaming; from city court of Covington' — Judge Whaley. July 29, 1909.</p>

<p>Conviction of manslaughter; from Berrien superior court— Judge Mitchell. July 19, 1909.</p>

<p>Accusation of sale of liquor; from city court of Monticello— Judge Thurman. July 28, 1909.</p>

<p>1. In a criminal ease, -where an exception is relied upon to prevent the bar of the statute of limitations, it must be alleged and proved. Such proof is inadmissible unless the exception sought to be proved is alleged.</p> <p>2. Where the exception necessary to. relieve the bar of the statute of limitations is not alleged in the indictment or other accusation, it is to be presumed that the day upon which the offense is therein alleged to have been committed is immaterial, and that the prosecution is not barred. Consequently, any evidence that the offense charged was committed upon . such a day as that a prosecution therefor would be barred is irrelevant and inadmissible, and should be excluded upon proper timely objection thereto.</p> <p>3. A uefendant in a criminal case may move in arrest of judgment, upon his conviction, where it appears from the indictment that the alleged offense is barred by the statute of limitations, and no exception to remove the bar is stated in the indictment. Still, this right is not exclusive of the right of the defendant, at his option, to move for a new trial upon the ground that his conviction was the result of evidence illegally admitted over his objection.</p>

<p>Accusation of sale of liquor; from city court of Monticello— Judge Thurman. July 28, 1909.</p>

<p>1. Section 1032 of the Penal Code, which forbids the judge to express any opinion as to facts, relates only to statements made during the progress of the case or in the charge to the jury. The section is not applicable to remarks made by the judge prior to the trial, though made in open court and in the presence of persons who afterwards served on the jury in the case.</p> <p>2. The evidence supports the verdict.</p> <p>3. The grounds of the motion for a new trial, other than those dealt with, above, are not in legal form, and, therefore, can not be considered.</p>

<p>Indictment for gaming; from Hall superior court — Judge Kimsey. July 31, 1909.</p>

<p>Conviction of manslaughter; from Crisp superior court — Judge Eelton presiding. August 9, 1909.</p>

<p>Indictment for sale of liquor; from Jeff Davis superior court:— Judge Parker. August 9, 1909.</p>

<p>1. The evidence authorized the verdict.</p> <p>2. No matter what the number of witnesses introduced for the purpose,, nor the method employed in attempting to impeach a witness, the credibility of a witness whose impeachment is sought is, after all, a matter for the exclusive determination of the jury.</p> <p>3. The fact that a witness in a criminal ease is to be paid a reward in the event of the conviction of the defendant may affect the credibility of his testimony, but does not render the witness incompetent to testify. The pecuniary interest of a paid detective may discredit him, but does. ■ not incapacitate him as a witness.</p> <p>4. Articles taken from the dwelling of one accused of crime, which may tend to connect him with its commission, may properly be submitted to the jury trying the ease, as explanatory of their possession and use by the defendant, as well as for the purpose of enabling the jury to determine by physical examination whether the identification of the articles is satisfactory.</p>

<p>1. Failure to object to evidence at tlie time it is offered will be treated, after verdict, as a waiver of it's inadmissibility. Davis v. State, 4 Ga. App. 318 (61 S. E. 404).</p> <p>2. The evidence authorized' the verdict, and there was no error in overruling the motion for a new trial.</p>

<p>1. Where the competency of a child who is offered as a witness is questioned on. the ground that the proposed witness is too young to understand the nature and sanctity of an oath, the better practice is for the court to make, or cause to be made, a preliminary examination of the child, for the purpose of testing the child’s competency; but the failure of the court to do so will not be reversible error, where it appears that the witness was fully examined on this point in the presence of the jury during examination on the main issue. In this- cáse the court did not commit manifest error in holding the child competent and in submitting her evidence to the jury.</p> <p>2. On a trial for the crime of assault with intent to rape, the alleged victim being a girl eight years old', the mother of the girl was allowed to testify, over objection, that another daughter, several years older, had complained to her husband and herself that the defendant had on a previous occasion “ravished her while she was with him in a buggy on the way home from church.” Held, error demanding another trial.</p>

<p>Indictment for drunkenness on highway; from city court of Hewnan — Judge Ereeman. August 30, 1909.</p>

<p>Indictment for burglary; from Terrell superior court — Judge Worrill. August 30, 1909.</p>

<p>Accusation of manufacturing liquor; from city court of Oglethorpe — Judge Greer. July 23, 1909.</p>

<p>1. Under the provisions of the Penal Code, § 19, one charged with a mere assault can not lawfully be convicted when all the evidence shows a completed battery; but on the trial of one charged with riot, the fact that the evidence discloses that the rioters, charged with an unlawful assault by throwing rocks, actually succeeded in striking her whom they attempted to injure, does not create-such a variance between the allegations and' the proof as to entitle the defendants to a verdict of acquittal. Whether the defendants committed an assault or a battery is immaterial, where either is alleged as the mere method in which an alleged riot was committed.</p> <p>2. An indictment charging that eight named defendants “did then and there, acting with a common intent, make an unlawful assault on one Janie Jones, and did then and there attempt a personal injury on said Janie Jones by throwing certain rocks at said Janie Jones,” sufficiently described the offense of riot as defined in the Penal Code, §354.</p>

<p>Accusation of misdemeanor; from city court of Blakely — Judge' Jordan. September 1, 1909.</p>

<p>Accusation of assault and battery, from city court of Cordele — ■ Judge Strozier. September 7, 1909.</p>

<p>Certiorari; from Fulton superior court — Judge Ellis. September 16j 1909.</p>

<p>Certiorari; from Pulaski superior court — Judge Martin. September 1, 1909.</p>

<p>1. On the trial of a criminal ease the court received the verdict during the enforced absence of the defendant, who was incarcerated in the common jail of the county. The defendant in no manner waived either his own right to be present in person, or his right to have his counsel present when the verdict was rendered. Meld, that the verdict was a nullity; and a petition to the court setting forth the facts, upon which a rule was issued and served upon the solicitor representing the State, was appropriate legal procedure for the purpose of having the verdict set aside, and the court erred in dismissing the petition on demurrer.</p> <p>2. The defendant in a criminal case, whether felony or misdemeanor, has the right to be present in person and by his attorney during every stage of the trial, from the arraignment to the verdict; and this right can not be waived by the attorney, except by the express authority of the defendant.</p> <p>3. A verdict was received by the court in a criminal case in' the absence of the defendant, who was in jail at the time, and in the absence of the ' attorney for the defendant. Before receiving the verdict, the judge telephoned to the attorney, asking him whether he would waive his right to be present and have the jury called, and, in reply, the attorney stated that he did waive his right to be present, and directed the judge to receive the verdict. The attorney, when lie made the waiver, did not know of the absence of the defendant. Eeld, that this did not constitute a waiver of the defendant’s right to be present when the verdict was received, or of his right to have the jury polled.</p>

<p>Accusation of misdemeanor; from city court of Oglethorpe— Judge Greer. August 31, 1909.</p>

<p>1. The evidence was insufficient to show that the defendant had violated the law.</p> <p>2. In a prosecution for the fraudulent sale of mortgaged property, the place of sale fixes the venue.</p>

<p>A county commissioner charged with malpractice in office is entitled to he served with a copy of the indictment (in which the merits of the complaint are specifically set forth'), before the same is laid before the grand jury, and has the right to appear before the grand jury and be heard in his own defense before action is taken upon the accusation by that body.</p>

<p>1. It was not error to overrule the motion for a continuance. Although the defendant had other witnesses to the same fact that he expected to prove by the absent witness, he was not forced to trial at the term at which the accusation was filed; and it was shown that before the term at which the trial took place, the witness on account of whose absence the continuance was asked had. become inaccessible by reason of the fact that he was concealing himself to avoid arrest.</p> <p>2. In the absence of evidence to the contrary, it may be inferred that a liquor denominated by the seller as peach brandy, and for which payment was received as such, was brandy, and therefore an intoxicating liquor.</p>

<p>On an issue of non est factum, where the signer of a writing admits his signature thereto but insists that a material alteration has been made therein, the materiality of the alteration is a question for determination by the court in the first instance; but where the alteration may be prejudicial in its effect upon the complaining party, the' question as to whether an alteration was made after the instrument was signed should always be submitted to the jury; for if the jury find that the alteration was made, the plaintiff is obliged to establish his contract by evidence extrinsic; and for that reason the defendant becomes entitled to show, even by parol, what were the real terms of the contract before the alteration was made, or that the alteration was such as to destroy the contract; or that without the alteration no contract would have been created.</p>

<p>Action for damages; from city court of Fitzgerald — Judge Jay. November 37, 1909.</p>

<p>The counter-affidavit provided by § 4130 of the Civil Code may be filed upon the call of the case,at any term subsequent to the institution of the suit; but AA-liore, upon the call of a suit on a verified account in a justice’s court, the defendant announced ready without filing the counter-.affidavit provided by law, it Avas not error to repel testimony denying the justice and fairness of the plaintiff’s claim. It is discretionary with the justice’s court, where no counter-affidavit has been filed before the ■defendant has announced ready, whether the court will suspend the trial at that stage in order to enable the defendant to prepare a counter-affidavit for filing.</p>

<p>Conviction of involuntary manslaughter; 'from Whitfield superior court — Judge Fite. June 14, 1909,</p>

<p>Conviction of manslaughter; from Colquitt superior court— Judge Edwards. September 10, 1909.</p>

<p>Accusation of sale of liquor; from city court of Monticello— Judge Thurman. September 6, 1909.</p>

<p>Indictment for larceny; from Spalding superior court — Judge Reagan. September 13, 1909.</p>

<p>Where, in the rule nisi granted upon* an application for new trial, or in any order passed continuing the hearing upon a motion for new trial, there is no limitation of the period within which service of the rule nisi or other order should be perfected, such service as will give the opposite party a reasonable opportunity to prepare for the hearing upon the motion for new trial and to resist the same is sufficient service, within the terms of §5475 of the Civil Code.</p> <p>(a) Where no time is fixed within which service of the motion for new trial should be effected, such service may be perfected even after the hearing of the motion for new trial has been continued, if there be service upon the opposite party at such time before the date set for the final hearing as will enable the opposite party to prepare to resist the grant of the motion.</p> <p>(b) In the present case service of a copy three days prior to the date of the hearing was sufficient for that purpose.</p>

<p>“Twenty days from tlie rendition of the decision,” and not twenty days from the date of the adjournment of the term, is the period within which the hill of exceptions must he tendered in a criminal case.</p>

<p>Indictment for sale of liquor; from Cobb superior court — 'Judge Morris. October 6, 1909.</p>

<p>Indictment for seduction; from Forsyth superior court — Judge Morris. November 9, 1909.</p>

<p>Indictment for assault with intent to murder; from Gordon superior court — Judge Fite. September 28, 1909.</p>

<p>Accusation of sale of liquor; from city court of Albany — Judge Crosland. October 2, 1909.</p>

<p>Application for mandamus. ‘</p>

<p>The condition of the bond which is required to be given by one seeking a writ of certiorari to correct a judgment of the recorder’s court, or other police court, as prescribed by the act of 1902 (Acts 1902, p. 105), is for “the personal appearance of the defendant to abide the final order, judgment, or sentence” of the municipal'court, or of the superior court, in the case. A bond in which this condition, as to the appearance-of the defendant to abide the final order, judgment, or sentence of the municipal court, or of the superior court, in the ease, is qualified by adding the words, “in the event the certiorari applied for is refused or not sustained,” is not the bond required by the statute. The judgment dismissing tile certiorari in this case for this reason was proper.</p>

<p>Indictment for fraudulent insolvency of bank; from Ware superior court — Judge Park. April 28, 1909.</p>

<p>Indictment for burglary; from Jeff Davis superior court — Judge Parker. August 21, 1909.</p>

<p>Complaint from city court of Fitzgerald — Judge Jay. February 22, 1909.</p> <p>Harris sued Wilcox for $500 and interest. The court sustained a general demurrer and dismissed the petition; and error is assigned on this judgment. The petition in substance is as follows: On April 12, 1907, Harris made a contract with Wilcox to purchase capital stock of the Clark & Wilcox Company, or the Ras Wilcox Company, of the par value of $500, upon the express agreement of Wilcox that he •would purchase the stock back from Harris and pay him therefor $500, with interest at eight per cent, per annum from the date of the purchase, at any time after fifteen days’ notice that Harris desired to sell the stock. When this agreement was entered into, Harris turned over to Wilcox $500 as the full purchase-price of the stock, and Wilcox agreed that some time in the near future the stock should be issued and delivered to Harris. Harris did not wish to buy the stock, but was induced to do so solely by the agreement on the part of Wilcox. The contract was in part evidenced by a writing signed by Wilcox and delivered to Harris on April 12, 1907, as follows: “By this agreement signed by me this day, 12th day of April in the year 1907, 1 bind myself, my heirs, executors or administrators, to purchase from J. H. Harris, at any time he sees fit to sell after giving fifteen days’ notice, five hundred dollars ($500) worth of stock bought by said J. H. Harris this day from Clark Wilcox Company, or the Ras Wilcox Company, doing business in Fitzgerald, Georgia, and I further agree to pay not less than eight per cent, interest in addition to the $500 from the time said stock was bought by said J. H. Harris until date of sale. B. E. Wilcox.” When the contract was made, Wilcox was largely interested in the Clark & Wilcox Company and was desirous of selling to other persons some of the capital stock of the company, and for this reason he induced Harris to purchase the $500 worth of stock on the terms set out in the contract. Harris alleges, that no stock of the Clark & Wilcox Company, or of the Ras Wilcox Company has ever been delivered or tendered to him by Wilcox, and he is advised and believes that no stock of the company has ever been issued to him; and for this reason petitioner has never exercised or attempted to exercise any of the rights of a stockholder. On October 14, 1907, and at various times síneé that date, petitioner gave to Wilcox the notice prescribed in the written contract, and has .at times since that date insisted that Wilcox should repay him the $500, with interest thereon, petitioner being willing and offering to cancel or surrender any and all right to have the said stock issued or delivered to him, or to sell or transfer the stock to Wilcox in the event it had been issued to petitioner, and he is now ready to have the stock cancelled and to transfer the same to Wilcox. For the foregoing reasons petitioner alleges that the defendant Wilcox has become indebted to him in the sum of $500, with interest thereon at 8 per cent, per annum from April 12, 1907; and he prays judgment for this amount.</p>

<p>Levy and .claim; from city court of Sylvester — Judge Williamson. January 29, 1909.</p>

<p>Complaint; from city court of Atlanta — -Judge Reid. January 18, 1909.</p>

<p>1. Where a judge physically affixed his signature to the certificate to a bill of exceptions on March 8, and thereafter held the same in his exclusive possession until March 19, without fault on the part of counsel for the plaintiff in error, and published his certificate by delivering the bill of exceptions to counsel for the plaintiff in error, together with a certificate as to the facts, held, that the bill of exceptions was in fact certified on the latter day; that the signing of the bill of exceptions consisted of more than the mere physical annexing of the signature.</p> <p>2. None of the assignments of error require the grant of a new trial.</p>

<p>Complaint; from city court of Sylvester — Judge Williamson. March 27, 1909.</p>

<p>Appeal; from Glascock superior court — Judge Meadow. April 21, 1909.</p>

<p>Certiorari; from Mitchell superior court — Judge Park. April 19, 1909.</p>

<p>Breach of guaranty; from city court of Atlanta — Judge Reid. April 12, 1909.</p>

<p>Complaint; from city court of Nashville — Judge Peeples. May 3, 1909.</p>

<p>A rented land from B for one year. Bart of the land was a pasture for A’s stock. A was put id possession of the land and pasture. Relying in good faith on the contract, A plowed and fenced the land, sowed grain, repaired the house and barn, and made all preparations to perform his part of the contract. After A had been in possession for five months, cultivating the land and using the pasture, B rented the pasture to another person, and notified A that he could no longer use the pasture, and that if A put his stock in it, he would kill them. B also threatened personal violence against A if he attempted to use the pasture. Held, that B’s conduct in thus taking away from A a part of the rented premises and interfering with his use and enjoyment of a part of the same amounted to an eviction in law. Held further, that A was entitled to treat B’s breach of his contract as discharging him from any further performance on his part, and to sue B on a .quantum meruit, and recover the value of his labor in plowing, fencing, cultivating, and improving B’s premises.</p>

Action for damages; from city conrt of Thomasville — Judge Hammond. May 22, 1909.

<p>Action on contract; from city court of Wrightsville — Judge Kent. 'May 11, 1909.</p> <p>The National Furniture Company entered into the following contract with the Outcault Advertising Company: “November 18th, 1907. To the Outcault Advertising Company, Chicago, 111. Gentlemen: — For one year beginning December first ship us by express, at our expense, your “Ad Service” consisting of One Little House Maid for each week. Equalize freight and express. We agree to pay you net cash on receipt at the rate of $2.00 per week, we to have the exclusive right to use same in our city only, and to hold said type and cuts subject to your order when this contract expires. Also subject to above conditions. One font Little House Maid type (10 lbs. in font) once only, at $4 per font. Salesmen a/re not authorized to alter this contract by verbal agreement ” Hnder this contract the Outcault Advertising Company shipped the advertising service to the National Furniture Company, and ■the National Furniture Company accepted the service and used it for a period of three months; when it shipped the advertising service articles back to the Outcault Advertising Company and refused to pay anything for the same; whereupon the Outcault Advertising Company, having duly performed its part of the contract, entered suit in the city court of Wrightsville for the full amount due by the terms of the contract, to wit, $108 and interest. The National Furniture Company filed a defense, alleging that the contract was procured by the fraudulent representation of the agent of the plaintiff, and that there was a total failure of consideration. The judge of the court, without the intervention of a jury, after hearing the evidence, rendered a judgment in favor of the Outcault Advertising Company for the principal sum of $30, with interest thereon, as payment for the time that the advertising service was actually used by the defendant. To this judgment the plaintiff excepted, on the ground that there was no evidence to support it, and specifically because the court erred in allowing the manager of the defendant company to testify, over the objection of the plaintiff, that he signed the contract on the representation of the plaintiff’s salesman that it “would result in great financial returns,” and that “he had made arrangements with the newspapers of Wrightsville to publish this advertising matter at two thirds the rate of their regular advertising.” The objection to this testimony urged at the time was that it was an effort to vary, alter, and contradict the terms of a written contract, which expressly provided that salesmen were not authorized to alter this contract by any verbal agreement.</p> <p>The evidence in behalf of the plaintiff proved the contract and performance; that it had refused to receive back the advertising outfit from the defendant, and had demanded of the defendant the full contract price therefor, which it refused to pay. The manager of the defendant company testified as follows: “I received all of the order from the advertising company; but instead of shipping it weekly, they sent it all at once. I know that it did not pay, because my business fell off during the time I used it. I did not keep track of.all-my advertising to see whether it paid or not, but I know that this service did not pay. I have never paid them anything. I used this service about three months before I sent it back.”</p>

<p>Complaint; from city court of Americus — Judge Crisp. May 8, 1909.</p>

<p>Complaint; from city court of Springfield — Judge Smith. May 17, 1910.</p>

<p>1. The plaintiff pleaded and proved an actionable injury under the “employers’ liability law” of the State of Alabama.</p> <p>2. When a tort occurs in another State and' suit is brought on account of it in the courts of this State, the lex loci delicti governs as to all substantive matters, the lex fori as to all matters affecting only the remedy, such as rules of evidence, methods of shifting the burden of proof, and the presumptions arising from given states of facts.</p> <p>3. The Georgia rule that a railway employee suing the company for the negligence of a fellow servant must show that he himself was free from fault is a rule of substantive law, and is without applicability where a railway employee sues the company for an injury received in another State, where no such doctrine prevails.</p> <p>4. Where one party offers a section of the code of another State as proof of the law of that State on a given subject, he is not required to introduce all cognate sections. If there are other sections applicable, the opposite party may offer them, but can not complain that his adversary has not done so.</p> <p>5. There was no error in refusing a new trial.</p>

<p>1 A warehouseman or depository for hire is, when sued for the loss of the goods or for failure to deliver them on demand, under the burden of showing; that he used ordinary eare and diligence to protect the property, and that the loss of them nevertheless occurred. Where the case presents the issue whether the bailee did or did not use common prudence in protecting the property, proof of any fact tending to show that such a state of conditions existed as to put the bailee under the duty of exercising greater cautionary activity than he displayed is admissible in behalf of the bailor.</p> <p>2. When such a state of facts exists that one person has the right to use the name of another as nominal plaintiff, suing for the former’s use, admissions in the pleadings (prosecuted solely for the benefit of the usee) are not ordinarily admissible in evidence against the nominal plaintiff in another action between the latter and a third 'pprson.</p>

<p>1. An allegation that the goods were received “in good order,” or “as in good order,” is essential to an action against a carrier, upon the statutory liability imposed by section 2298 of the Civil Code; hence, in a suit against a carrier for the loss of the goods, where no such allegation is made, it will be presumed that the action is based upon the carrier’s common-law liability, and not upon the statute.</p> <p>2. Where a carrier which did not issue the bill of lading notifies the consignee that the shipment has arrived, collects the freight, and attempts to make delivery of the shipment, it will be presumed that it is the last connecting carrier, and that it received the goods in good order; but these presumptions are rebuttable.</p> <p>3. Concealment by the shipper of the nature of the goods contained in the shipment will ordinarily discharge the carrier from liability. A case of concealment is not proved, howe.ver, merely by showing that the initial carrier’s agent, in issuing the bill of lading, did not, in describing the articles, give a full and complete description.</p>

<p>Where a father hires liis minor son to an employer to do certain work, and the employer, without the father’s consent, puts the son to a different and more dangerous employment, and the latter is injured, the father has a cause of action against the employer for the recovery of such diminution in the value of the child’s prospective services, between the date of the injury and the date of his attaining his majority, as the injury may have occasioned.</p>

<p>Certiorari; Pulton superior court — Judge Pendleton. July 7, 1909.</p>

<p>Affidavit of illegality; from city court of Waycross — Judge Myers. July 8, 1909.</p>

<p>X. An arbitrator will not be permitted, as a witness, to impeach Ms award.</p> <p>2. The evidence introduced before arbitrators is required to be filed with exceptions to the award, and failure to file a brief of the evidence with the exceptions, where an investigation of the evidence is necessary to the consideration of the exceptions, renders proper a dismissal of the exceptions. Where no brief of the evidence is filed, exceptions dependent upon the evidence may properly be dismissed.</p> <p>3. This court will not undertake to decide questions not raised in the lower court, and which are presented for th.e first time in this court.</p>

<p>Certiorari; from Pike superior court — Judge Reagan. June 21, 1909.</p>

<p>Complaint; from city court of Sylvester — Judge Park. June 19, 1909.</p>

<p>Action for damages; from city court of Statesboro — Judge Brannen. January 8, 1909.</p>

<p>1. The plaintiff proved his ease as laid, and the court erred in awarding a nonsuit.</p> <p>2. When the seller of personal property on credit takes notes payable in instalments for the purchase-price, and retains the legal title as security for his debt, he may rescind the conditional sale and recover the property in trover (doing equity as to any payments made), as soon as any part of the purchase-price becomes due and remains unpaid.</p>

<p>Money rule; from city court of Ashburn — Judge Hawkins. July 19, 1909.</p>

<p>Plaintiff did not make out a ease of liability against defendant.</p>

<p>Accusation of sale of liquor; from city court of Elberton— Judge Tutt. September 10, 1909.</p>

<p>Certiorari; from Fulton superior court — Judge Bell. September 22, 1909.</p>

<p>Habeas corpus; from city court of Wrightsville — Judge Kent. September 15, 1909.</p>

<p>Accusation of cheating and swindling; from city court of Sylvester — Judge Williamson. October 9, 1909.</p>

<p>Indictment for arson; from Milton superior court — Judge Morris. October 2, 1909.</p>

<p>1. Generally the word liquor implies intoxicating liquor, and, therefore, proof that a defendant sold “liquor” is sufficient to show, in the absence of adverse testimony, that he sold intoxicating liquor. Especially is this true where the proof further shows that it looked like rye whisky.</p> <p>2. The exceptions to testimony are controlled by the decisions of this court-in Taylor v. State, 5 Ga. App. 237 (62 S. E. 1048), and Douglas v. State, 6 Ga. App. 157 (64 S. E. 490), and by the provisions of Penal Code, §§997, 998.</p> <p>3. The evidence fully authorizes the verdict.</p>

<p>Accusation of sale of liquor; from city court of Sandersville — ■ Judge Jordan. October 14, 1909.</p>

<p>Accusation of gaming; from city court of Carrollton — Judge Beall. October 23, 1909.</p>

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

<p>Accusation of sale of liquor; from city court of Griffin — Judge Elynt. October 8, 1909.</p>

<p>Indictment for assault; from -Haralson superior court — Judge Edwards. July 28, 1909.</p>

<p>Petition for certiorari; from Berrien superior court — Judge Mitcliell. January 16, 1909.</p>

<p>Where, upon a rule against a sheriff, he files an answer, and no traverse is filed, the statements of fact contained in the answer are conclusive as to the truth of the case, and no evidence can be'considered, either to add to or subtract from them.</p>

<p>Complaint; from city court of Ployd county — Judge Hamilton. March 3, 1909.</p>

<p>Trover; from city court of Blakely — Judge Jordan. February 27, 1909.</p>

<p>Action on bond; from city court of Americus- — ■ Judge Crisp. February 8, 1909.</p> <p>The action was against C. W. Murray, as principal, and the United States Fidelity and Guaranty Company, as surety, on bonds executed by them to the Mayor and City Council of Americus for the faithful discharge of the principal’s duties as superintendent of the city’s waterworks, one of which duties, as prescribed by an ordinance of the city, was to receive and collect all water rents or other moneys due -the city from consumers, and turn them over to the clerk and treasurer of the city, and make a report thereof to the mayor and city council. The petition alleged, in paragraph 6, that Murray, as superintendent of-the waterworks for the year beginning January 1, 1905, failed to turn over to the clerk and treasurer of the city all of the proceeds arising from water rents which he collected, as it was his duty to do, and failed to account to the plaintiff for all the money received by him' as water rents; that from January 1, 1905, to June 30, 1905, he collected from water rents $511.96 in excess of the amount paid over by him to the treasurer of the city. A similar allegation was made as to subsequent water rents, and it was alleged that Murray had accordingly failed to account for the sum stated. Paragraph 7, after alleging that specified amounts collected from named persons on certain dates were never entered on the books of Murray’s office, and never accounted for, alleged that between specified dates in 1907 he collected from water rents specified sums in excess of the amounts deposited by him with the clerk and treasurer of the city, and failed to account for the sums so collected. The same items appeared in an exhibit attached to the petition. The defendants demurred, on the grounds, that, the petition failed to set up a cause of action; that paragraph 6 was. too vague and indefinite, and did not show the date or from whom any particular amount was collected, or what amounts were collected, or what amounts turned over to the proper authority, or what amounts were not accounted for; and that paragraph 7 and the exhibit were too vague and indefinite, for like reasons. The demurrer was overruled. The case was referred to an auditor, who made a report containing numerous' findings of fact and of law, and giving judgment against the defendants for a ■stated sum; to which report exceptions were filed by the defendants. They moved also to recommit the case to the auditor, on the ground that his report was too vague and indefinite. This motion was overruled, and the judge (who by consent heard the case without a jury) sustained the findings of the auditor, and rendered judgment against the defendants thereon. The defendants excepted to this judgment and to each of the previous rulings stated. The point is made, in the brief of counsel for the defendant in error, that the motion to recommit was too late, because made more than twenty days after the filing of the auditor’s original report, though made in less than twenty days after the filing of his supplemental report by which a brief of the documentary evidence was added to the original report.</p>

<p>.An instrument which appears on its face to be an absolute bill of sale to> personal property, but which does not contain a defeasance clause, and which the evidence shows was not accompanied by an actual delivery of the property into the possession of the vendee, will be treated as an equitable mortgage conveying the legal title. The holder of such an instrument, where the equitable title in such property has been extinguished by failure of the maker to pay the debt for which the mortgage was given as security, is entitled to bring an action of trover to recover possession of the property.</p>

Complaint; from city court of Dublin — -Judge Hawkins. March 12, 1909. Carter & Martin, a firm composed of H. C. Carter and J. W. Martin, brought suit upon an open account for $4,272.94 against J. W. Carter. The defense was payment. At the conclusion of the plaintiffs evidence the court granted a nonsuit; and this judgment is the error assigned.

<p>Complaint; from city court of Atlanta — Judge Reid. March 12, 1909.</p>

<p>Illegality; from city court of Douglas — Judge Roan. May 7, 1909.</p>

<p>Complaint from city court of Miller county — Judge Bush. May 7, 1909.</p>

<p>Levy and claim; from city court of Dublin — Judge Griffin presiding. April 15, 1909.</p>

<p>1. The provision of the ■ Political Code, § 603, making counties primarily . liable for injuries caused by reason of any defective bridges, whether erected by contractors or by the county authorities, is not applicable to a bridge erected over a watercourse which divides one county from another. To bridges of the latter class §§ 367 and 371 of the Political Code are applicable; and liability attaches only in accordance with §623 of that code, i. e., upon failure of the county to take a sufficient bond from the contractor.</p> <p>2. The eastern bank of Little river above the junction of the Withlacooehee river is the boundary line between Brooks and Lowndes counties. The entire stream lies in Brooks county. Nevertheless Little river is to be regarded as a watercourse dividing the two counties, within the purview of the Political Code, § 367 et seq.</p>

Complaint; from city court of Dublin- — -Judge Jordan presiding. May 14, 1909. William Bales sued the Southland Lumber Company on an open account. The defendant filed a plea of the general issue. The jury found a verdict in favor of the plaintiff, and the defendant’s motion for a new trial was overruled.

<p>Trover; from city court of Moultrie — Judge McKenzie. May 14, 1909.</p>

<p>Certiorari; from Richmond superior court — Judge Hammond. May 15, 1909.</p>

<p>Action for damages; from city court of Bichmond county— Judge Eve. July 21, 1909.</p>

<p>Action on bond — appeal; from Eulton superior court — ■ Judge Ellis. July 2, 1909.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. July 12, 1909.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. July 13, 1909.</p>

<p>Action for damages; from city court of Savannah — Judge Freeman. June 36, 1909.</p>

<p>Action for damages — appeal; from Terrell superior court — ■ Judge Worrill. August 3, 1909.</p>

<p>The plaintiff in error not having shown requisite diligence in the prosecution of his motion for new trial and the presentation of his brief of evidence for approval, the trial judge did not err in dismissing the motion.</p>

<p>1. Both, tlie legal and tlie equitable title to a promissory obligation payable to R., “executor of” a'named estate, are prima facie in R. individually, but parol evidence is admissible to show that the real interest is in the estate represented by him, wherever it is competent, under the form of action before the court, to assert an equitable title.</p> <p>2. Where the executor of an estate lends money belonging to the estate, but takes notes therefor payable to himself, using such language as to place the legal interest in the obligation in himself personally, and he dies, his successor in the administration of the estate can not sue at .law upon the obligation, but the suit should be instituted in the name of the personal representative of the deceased executor.</p> <p>3. In a case of the kind mentioned in the preceding headnote, when the successor in the trust has instituted the suit it may be amended by1 naming the personal representative of the deceased executor, suing in his representative capacity, as nominal party, for the use of the successor in the representation of the original estate.</p>

<p>Action for damages; from city court of Eloyd county — Judge Hamilton. August 30, 1909.</p>

<p>Certiorari; from Gordon superior court — -Judge Bite. July 4* 1909.</p>

<p>Indictment for seduction; from Gordon superior court — Judge Eite. September 16, 1909.</p>

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

<p>To obtain sanction of a writ of certiorari, one who is unable to give bond and security for bis appearance to abide the final order, judgment, or sentence of the court must, in order to obtain a supersedeas, make affidavit, as a part of his petition, stating that from his poverty he is unable to give such bond. Railing to make such an affidavit, the petitioner is not entitled to have his petition sanctioned; or if it be sanctioned, it should be dismissed upon motion.</p>

<p>1. A writ of error will not be dismissed, where the judge fails to affix a date to his certificate to the bill of exceptions, unless it affirmatively appears, by proof, that his official signature was made after the time required by law. Civil Code, §5566. “If the certificate of the presiding judge to the bill of exceptions is not dated, it will be presumed to have been made on the date of the acknowledgment of service by counsel fox-defendant in error.”</p> <p>2. The .fact that an act or statenxexxt of the presiding judge may be prejudicial to a defendaxxt about to be placed upon trial for crime is not a legal ground of a motion fox- coxxtinuanee.</p> <p>(a) That the trial judge refused to continue a criminal ease, upon a showing that his act or public statemexxt in court in another case might be prejudicial to the defendant in the case in which the eoixtinuance was sought, by reason of its effect on the minds of jurors, would not constitute an abuse of the discretion vested- in the judge.</p> <p>(b) The point that a jury has been unduly influenced by the conduct of the presiding judge, to such an extent that any one or more of the panel is disqualified from giving the defendant a fair trial-, must be raised' by challenge to the polls.</p> <p>3. A witness whom it is sought to impeach by proof of contradictory statements can not be sustained by proof of his own declaration consistent with evidence at the trial, made at another time and place, whether prior or subsequent to the making of the contradictory statements imputed to him. The testimony of a witness can not be bolstered up by the fact that he has made previous statements conforming to those made upon the stand.</p> <p>4. While hearsay testimony is generally inadmissible, when information, conversation, or similar evidence is pertinent to explain conduct or ascertain motive, such evidence, so far as these purposes are concerned, changes in character from hearsay to original evidence throwing light on conduct or motive. Where evidence tends to ascribe a particular motive for testimony of a witness, it is competent to disprove the existence of such motive, and hearsay may be admitted for this purpose.</p> <p>o. As qualified by the notes of the presiding judge, the other assignments of error present no ground for reversal.</p>

<p>Certiorari; from Eulton superior court — ■ Judge Bell'. September 24, 1909.</p>

<p>Complaint; from city court of Cordele — Judge Strozier. September 23, 1909.</p>

<p>Action, for damages; from city court of Greenville — Judge Revill. February 5, 1909.</p>

<p>Where a common carrier in this State neglects or refuses to obey an order of the railroad commission, requiring it to build a spur or side-track in a certain county and location, and suit is brought by an individual to .recover for loss, damage, or injury caused thereby or resulting therefrom, the venue of the suit is in the county where the principal office or place of business of the carrier is located.</p>

<p>The evidence being conflicting, the judge of the superior court, on certiorari from the first verdict of the jury in tire justice’s court, had the ■ right to grant a new trial.</p>

<p>Action for damages; from city court of Cartersville — Judge Foute. March 23, 1909.</p>

<p>1. In proceedings to eject intruders from the possession of lands and tenements under section 4808 et seq. of the Civil Code, where the officer exhibiting the warrant of eviction to the defendant does not execute the warrant after the expiration of three days, and no counter-affidavit is filed by the defendant within that time, and the officer leaves him in possession of the property, he can subsequently make and file the counter-affidavit with the officer at any time prior to actual eviction.</p> <p>2. “The remedy prescribed in §4808 et seq. of the Civil Code was intended to apply only to intruders, squatters, or disseizors, who enter in bad faith and without any claim or shadow of right.” The evidence in this case clearly shows that the defendant in good faith claimed the right to the possession of the land.</p>

<p>Action on contract; from city court of Statesboro — Judge Brannen. May 12, 1909.</p>

<p>1. “Where a parent, entitled to bring an action of tort for the homicide of a son, dies without having instituted suit, the right of action does not survive to the administrator of such parent.”</p> <p>2. Section 3825 of the Civil Code, to prevent abatement of actions ex delicto in certain cases where either of the parties may die pendente lite, applies only to suits actually pending at the death of the party.</p> <p>3. The1 general rule that a day in law is an indivisible point and that fractions thereof will not be regarded in the computation of time is not applicable where the exact time is necessary to the existence of a right, and can not be invoked to prevent an abatement of a suit ex delicto filed in the name of a plaintiff, who, at the exact time of filing, had been dead for three hours. The actual facts, and not the legal fiction, in such case must prevail.</p>

<p>Complaint; from city court of Moultrie' — Judge McKenzie. May 12, 1909.</p>

<p>Accusation of misdemeanor; from city court of Savannah— Judge Freeman. July 10, 1909.</p>

<p>Complaint; from city court of Fort Gaines — Judge Bambo. March 8, 1909.</p>

<p>Actions for damages; from city court of Covington — Judge "Whaley. February 13, 1909.</p>

<p>Complaint; from city court of Moultrie — Judge McKenzie. Marcli 18, 1909.</p>

<p>This case is practically controlled by the decision of this court in Pidcock v. Crouch, ante, 299.</p>

<p>1. Tlie letter relied on by the defendant as a release of liability was not adequate for that purpose.</p> <p>2. The evidence demanded a verdict in the plaintiffs’ favor.</p>

<p>Complaint — appeal; from Fulton superior court — Judge Ellis. April 1, 1909.</p>

<p>Complaint; from city court of Cordele — Judge Strozier. March 17, 1909.</p>

<p>Foreclosure of lien; from city court of Sandersville — Judge Jordan. March 27, 1909.</p>

<p>Action for damages; from city court of Houston county — Judge Duncan. April 11, 1909.</p>

<p>Trover; from city court of Atlanta — Judge Eeid. June 12, 1909.</p>

<p>Action for damages; from city court of Nashville — Judge Peeples. June 4-, 1909.</p>

<p>Ho insurance company, domestic or foreign, and no individuals or association of individuals can legally transact any business of insurance of any kind or description in this State without first procuring from the insurance commissioner the license required to carry on such business in this State; and no contract of insurance on property situated in this State, no matter whether the contract of insurance is made in this State or elsewhere, is enforceable in this State, unless the insurer, when the policy was written, was duly licensed to do business in this. State. Premiums alleged to be due on such unauthorized policy contracts are not collectible in the courts of this State.</p>

<p>Complaint; from city court of Douglas — Judge Boan. May 20, 1909.</p>

<p>1. Thu court did not err in refusing to allow the amendment to the petition.</p> <p>2. While it is permissible, in an action based on negligence, to vary the specifications of negligence and to amplify the facts of which the alleged negligence is predicated, yet it is not permissible to introduce by amendment, into a petition containing only one count, allegations contradictory to the allegations originally set out in the petition and not stricken.</p>

<p>Certiorari;-from Fulton superior court — Judge Ellis. June 28, 1909.</p>

<p>Trover; from city court of Beidsville — Judge Morgan. June 21, 1909.</p>

<p>Affidavit of illegality; from city court of Monticello — Judge Thurman. July 28, 1909.</p>

<p>Complaint; from city court of Savannah — Judge Freeman. August 7, 1909.</p>

<p>Action for damages; from, city court of Baxley — Judge Parker. September 11, 1909.</p>

<p>Complaint; from city court of Abbeville — -Judge Griffin presiding. August 9, 1909.</p>

<p>Complaint; from city court of Brunswick — E. C. Butts, judge pro hac vice. August 2, 1909.</p>

<p>Complaint; from city court of Abbeville — Judge Griffin presiding. August 10, .1909.</p>

<p>Aetiou for damages; from city court of Floyd county — Judge Hamilton. September 13, 1909.</p>

<p>The validity and obligation of a contract is a matter to be governed by the lex loci contractus. The remedies for the enforcement of liabilities arising under a contract are matters governed by the lex fori. The right of a person to whom rent is due to sue by distress warrant is merely a part of the remedial procedure of this State; and, therefore, one who has rent due him for pi'emises which are in another State, or upon a contract of rental made in another State, may proceed to collect. his rent by distress warrant in this State.</p>

<p>Action for damages; from city court of Floyd county — Judge. Hamilton. September 13, 1909.</p>

<p>No material error of law appears, and the verdict is supported by the evidence.</p>

<p>Actions at law in this State on contracts, express or implied, should be brought “in the name of the party in whom the legal interest in such contract is vested, and against the party who made it in person or by agent.”</p>

<p>Action for damages — appeal; from McIntosh superior court— Judge Seabrook. October 30, 1909.</p>

<p>Accusation of keeping gaming-house; from city court of Eorsyth ■ — Judge Clark. November 25, 1909.</p>

<p>Indictment for sale of liquor; from Henry superior court— Judge Eeagan. November 15, 1909.</p>

<p>Where a defendant is charged with the criminal and fraudulent sale of mortgaged property, an instruction to the jury in the following language is erroneous: “Now if you believe that this defendant, in this county and this State, made a mortgage deeding personal property, and disposed of it, — if you believe that after having made.a mortgage on it he sold it, and the piano had not been paid for, had not been paid for to the owner, who took the mortgage, — -then that is a crime in Georgia. And if you believe it, find him guilty; if on the contrary, find him not guilty.” The charge is erroneous, first, in that it omits reference to the defendant’s fraudulent intent, and secondly, in that it fixes the venue of the crime at the place of the execution of the mortgage, whereas the law fixes it at the place of the sale of the mortgaged property.</p>

<p>Conviction of manslaughter; from Chattooga superior court— Judge Morris presiding. November 13, 1909.</p>

<p>Indictment for assault with, intent to murder; from Taylor superior court — Judge Freeman presiding. November 13, 1909.</p>

Accusation of simple larceny; from city court of Eastman— Judge Graham presiding; November 23, 1909. Frazier was charged with having stolen $40 in.money, the property of H. J. Day. From the evidence it appeared that Day had $40 in his pocketbook, when he stopped his buggy in front of his son’s house and laid the pocketbook on his knee, to take out several coppers, which he gave to his daughter.

<p>Indictment for burglary; from Bibb superior court — Judge Felton. December 16, 1909.</p>

<p>Accusation of cheating and swindling; from eityr court of Sparta • — Judge Freeman presiding. November 24, 1909.</p>

<p>Accusation of pointing gun; from city court of Tifton — Judge Eve. November 16, 1909.</p>

<p>Accusation of larceny; from city court of Eranldin — Judge Loftin. November 30, 1909.</p>

<p>Complaint; from city court of Blakely — Judge Jordan. April 2, 1909.</p>

<p>Action for damages; from city court of Atlanta- — -Judge Beid. January 5, 1909.</p>

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

<p>1. In a suit by a shipper against a common carrier, to recover damages for the loss of freight burned up at the point of delivery to the carrier, an amendment changing the destination, from a point without to a point within the same State, does not introduce a new cause of action.</p> <p>2. Where a petition alleges simply that the plaintiff delivered to the defendant — a common carrier — freight for transportation, and’ the defendant files a demurrer on the ground that the terms of the contract of shipment are not alleged, nor a copy thereof attached to the petition, the demurrer is properly overruled.</p> <p>3. Where a judge gives in charge to the jury the general principles of law applicable to an issue in the' case, a party who desires more specific and concrete instructions as to one of his contentions should make the request therefor in writing.</p> <p>4. Errors in a charge are immaterial when the evidence demands a finding adverse to the complaining party.</p>

<p>1. In an action of trover it is error to award a nonsuit upon tlie ground that the value of the property sought to be recovered has not been shown in advance of the election on the part of the plaintiff to recover damages in lieu of the identical property alleged to have been converted, where it does not appear that it is beyond the power of the defendant to restore the property.</p> <p>2. Even should the plaintiff in an action of trover elect to recover an alternative verdict in damages, in a case where, by the wrongful conversion of the article sought to be recovered, it has been placed beyond his power to show the true value of the personalty in question, he may recover the highest value of the best quality of such personalty.</p>

<p>Complaint; from city court of Eeidsville — Judge Morgan. February 10, 1909.</p>

<p>Complaint; from city court of Dublin — Judge Hawkins. March 8, 1909.</p>

<p>Certiorari; from Cobb superior court — Judge Morris. April 17, 1910.</p>

<p>Levy and claim; from city court of Ashburn — Judge Hawkins. April 24, 1909.</p>

<p>Where the surety on a bond for a purchase-money attachment in a justice’s court is the sole surety on the appeal bond given by the plaintiff in the attachment case, the appeal bond is a nullity; and it can not be amended at the hearing of the appeal by the addition or substitution of an other surety.</p>

<p>1. The evidence, in behalf of the State itself showing that the defendant was justifiable in resisting the attack of three persons engaged in attempting to arrest him 'without a warrant, and there being no evidence introduced in behalf of the State authorizing his arrest without a warrant, and ft further appearing, from the evidence, that the nature of the attack upon him was such as would have justified his use of a knife in self-defense, the conviction was unauthorized.</p> <p>2. Judicial cognizance does not extend to the contents of municipal ordinances; and the fact that a designated act may be disorderly conduct within tlie purview of a municipal ordinance,'and an offense against the municipality, must be established by proper proof of the existence of an ordinance upon that subject.</p>

<p>'The evidence authorized the verdict, and, no error of law having been committed, this court has no power to grant a new trial.</p>

<p>1. A non-negligent act, even though the proximate canse of an injury, will not impose liability on a railroad company as to a licensee who, while standing near the track, is injured by a passing train.</p> <p>2. Where, in a suit against a railroad company, the evidence showed that the plaintiff was injured while standing near a platform not owned by the defendant, upon which was a pile of lumber, one piece of which was projecting- over the track, which piece was struck by a passing train, causing it to fly out and hit him, it was misleading- to charge the jury that if the plaintiff “had an equal opportunity with the defendant of knowing the location of said piece of timber or board, then I charge you that the plaintiff would not be entitled to recover.” Where it appears from the entire charge and record, however, that the complaining party was not injuriously affected by the giving in charge of this principle, and no other error appears in the record, a new trial will not be granted.</p> <p>3. The investigation was full and fair, the trial free from material error, and the verdict is amply supported by the evidence.</p>

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

<p>Levy and claim; from city court of Sandersville — Judge Jordan. July 2, 1909.</p>

<p>Certiorari; from Jeff Davis superior court — Judge Parker. March. 29, 1909.</p>

<p>Action for damages; from city court of Greenville — Judge Revill. June 30, 1909.</p>

<p>Trover; from city court of Reidsville — ■ Judge Morgan. June 21, 1909.</p>

<p>Action for damages; from city court of Washington — W. A. Slaton, judge pro hac vice. August 4, 1909.</p>

<p>Complaint; from city court of Quitman — Judge McCall. June 16, 1909.</p>

<p>Action for damages; from city court of Hartwell — Judge Hodges. July 22, 1909.</p>

<p>Money-rule; from city court of Fayetteville — Judge. Hollingsworth. July 13, 1909.</p> <p>■Creditors of Barbee & Son sued out attachments and had them levied upon six mules as the property of the defendants; and Wright, Williams & Wadley filed a claim to the mules. The sheriff obtained a statutory order to sell the property, as being perishable, and at the sale the claimants gave notice that the property would be sqld subject to their claim. The claimants brought a money rule against the sheriff in aid of their claim, and the attachment creditors were made parties to the rule. The attachments, the claim, and the money-rule were heard together. Before the introduction of evidence the claimants moved to dismiss the attachments, (1) because the affidavits upon which the attachments issued were not signed by the affiants as individuals, but were signed by them as agents or attorneys, and did not say for whom they were acting as such; and (2) because no declaration in attachment had been filed. Several terms of the court had intervened between the term to which the attachments were returnable and the-trial. The court overruled the motion to dismiss. The claimants introduced in evidence a bill of sale of 20 mules and 20 sets of harness, executed to secure the payment of a purchase-money note. No payment was ever made on the note. It was testified and not denied that the mules sold by the sheriff were included in the bill of sale. The court directed a verdict awarding to the attachment creditors the fund in the sheriff’s hands; and the claimants excepted, assigning as error each of the rulings stated.</p>

<p>The verdict directed by the court was the only legal verdict that could have-been rendered in accordance with the admitted facts.</p>

<p>Certiorari; from Floyd superior court — Judge Wriglrt. July-21, 1909.</p>

<p>Complaint; from city court of Franklin — Judge Freeman presiding. July 28, 1909.</p>

<p>Complaint; from city court of Tifton — Judge Eve. August 2, 1909.</p>

<p>Appeal; from Butts superior court — Judge Eeagan. September 6, 1909.</p>

<p>Action on contract; from city court-of Bainbridge- — ■ Judge Harrell. September 22, 1909.</p>

<p>Complaint; from city court of Brunswick — Judge Krauss. May 10, 1909.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. November 11, 1909.</p>

<p>Indictment for assault with, an intent to rape; from Stephens superior court — Judge Kimsey. November 15, 1909.</p>

Conviction of assault with intent to rape; from Mitchell superior court — Judge Park. October 29, 1909. Ernest Huey was convicted of an assault with intent to rape. Iiis motion for a new trial being overruled, he excepted. The following is a substantial statement of the evidence: The female alleged to have been assaulted was fifteen years old and recently married to the defendant’s brother.

Accusation of cheating and swindling; from city court of Richmond county — Judge Eve. October 28, 1909.

<p>Accusation, of libel; from city court of Abbeville — Judge Nicholson. November 11, 1909.</p>

<p>1. A municipality, under its general welfare clause, may by ordinance regulate, in the interest of tlie public health, the sale of milk and milk products.</p> <p>2. While a municipality, under its general welfare clause, may prohibit the sale of ice cream which is adulterated, or contains any deleterious substance, or is otherwise impure or unwholesome, it can not arbitrarily prescribe that ice cream containing less than a certain percentage of butter fats shall not be sold at all, where the percentage is placed so high as to be unreasonable, in that it excludes the sale of ice cream just as. wholesome and in some cases more wholesome than that of the prescribed percentage would be.</p> <p>3. Even if a municipality is authorized to prescribe standard grades of foodstuffs (the standards not being fixed upon any basis of protection to the public health or sanitation) for the purpose of protecting the public from frauds and impositions in the quality of the commodity offered for sale, the ordinance should proceed by a plan of regulation only, and should not absolutely prohibit the sale of useful and valuable commodities not coming up to the prescribed standard.</p> <p>(«) Even if the City of Atlanta has the power to fix upon a standard of richness as to ice cream sold in the city, it has no power to prescribe that wholesome ice cream below that standard shall not be sold at all under any name or designation.</p>

<p>1. As a general rule, the law requires a warrant in order to render an arrest legal, whether it be made by a policeman or by any other public officer. There are three exceptions to this rule, viz.: where an offense is committed in the officer’s presence; where the offender is endeavoring to escape; and where, from other cause, there is likely to be a.failure of justice, for want of an officer to issue a warrant.</p> <p>2. Evidence of guilt, which the defendant, either directly or indirectly, is . compelled to disclose by an unlawful search and seizure of his person under an illegal arrest, is not admissible in a criminal prosecution against him.</p>

<p>The finding of the city council was without any evidence to support it, and the judge of the superior court erred in not sustaining the certiorari.</p>

<p>Accusation of misdemeanor; from city court of Oeilla — Judge-Oxford. December 18, 1909.</p>

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

<p>Indictment for assault with, intent to murder; from Bartow superior court — Judge Fite. December 6, 1909.</p>

<p>Action for false arrest, etc.; from city court of Atlanta— Judge Calhoun. February 5, 1909.</p>

<p>Appeal; from Whitfield superior court — Judge Lite. January 10, 1909.</p>

<p>1. One partner in an ordinary commercial partnership lias authority to execute a promissory note under seal, binding his copartners.</p> <p>2. If a person lending money to a partner for the firm has knowledge or reasonable ground to suspect that it is intended to be applied to other purposes than the business of the firm, he can not recover the money from the partnership.</p> <p>(a) The mere fact that a partner negotiating a loan on behalf of his partnership had previously applied to the same person for a loan, on behalf of a corporation in which he was interested, is not sufficient to cause the lender to suspect that the money borrowed for the partnership would be used in the business of the corporation.</p>

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

<p>Where a contract embodied in two separate written instruments, simultaneously executed and delivered, contains contradictory and ambiguous terms, parol evidence is admissible to explain the contradiction and remove the ambiguity.</p>

<p>Complaint; from city court of Dublin — Judge E. W. Jordan presiding. April 13, 1909..</p>

<p>1. Where a municipal ordinance is valid in part and invalid in part, and the valid part is separable from the invalid part, the ordiiia-nce as a whole will not fall, but the valid part will be upheld.</p> <p>2. The evidence amply authorized the conviction, and there was no error in overruling the certiorari.1</p>

<p>Appeal; from Greene superior court — Judge Meadow. May 13, 1909.</p>

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

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

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

<p>The provisions of section 3722 of the Civil Code of 1895, which allow a creditor, in the absence of a direction by the debtor, to apply a payment made by the latter to any of the several demands which the former may hold against him, are applicable (where no rights of third parties will be affected) even though the payment be derived' from the proceeds of property upon which the creditor has a special lien, and be applied, to an unsecured indebtedness.</p>

<p>Action for damages; from city court of Cordele — Judge Strozier. July 14, 1910.</p>

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

<p>It is the duty of a judge to certify a bill of exceptions if the statements of fact therein are true, regardless of the merits of the bill of exceptions.</p>

<p>Action for damages; from city court of Fitzgerald — Judge Jay, August 6, 1909.</p>

<p>Where there is a dispute between the maker and the payee of a promissory note as to its true amount, a promise to pay the amount as claimed by the payee, in consideration of an extension of time of payment, will not bind the maker, unless he has knowledge of the amount so claimed, nor unless the extension of timé for payment is explicitly made for a definite period.</p>

<p>Complaint; from city court of Abbeville — Judge Griffin presid- . ing. August 23, 1909.</p>

<p>Action for damages; from city court of Dawson — Judge Edwards. July 24, 1909.</p>

<p>Buie; from city court of Oglethorpe — Judge Strozier presiding. September 14, 1909.</p>

<p>Certiorari; from Pulaski superior court — Judge Martin. August 31, 1909.</p>

<p>Action, for malicious prosecution; from city court of Oglethorpe —Judge Greer. September 14, 1909.</p>

<p>1. The motion to dismiss the writ of error is not rvell taken. 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 writ of error will lie, although the ease might not have been disposed of in the trial court. Civil Code, § 5526.</p> <p>2. In an action brought to recover damages arising upon the breach of a forthcoming bond, it is the amount claimed to be due, 'and not the amount stated in the forthcoming bond, which determines whether a justice’s court has jurisdiction. In a case where the damages claimed to be due by reason of the breach of a forthcoming bond are less than $100, a justice’s court has jurisdiction, although the penalty fixed in the bond may exceed $100.</p>

<p>Action for damages; from city court of Polk county — Judge Irwin. September 25, 1909.</p>

<p>Accusation of cheating and swindling; from city court of LaHrange — Judge Harwell. October IS, 1909.</p>

<p>1. Though the provisions of section 080 of the Penal Code, penalizing the act of the cropper in disposing of the crop raised by him for his, landlord, are applicable only in a ease where the cropper disposes of a, portion of the crop in his possession prior to a full settlement with the landlord for his portion of the crop and any advances, nevertheless, where there has been even a partial division, and a portion of the crop is entrusted to the cropper by the landlord under a special bailment created for the landlord’s benefit apart from the relationship of the landlord and cropper, if the cropper thereafter converts to his own use, with intent to defraud the landlord, that portion of the crop which in the division he yielded to the landlord, he may be convicted of the offense of larceny after trust.</p> <p>2. Even though one be a cropper and subject to the penalty of section 680 of the Penal Code, for disposing of a portion of his landlord’s crop before division of the crop and full settlement for all advances, made, still, where there has been a division and the cropper has consented thereto, and he thereafter 'converts to his use all or any part of that portion of the crop segregated and set apart to the landlord’s use with his consent, he may be guilty of larceny. One entrusted with the possession of such portion of the crop who thereafter applies it to his own use is guilty of the offense of larceny after trust.</p> <p>3. By an agreed division of the crop the relationship of landlord' and cropper ceases to exist as to that portion of the crop which has been divided; and the fact that one- who is entrusted witli that portion of the crop which has been set apart to the landlord may sustain to the landlord tlie relation of cropper as to another portion of the crop, still undivided, does not prevent the creation of a special bailment as to the portion of the crop actually divided in kind and awarded to the landlord as a partial payment.</p>

<p>Petition for certiorari; from Pulton superior court — Judge Pendleton. December 10, 1909.</p>

<p>Petition for certiorari; from Fulton superior court — Judge Pendleton. November 15, 1909.</p>

<p>Complaint; -from city court of Thomasville — Judge McKenzie presiding. February 22, 1909.</p>

<p>Levy and claim; from city court of Dalton — Judge Glenn. March. 13, 1909.</p>

<p>Certiorari; from Haralson superior court — Judge Edwards. March 16, 1909.</p>

Action for damages; from city court of Atlanta — Judge Calhoun. April 17, 1909. This was a suit for damages on account of the alleged wrongful removal of the plaintiff’s telephone. He was a subscriber of the-telephone company, and was in arrears in November, 1907, in his. payments to the company, and was notified by it that unless payment of the amount due was made by November 21, his service-would be suspended.

<p>1. Where it is shown that a paper which would afford evidence material to the issue is in court, in the possession of a witness, it is the duty of the judge to require its production instanter, unless it appears that the testimony sought to be elicited is privileged. Moore v. Central Ry. Co., 1 Ga. App. 514 (58 S. E. 63) ; Daniel v. State, 55 Ga. 223; Trustees of Chester Church v. Blount, 70 Ga. 782.</p> <p>(a) Communications between an attorney and his clients are privileged; and hence the contents of a letter written by an attorney to his client are privileged. However, neither the fact that the attorney communicated with his client, nor the date of the communication, nor the fact that subsequently the client acted' under the attorney’s advice, is excluded by reason of privilege. Consequently, the postmark on the envelope which contained the letter from the attorney to the client, or the date of the letter itself, is admissible for the purpose of showing the day on which the communication was mailed and received.</p> <p>2. Although the city courts are without jurisdiction in equity, still they may mold their judgments in accordance with equitable principles, where the defendant interposes an equitable defense. In a case in which the defendant in his answer sets up that he deposited with the plaintiff certain collateral to secure the payment of his indebtedness to the plaintiff, and that his indebtedness has been fully paid, and asks that the plaintiff be required, by the judgment of the court, to return to him his collateral, and upon the trial these statements of the answer are proved without contradiction, the judgment of the eity court should' be so molded as to require that the defendant’s collateral be returned to him.</p> <p>3. Every citizen is presumed to know the law; and the notice which the statute requires to be given in order to fix upon the defendant liability for attorney’s fees (Acts 1000, p. 53) is sufficient if it states the contract upon which suit will be brought, the term of the court to which the suit will be filed, and refers specifically to the act above cited. Such a notice is not in a legal sense misleading though the defendant be notified that he will be liable for attorney’s fees unless the principal and interest of his obligation is paid within ten days after the receipt of the notice.</p> <p>4. A creditor who holds, as collateral security, notes belonging to the debt- or, which could have been collected before maturity of his debt, or before return day of the term of court to which suit upon it was brought, can. not, as against the debtor, claim a judgment for attorney’s fees as to any amount which, by the exercise of ordinary diligence, might have been collected from the collateral. Consequently, where a defendant denies the plaintiff’s right to recover attorney’s fees, and the burden is thus cast upon the plaintiff to establish his right to such fees, and it appears that the note or contract upon which the attorney’s fees are asked was secured by collateral notes sufficient in amount to have discharged the entire liability of the debtor, the plaintiff fails to establish his claim for attorney’s fees, unless he shows that the collateral notes were in fact not collectible upon the return day of the court to which suit was brought, either because they were not due, or for some other reason.</p> <p>5. Where attorney’s fees are recoverable at all, their amount is not determined by the amount claimed, to be due upon return day, but is fixed (except so far as the result may be affected by special circumstances of an equitable nature) by the amount actually due on that day, and subsequent interest, if any, as determined either by voluntary payments made subsequently to the return day, or (if no such payment has been made) by the amount of the judgment for principal and interest which the plaintiff is entitled to recover.</p> <p>6. As such attorney’s fees as are recoverable are in the nature of liquidated' damages which inure to the benefit of the plaintiff, and are not a provision for the benefit of his attorney, a plaintiff who has given the required notice entitling him to recover attorney’s fees may waive them by settling with the defendant in full, or by accepting payments thereon from the defendant, under an agreement or understanding not to insist on the liability created by the notice.</p>

<p>1. The refusal to arrest a judgment not being a proper ground for a motion for new trial, but a matter for direct exception, this court can not consider an assignment of error thereon in a bill of exceptions in a criminal case, presented to the judge more than twenty days after the rendition, of the judgment overruling’ the motion to arrest judgment.</p> <p>2. Where primary evidence is shown to be inaccessible, secondary evidence may be resorted to. Where, on the trial of a criminal case, original money orders purchased from an express company are shown to be'in the possession of the defendant, or to have been forwarded to the headquarters of the express company in another State, they are inaccessible, and the stubs kept in the local office of the express company and containing ■copy memoranda of the original orders are admissible in-lieu thereof. .</p> <p>3. The circumstance that one purchases express money orders payable to-a dealer in intoxicating liquors in another State, and shortly thereafter receives a package by express from the city of the payee’s residence, is relevant for the purpose of showing that the purchaser of the money orders has purchased intoxicating liquor; and the fact that one has within, a short time purchased a large number of such money orders and in return received a large number of packages, while not of itself sufficient to authorize the inference that the presumed purchaser of intoxicating-liquor was also a seller of such liquor in violation of law, is relevant as corroborative of other evidence tending to show his guilt, on his trial upon an accusation charging him with the unlawful sale of intoxicants. Circumstantial evidence may be relevant even though of very slight probative value.</p> <p>4. The verdict was not supported by any evidence, and for that reason the court erred in not granting a new trial.</p>

<p>Action for damages; from city court of Baxley — W. W. Bennett, judge pro hac vice. April 7, 1909.</p>

<p>Money rule; from city court of Blakely — Judge Jordan. March 16, 1909.</p>

<p>Trover; from city court of Blakely — Judge Jordan. May 17, 1909.</p>

<p>In view of the fact that the decision of the Supreme Court, in answer to the certified questions submitted by this court, is controlling and overrules the decision of this court in Rose v. State, 4 Ga. App. 588 (62 S. E. 117), the judge of the superior court erred in refusing to sanction the petition for certiorari. See R. M. Rose Co. v. State, 133 Ga. 353 (65 S. E. 770).</p>

<p>Indictment for burglary; from Spalding superior court — Judge L. S. Roan, presiding. November 1, 1909.</p>

<p>Habeas corpus; from city court of Atlanta — Judge Eeid. March 27, 1909.</p>

<p>Certiorari; from Fulton superior court — Judge Ellis. May 28, 1909.</p>

<p>Petition for removal to United States court; from city court of Savannah — Judge Freeman. May 31, 1909.</p>

<p>1. If the transferor of a promissory note, not the original payee, was a bona fide holder for value, before maturity and without notice of equities or defenses, his transferee is subrogated to his rights, and may recover on it, notwithstanding the transferee had notice, express or constructive, of defenses to the note.</p> <p>2. There were reasonable deductions or inferences, from the evidence, which would have warranted a verdict for the plaintiff; and the direction of a verdict for the defendant was erroneous.</p>

<p>Complaint; from city court of Dublin' — Judge Hawkins. September 22, 1909.</p>

<p>Indictment for assault with intent to murder — conviction of shooting at another; from Fannin superior court — Judge Morris. October 9, 1909.</p>

<p>1. Where a common carrier contracts to transport goods from one point to another and fails to do so within a reasonable time, the party injured has the option of suing ex contractu for the breach of the contract of carriage, or ex delicto for the tort arising from, the breach of the legal public duty imposed upon it through the law and the contract.</p> <p>2. By the Civil Code of 1895, §2334, suits ex contractu against railway companies must be brought either in the county where the contract was made or in the county in which it was to be performed, — that is, on a contract for the transportation of good's, the suit is to be brought at the place where the contract was made or where the goods were to be finally delivered. In suits ex delicto the action is to be brought in the county where the cause of action originates; and if the cause of action originates through the failure of the public duty of delivering within a reasonable time, the tort is presumed to have been committed at the point of destination.</p> <p>3. Civil Code, §2334, does not cover the case of a tort committed in another State by a non-resident corporation. Hence, in an action ex delicto against a non-resident railroad corporation for failing to transport goods from a point in this State to a point in another State, the cause of action, in legal contemplation, is considered as arising- in the latter State, and the venue may be located in any county in this State in which service may be obtained.</p>

<p>Accusation of stabbing; from city court of Americus — Judge Crisp. November 9, 1909.</p>

Appeal; irom Fulton superior court — ■ Judge Ellis. November 20, 1909. The piano company sued out a purchase-money attachment, alleging that Miss Ava Glover was indebted to it in the sum of $60 for the purchase of a piano. She filed a defense stating that she had bought the. piano for the price of $350, and had paid $340 and. tendered the other $10, but that the plaintiff refused to accept the-other $10, claiming that $60, instead of $10, was due upon it.

<p>1. Where an accusation stated the name of the defendant as Cornelia Johnson, and the affidavit upon which the accusation was based stated the name of the defendant as Cornelius Johnson, the question as to the identity of the defendant named in the accusation with the defendant named in the affidavit should have been made by a special plea in abatement. Identitate personse, and not idéntitate nominis, constitutes the true and only issue.</p> <p>2. The evidence clearly established the venue. The evidence, while not entirely satisfactory, was sufficient to show the guilt of the defendant. The trial court committed no-material error of law, and the judge of the superior court did not err in dismissing the certiorari.</p>

<p>Action on bond; from city court of Athens — -Judge West. December 3, 1909.</p>

<p>Accusation of sale of liquor; from city court of Fitzgerald. December 9, 1909.</p>

<p>Accusation of assault and battery; from city court of Griffin.— Judge Flynt. December 13, 1909.</p>

<p>1. It is not error to refuse to arrest judgment where the allegations of the accusation so substantially define the offense as to make the charge, clearly intelligible to the jury, and so plain that the court would have no difficulty in pronouncing judgment.</p> <p>2. An accusation charging the offense of abandonment of a child, under section 114 of the Penal Code, is sufficient as to the defendant’s relation of father, if the name of the accused denotes a person of the masculine gender, and if the child is described as his child. In the absence of proof to the contrary, the inference is authorized that a child described in relation to a named man as his child is not merely a child committed to his custody, but is the offspring of his body and lawfully begotten.</p>

<p>Appeal; from Berrien superior court — ■ Judge Mitchell. December 16, 1909.</p>

<p>Indictment for misdemeanor; from Douglas superior court— Judge Edwards. November 24, 1909.</p>

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

<p>Certiorari; from Liberty superior court — Judge Seabrook. September 22, 1909.</p>

<p>Certiorari; from Gilmer superior court — ■ Judge Morris. October term, 1909.</p>

<p>Action for damages; from city court of Brunswick — Judge Krauss. November 1, 1909.</p>

<p>Action for damages; from city court of Waj’cross- — ■ Judge Myers. October 9, 1909.</p>

<p>1. No inference authorized, by the evidence or a lack of evidence warranted the verdict rendered. A finding in favor of the plaintiff was demanded by the uncontradicted evidence, and for that reason the verdict -was contrary to law.</p> <p>2. Where a partnership composed of two members is sued and only one of the partners is served, and judgment is rendered against the partnership and against, that partner individually who was served, the partner not served is still liable to be sued individually, though there may have been no return of non est inventus as to'him. As to the individual served, the partners stand as though no judgment had been rendered in the suit upon the account to which they were both parties, and the fact that no return of non est inventus was made as to the defendant on whom no service was perfected did not operate so as to create a merger of his liability into the -first judgment.</p> <p>3. Reasonably construed, tlie answer to the cross-interrogatory was responsive thereto, and the statement as to the account sued upon was more than a conclusion of the witness. It appearing that only one account was mailed by him to the justice of the peace, and the justice having testified to having received only one account, the testimony objected to was a pertinent circumstance to he considered by the jury, and should not have been excluded.</p>

<p>Misdemeanor; from city court of Bichmond county — Judge Eve. November 9, 1909.</p>

<p>The court erred in not granting- a continuance;</p>

<p>Complaint; from city court of Nashville — Judge Buie. December 3, 1909.</p>

Accusation of riot; from city court of Nashville — Judge Buie. November 22, 1909.

<p>Certiorari; from Pike superior court — Judge Beagan. December 20, 1909.</p>

<p>Complaint; from city court of Washington — Judge Wynne. December 14, 1909.</p>

<p>Accusation of misdemeanor; from city court of Baxley — Judge Padgett. October 25, 1909.</p>

<p>Accusation of misdemeanor; from city court of LaG-range— Judge Harwell. January 1, 1910.</p>

<p>Indictment for misdemeanor; from Warren superior court— Judge Meadow. December 25, 1909.</p>

<p>1. While the forgery or fraudulent alteration of an instrument utterly incapable of being used for the purpose of defrauding may not be punishable under our statute ag'ainst forgery, yet one who has altered a cheek or promissory note by changing the name of the payee and the amount is not exempt from prosecution because he executed the forgery or alteration so crudely that the person upon whom he attempted to pass it detected it at once.</p> <p>2. It is not necessary that an instrument shall be negotiable, in order to be the subject-matter of forgery.</p>

<p>The court did not err in granting a nonsuit.</p>

<p>Trover; from city court of Douglas — Judge Roan. December 1, 1909.</p>

<p>Certiorari; from Pulton superior court — Judge Ellis. January 12,1910.</p>

<p>Indictment for larceny; from Baker superior court — Judge Park. December 14, 1909.</p>

<p>1. No particular form is necessary to constitute a mortgage. Any instrument creating a lien, specifying tlie debt to secure which it is given and the property upon which it is to take effect, is to be construed as a mortgage, notwithstanding that there may be some language in the instrument which would indicate an intention to convey the legal title. The instrument before the .court, properly construed, is a mortgage, and not a deed to secure a debt.</p> <p>2. “A mortgage may cover a stock of goods, or other things in bulk but changing in specifics, in which case the lien is lost on all articles disposed of by the mortgagor up to the time of foreclosure, and attaches on the purchases made to supply their place.” This incident of loss and substitution of lien as to goods sold and bought takes place by operation of law whenever there is a mortgage upon a stock of goods, and it is not necessary that the parties expressly contract that this shall be an incident of the giving of the mortgage, in order for it so to lie enforceable.</p>

<p>Accusation of sale of liquor; from city court of LaGrange — ■ Judge Harwell. January 1, 1910.</p>

<p>Indictment for burglary; from Sumter superior court — Judge Littlejohn. January 5, 1910.</p>

<p>Certiorari; from Eulton superior court — Judge Ellis. January 12, 1910.</p>

<p>Certiorari; from Eulton superior court — Judge Ellis. January 12, 1910.</p>

<p>Certiorari; from Fulton superior court — Judge Ellis. January 11, 1910.</p>

<p>Accusation of misdemeanor; from city court of Dawson — Judge Edwards. January 27, 1910.</p>

<p>Accusation of adultery and fornication; from city court of Carrollton — Judge Beall. January 15, 1910.</p>

<p>1. The defendant, having admitted in his answer that he was in possession of the property in dispute, was estopped from asserting that the description of the articles which he admitted to he in his possession was insufficient for the purpose of identification. Especially is this true where the articles are of such a nature as not to be capable of minute and specific description, as is the case of ears of corn, bundles of fodder, sweet potatoes, and syrup.</p> <p>2. The evidence authorized the verdict, and the defendant can not complain that the plaintiff voluntarily wrote off a portion of the verdict rendered in his favor.</p> <p>3. Where the relation of landlord and cropper exists, the title to the crop vests in the landlord and may be asserted by trover. In such a case the jury may find a verdict awarding the possession of the property in dispute to the plaintiff, and subjecting him to the prior payment of an indebtedness due by him to the defendant. Such a verdict is not void, as being too vague, indefinite, and uncertain for enforcement by judgment.</p>

<p>A new trial will not be granted because a witness, in his testimony on the trial, made a statement wholly unexpected to the defendant, who at the time knew the statement was false, and that he could so prove by a witness whose testimony he could have procured had he thought such proof was necessary. The party surprised by the statement of the witness should have moved for a continuance. He could not take his chances of a verdict and then claim a surprise.</p>

<p>Accusation of disturbing public worship; from city court of Dawson. Judge Edwards. January 24, 1910.</p>

<p>Indictment for larceny; from Ben Hill superior court — Judge Whipple. November 13, 1909.</p>

<p>One who, with intent to defraud, designedly, by color of a forged and counterfeit check or draft, made in the name of any person, or in a fictitious name, obtains money from another, is not indictable under section 670 of the Penal Code, for obtaining money by the use of deceitful means or artful practice; as the alleged fraudulent acts specifically constitute a felony under section 247 of the Penal Code.</p>

<p>The finding of the judge of the police court, that the defendant had violated the city ordinance, in having on hand intoxicating liquor for the purpose of sale, is without any evidence to support i1..</p>

<p>Accusation of larceny; from city court of Dublin — Judge Hawkins. January 15, 1910.</p>

<p>Indictment for assault with intent to murder; from Sumter superior court — Judge Littlejohn. January 25, 1910.</p>

<p>Indictment for seduction; from Spalding superior court — ■ Judge Eeagan. February 7, 1910.</p>

<p>1. “On the trial of one charged with having violated the law by illegally selling intoxicating liquor, proof that the accused received money from another person, accompanied with a request to procure whisky for the latter, and shortly thereafter delivered whisky to such person, puts the onus on the defendant of explaining where, how, and from whom he got the liquor (Grant v. State, 87 Ga. 205 [13 S. E. 554]) ; and if the explanation offered by him is supported only by his own statement, the jury, if they believe it to be a mere subterfuge to cover up an illegal .sale by himself, are authorized to find him guilty. White v. State, 93 Ga. 47 [19 S. E. 49].” Mack v. State, 116 Ga. 546 (41 S. E. 776). See also Sessions v. State, 6 Ga. App. 336 (64 S. E. 1101). This rule applies to municipal prosecutions for having liquor on hand for the purpose of unlawful sale. Bray v. Commerce, 5 Ga. App. 605 (63 S. E. 596).</p> <p>2. The venue was abundantly shown.</p> <p>3. The judge did not err in refusing to sanction the certiorari.</p>

<p>1. On the trial of an indictment for using, without provocation, vulgar, obscene, and profane language in the presence of a female, it is incumbent upon the State to prove that the words were used without provocation; but where the State shows all the facts and circumstances in connection with the use of the objectionable words, it is exclusively for the jury to determine whether they were used without provocation.</p> <p>2. On the trial of a misdemeanor the judge, in compliance with a timely request of counsel, reduced to writing his charge and read it to the jury, who, after retiring to consider of their verdict, returned into court and asked the judge if they were authorized, in the event of conviction, to recommend mercy; and the judge informed them orally that they could do so if they wished, but that such recommendation would have no legal effect and would not be binding on the court. Held, that this statement to the jury was not an “additional charge,” within the meaning of section 1030 of the Renal Code, and the judge did not err in making it orally.</p> <p>3. No error of law appears, and the evidence supports the verdict.</p>

<p>1. Where witnesses have been separated, at request of counsel, a person not sworn and sequestered, but who has reanained in the court-room and heard the testimony in the case, is still competent to testify as a witness in the cause. If he has been purposely kept in' the eourt-rooiai in disobedience of the orders of the court, with knowledge of the fact that he was to be used as a witness, the fact that he has heard the testimony goes to his credit, and the court may punish either the party who caused him to remain in the court-room or the witness himself, or both, according' to the circumstances, for contempt of court; but it is error to refuse to allow him to testify, unless the party offering- him has expressly waived the right to use the witness.</p> <p>2. A party’s right to have the testimony of any witness, when material to the assertion of his rights, is, under the provisions of the evidence act of 1889 (Civil Code, §5269), unabridged, except by the exceptions therein specified, and is unaffected by section 5280 of the Civil Code (Penal Code, §1017), which relates to the sequestration of witnesses.</p>

<p>1. As to the element of trust, this ease is fully controlled, by the decision; of this court in Hagood v. State, 5 Ga. App. 80 (62 S. E. 641), 6th. division of the opinion, and cases there cited; and it does not affirmatively appear that the contentions of the State and the defendant were not fairly and fully submitted to the jury, in the charge of the court, under the allegations qf the indictment and the evidence in support thereof.,</p> <p>2. No material error of law was committed by the court in the trial of the case, and the verdict is supported by the evidence.</p>

<p>Conviction of manslaughter; from Bibb superior court — Judge Felton. February 11, 1910.</p>

<p>Indictment for abandonment of child; from Floyd superior court — Judge Maddox. February 5, 1910.</p>

<p>■ Conviction of manslaughter; from Floyd superior court' — Judge Maddox. February 19, 1910.</p>

<p>1. Tlie evidence fully authorized the defendant’s conviction.</p> <p>2. The fact that a trial judge asked questions of the witnesses is not cause for new trial, unless the complaining party suffered prejudice thereby.</p>

<p>Indictment for breaking and stealing from railroad car; from. [Whitfield superior court — -Judge Fite. Januarjr 22, 1910.</p>

<p>1. On the question as to whether the verdict of shooting at another is authorized by the evidence, the ease of Fallon v. State, 5 Ga. App. 659 (63 S. E. 806), is controlling.</p> <p>2. “Where the question of personal identity and the fact of alibi are virtually the same defence, the omission of the court to instruct separately on alibi is not error.”</p> <p>3. Wherever section 1036 of the Penal Code of 1895 is applicable, it is error for the judge to fail to give it in charge to the jury. However, the defendant’s guilt being reasonably clear in the present case, and it being possible that the errors complained of may be corrected without a new trial, the judgment is reversed, with directions looking to the obviating' of this error.</p>

<p>Action for damages; from Eulton superior court — Judge Pendleton. January 26, 1909.</p>

<p>Complaint; from city court of Montieello — Judge Thurman. September 6, 1909.</p>

<p>1. Both the traverse and the exceptions to the answer of the judge of the county court were filed too late. The superior-court judge tries the traverse to the answer of the county-court judge.</p> <p>8. Even though an oral judgment upon a certiorari, because it is subject to change, is ineffectual as a judgment until reduced' to writing, it is entirely within the discretion of the judge to refuse to open the case and permit a traverse to be filed after pronouncing such an oral judgment, for the reason .that it is too late to file a traverse after the hearing of the case is entered upon.</p> <p>3. According to the statements in the answer of the county-court judge, there was no error in refusing to sustain the defendant’s plea of former jeopardy. The right to have the issue, formed upon the plea of former jeopardy, submitted to a jury wfas waived by failure to object in time to the trial of that issue by the court.</p> <p>4. Assignments of error in the petition for certiorari, -which are meritorious, were not verified by the answer of the trial judge; and as no exceptions were filed before the ease was sounded in its order upon the docket, the judge of the superior court properly disregarded them.</p> <p>5. The evidence authorized the conviction of the defendant, and it was not error to overrule and dismiss the certiorari.</p>

Action for damages; from city court of Floyd county — Judge Hamilton. September 13, 1909. Mrs. Burnett sued the City of Rome for damages on account of personal injuries from a fall alleged to have been caused by the condition of a street in which she was walking. Her petition was dismissed on demurrer, and she excepted.

<p>Action for damages; from city court of Eloyd county — Judge Hamilton. September 13, 1909.</p>

<p>Action for damages; from city court of Sparta — Judge Little. August 27, 1909.</p>

<p>1. A city court has jurisdiction to reduce to judgment a debt secured by a deed, as provided in section 5432 of the Civil Code. Neither the rendition of the judgment upon the debt nor any step necessary for that purpose concerns the title to the land. Such a suit is not a “ease respecting title to land.” The fact that a special lien is prayed for in the petition may be treated as surplusage, and does not affect the jurisdiction of the court.</p> <p>2. It is not necessary for a corporation, in bringing a suit, to aver that ' it is a corporation, when its name imports a corporate body, or when the fact of its incorporation is a matter of judicial knowledge. A party will not be heard to deny that the opposite party to a suit is a corporation, where he has dealt with such party as a corporation.</p> <p>3. The statutory notice given for the purpose of fixing liability for attorney’s fees must disclose the holder of the note in whose behalf payment is demanded. A notice which does not expressly state or otherwise disclose who is the holder of a note upon which attorney’s fees are sought to be recovered is insufficient to be the basis of a judgment for attorney’s fees.</p> <p>4. Where it appears in the plaintiff’s petition, or from exhibits attached thereto, that one of the defendants, designated as an indorser, is in fact a security, the petition may be amended by alleging such obligor to be a security.</p>

<p>Complaint; from city court of Macon — Judge Hodges. September 18, 1909.</p>

<p>Certiorari; from Fulton superior court — Judge Bell. September 25, 1909.</p>

<p>A railroad company is not liable for unintentionally frightening stock on a parallel highway by the noises usual or necessary in the operation of its trains.</p>

<p>The record contains no legal "brief of the evidence. The materiality of the exceptions is dependent upon the testimony; lienee the exceptions can not be considered.</p>

<p>Forfeiture of recognizance; from city court of Camilla — Judge Scaife. December 2, 1909.</p>

<p>1. A partnership proper is a contractual relationship created by agreement of the parties, arising either from the express terms of a contract or from implications to be drawn therefrom; although a person may be held liable as a partner even in the absence of a contract, in certain instances.</p> <p>(a) The contract in the present casé was an express contract of partnership.</p> <p>2. A married woman may contract to become, and actually become, a member of a partnership with her husband or other persons; and if she does enter into such a partnership arrangement (unless it is merely colorable and devised for the purpose of evading the law), she is bound for the partnership debts.</p> <p>(a) There is nothing' in the present instance to indicate that the partnership was fraudulent or was devised to violate the law.</p>

<p>Action for damages; from city court of Eastman — Judge Griffin. October 20, 1909.</p>

<p>Conviction of involuntary manslaughter; from Gwinnett superior court — Judge Brand. January 3, 1910.</p>

<p>When it appears that service of the hill of exceptions was acknowledged upon a day anterior to the date when the judge certified the bill of exceptions, the writ of error must be dismissed.</p>

<p>1. “When a promissory note for the purchase-money of personal property, which contains a reservation of title to the property in the payee until the note is paid, is by the payee transferred for value to a third person without recourse, the title reserved for securing the payment of the debt is divested; and if, at the time of such transfer, the title so held is not likewise transferred to the purchaser of the note as a security in his hands, it vests in the maker, and the transferee becomes an ordinary creditor of such maker.”</p> <p>2. The right to retake possession of personalty to which title is reserved by the vendor is a chose in action, and ehoses in action must be assigned in writing,</p> <p>3. As all ehoses in action must be assigned in writing, the mere delivery of a note containing a reservation of title to personalty, while sufficient to transfer the evidence, of the debt, is insufficient to establish such privity between the maker of the note and the transferee as will continue or keep alive the right of retaking the chattel.</p> <p>4. The evidence was insufficient to authorize the judgment rendered.</p>

<p>Accusation of trespass; from city court of Fitzgerald — Judge Wall. December 25, 1909.</p>

<p>Action for damages; from city court of Savannah — Judge Freeman. December 6, 1909.</p>

<p>Action for damages; from city court of Atlanta — Judge Calhoun. November 18, 1910.</p>

<p>Action on bond; from city court of Valdosta — Judge Smith. December ÍL0, 1909.</p>

<p>Complaint; from city court of Ocilla — Judge Oxford. January 25, 1910.</p>

<p>1. A certified copy by tlie collector of internal revenue for the State of Georgia, from the records of his office, showing the names of all persons who have paid special taxes within his district, is admissible evidence for the purpose of showing that a particular person has paid the special taxes as a retail liquor dealer.</p> <p>2. The verdict is fully supported by the evidence, and no error of law appears.</p>

<p>Appeal; from Whitfield superior court — Judge Fite. January 15, 1910.</p>

<p>Indictment for assault with intent to murder; from Dougherty superior court — Judge Park. February 18, 1910.</p>

<p>Indictment for perjury; from Floyd superior court' — ■ Judge Maddox. February 16, 1910.</p>

<p>Accusation óf sale of liquor; from city court of Brunswick — ■ Judge Krauss. January 26, 1910.</p>

<p>Indictment for assault with intent to murder; from Oglethorpe superior court- — -Judge Meadow. February 5, 1910.</p>

<p>Certiorari; from Mitchell superior court — Judge Park. February 14, 1910.</p>

<p>Indictment for sale of liquor; from Floyd superior court— Judge Maddox. February 18, 1910.</p>

<p>The evidence, though weak and circumstantial, is not in a legal sense insufficient to support the verdict; the exceptions to the charge and to the rulings on testimony are not meritorious; the ground of the motion for a new trial based on alleged newly discovered testimony does not present such a state of affairs as would authorize this court to overrule the trial judge in his refusal to grant a new trial on this ground.</p>

<p>Accusation of sale of liquor; from city court of Forsyth— Judge Clark. February 18, 1910.</p>

<p>1. In an indictment for cattle-stealing, the following description of the animal alleged to have been .stolen is sufficient, namely, “One cream-colored Jersey cow, of the personal goods of [the prosecutor], and of the value of forty dollars.”</p> <p>2. It is a matter of common knowledge, of which the court will take judicial cognizance, that a cow is a female animal, is a horned animal,, and has cloven hoofs, and that the larceny of a cow is, therefore, within the purview of § 159 of the Penal Code.</p> <p>3. The evidence is sufficient to authorize the verdict.</p>

<p>Accusation of'gaming; from Floyd superior court — Judge Maddox. February 16, 1910.</p>

<p>Indictment for bigamy; from Decatur superior court — Judge Park. March 1, 1910.</p>

<p>Action for damages; from city court of Millen — Judge Jones. September 22, 1909.</p>

<p>Accusation of fornication; from city court of Americas — Judge Crisp. August 3, 1909.</p>

<p>Complaint; from city court of Bainbridge- — -Judge Harrell. September 21, 1909. i</p>

<p>Action for damages; from city court of Atlanta — Judge Eeid. October 18,1910.</p>

<p>The law of this case is fully decided in Southern Railway Co. v. Miller, 1 Ga. App. 616, and cases there cited.</p>

<p>Petition for removal of causé; from city court of Thomasville— Judge Hammond. October 11, 1909.</p>

<p>Complaint — appeal; from Pulton superior court — Judge Ellis. November 10, 1909.</p>

<p>Accusation of sale of liquor; from city court of Sandersville — • Judge Jordan. October 14, 1909.</p>

<p>Action for damages; from city court of M'aeon — Judge Hodges. November 6, 1909.</p>

<p>Action for damages; from city court of Richmond county— Judge Eve. November 9, 1909.</p>

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

<p>Certiorari; from Effingham superior court — Judge Seabrook. October 13, 1909.</p>

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

<p>Indictment for misdemeanor; from Haralson superior court— Judge Edwards. December 3, 1909.</p>

<p>1. A copy of a lost paper may be established in lieu of a lost original, under tlie provisions of § 4745 of the Civil Code, and tlie copy thus established may thereafter afford a basis for an action at- law. This procedure, however, is merely cumulative, and not .'exclusive of the right of the owner or holder of a lost paper to sue upon a copy of it, and prove the existence of the lost original if it is disputed. “A lost instrument may be sued on; and if a plea of non est factum is filed, the same may be met by the proof that the lost note was genuine, and that tlie copy attached to the declaration is correct.” Civil Code, § 4749. A suit upon a lost note is as effectual as a suit upon an established copy, if tlie only purpose of establishing the ‘ copy be to obtain judgment upon the note.</p> <p>2. In a case in which the court had jurisdiction of the person and the subject-matter, and the defendant was personally served with process, he can not, by affidavit of illegality, go behind the judgment rendered therein, and attack the genuineness of a note, a copy of which was attached to the original summons served upon him.</p>

<p>Action for damages; from city court of Floyd county — Judge Hamilton. December 13, 1909.</p> <p>Mrs. Browning sued the Village of Cave Spring for personal injuries, which she alleged were caused by the defendant’s negligence in failing to have guard-rails along the- side of a bridge from which she stopped and fell. At the trial she testified, that the bridge was in a street of the village and crossed a creek. The part that crossed the creek had guard-rails, but the approaches had no rail or other protection at the sides. The width was about eight feet. The approaches were about twenty or thirty feet long. She was walking across the bridge at night, on her way from the hotel, where she resided, to the grounds of the Institute for the Deaf and Dumb, and just after she had crossed the main part of the bridge, she stepped off the right side of the approach, and fell to the ground, a distance of five or six feet, thereby sustaining the injuries for which she sued. It was dark and cloudy. She could see lights in the Institute, but no light was shed oh the bridge. She was with a gentleman, and was laughing and talking as she went along, and was not thinking it was necessary to pay attention to where she was walking. She testified: “I told Mrs. Connor and Mrs. Wiggins I thought perhaps unconsciously I walked to the right because the lights of the Institution were to the right of the bridge, and perhaps unconsciously we moved toward them; but I do not know that.” “Erom the fall of 1896 to the spring of 1900 I was teaching . . at the Deaf and Dumb Institute. . .• I had occasion frequently to cross over this bridge during that time. I knew the bridge very well at that time. The approaches of the bridge were the same as they are now, I suppose.” She left Cave Spring in the spring of 1900, and returned in the spring of 1909. The injury occurred in April, 1909. During a period of about ten days preceding the injury she frequently went over this bridge. She “went over it in the dajdime, and had no occasion to notice its condition.” She further testified: “Anybody crossing that bridge, it is obvious there are no railings to the bridge, if they take any notice of it. It is evident there is no railing there; and it was at that time if they looked at it at all. . . Anybody at all crossing the bridge at that time, or now, or before, its open condition, without any railing, is manifest.” This condition could not have been seen on a night as dark as that on which the injury occurred.</p> <p>At the conclusion of the plaintiff’s evidence, counsel for the defendant moved for a nonsuit, on the grounds, that the municipality was not required to put a guard-rail on the.bridge, and that the plaintiff knew or was charged with notice of the condition of the bridge. The court granted a nonsuit, and the plaintiff excepted.</p>

<p>Accusation of larceny; from city court of Dublin — Judge Griffin presiding. December 11, 1909.</p>

<p>Conviction of manslaughter; from Carroll superior court— Judge Edwards. February 9, 1909.</p>

<p>Conviction of manslaughter; from Floyd superior court — > Judge Maddox. February 19, 1910.</p>

<p>1. When a written contract expressly recites that it is made for one purpose, it is not competent (in the absence of a claim of fraud, accident, or mistake) to show by parol that it was made for another inconsistent purpose.</p> <p>2. Under the facts presented there was no error in holding that the present complaining defendants were not discharged from liability by the action that had been taken in the case as to other joint obligors on the instrument sued on.</p> <p>3. The court did -not err in directing a verdict in the plaintiff’s favor.</p> <p>(a.) While it is permissible to prove as a part of the res gesta; of a transaction that one of the parties purported to act as the agent of a third person, yet his declaration to that effect is not of sufficient probative value to establish the agency, unless there be further proof, direct or circumstantial, to show that he was in fact an agent or that his acts as agent had been ratified by the alleged principal.</p>

<p>Indictment for assault with intent to murder; from Mitchell superior court — Judge Park. February 14, 1910.</p>

<p>Action for damages; from city court of Sparta — Judge Moore. February 15, 1910.</p>

<p>Certiorari; from Britts superior court — Judge Beagan. March 4, 1910.</p>

<p>Indictment for larceny after trust; from Muscogee superior court — Judge Gilbert. March 5, 1910.</p>

<p>Accusation of sale of liquor; from city court of Fitzgerald— Judge Wall. March 14, 1910.</p>

<p>1. If a defendant' in a criminal ease demands trial in accordance with, the statutory method, and he is not tried at the term at which he makes the demand, or at the next succeeding term, his discharge and acquittal take place by operation of law, provided that “at both terms there were juries impaneled and qualified to try him.” It is a matter of regularity that the record in the case be completed by the court’s entering the fact of the discharge upon the minutes by formal order; but the discharge is effective whether the order is ever entered or not.</p> <p>2. The defendant'who has made a formal demand and had it spread upon' the minutes may thereafter waive his right to insist upon it, but it is not incumbent upon him to take further active steps to bring the case to trial, and he does not waive it by remaining silent and not calling the attention of the court to the matter thereafter.</p>

<p>Buie; from city court of Savannah — Judge Freeman. August 27, 1909.</p>

<p>Action for damages; from city eoiirt of Sylvania — Judge Boy-kin. June 9, 1909.</p> <p>Dutton obtained a verdict for $250, on account of the locomotive engineer’s failure or refusal to stop the passenger-tfaia at a station where such trains were accustomed to stop when a signal flag was displayed. The occasion was in daylight; the track was straight for a long distance as the train approached, and there was nothing to prevent the engineer from seeing the flag; and Dutton, to whom the station agent had sold a ticket, was standing by the track, bag in hand, waiting to step on the train when it should stop. As it ran by at high speed the station agent, looking at the engineer, pointed to the flag, and the engineer said something that could not be heard. He testified that he had nothing against Dutton, and that there was no reason why he shdtlld not have stopped the train if he had seen the flag displayed; A motion foi new trial, on the grounds that the verdict was contráry to law and. evidence, and was excessive, was overruled, and the defendant excepted.</p>

<p>Complaint; from city court of Calhoun county — Judge Calhoun. November 11, 1909.</p>

<p>The sale of land involved in the present ease was by the tract, and not 'by the acre. Under the peculiar facts of the ease and the stipulations of the parties, the judge should not have held as a matter of law that the abatement of the purchase-price should be calculated by mere comparison of the number of acres described in the bond for title with the admitted deficiency.</p>

<p>Action for damages; from city court of Savannah- — -Judge Freeman. October 20, 1909.</p>

<p>Illegality; from city court of Americus — Judge Crisp. Novelnber 4, 1909.</p>

<p>The law applicable to. the undisputed facts demanded the verdict.</p>

<p>Illegality; from city court of Nashville — Judge Buie. September 22, 1909.</p>

<p>Certiorari; from Montgomery superior court — Judge Martin. November 5, 1909. •</p>

<p>A sued B in a justice’s court, and pending the suit C garnished B, requiring him to answer what he owed A. B answered denying indebtedness to A, and C traversed the answer. A subsequently obtained a judgment against B, and A’s attorney instructed the justice to enter a judgment in favor of C against B for the amount of the judgment which A had obtained against B, and B paid C’s judgment. Held: (1) The payment by B of C’s judgment discharged him from liability on the judgment against him in favor of A. (2) The judgment in favor of A against B having been satisfied, the execution issued thereon could not be enforced against B for the benefit of A’s attorneys. (3) A’s attorneys having directed that judgment be entered in favor of C against B for the full amount of the judgment which A had recovered against B, they were estopped from enforcing A’s judgment against B for' fees.</p>

<p>Certiorari; from Floyd superior coipt — Judge Wright. November 9, 1909.</p>

<p>Action for damages; from city court of Floyd county — Judge ¡Hamilton. December 13, 1909.</p>

<p>•The circumstances corroborative of the testimony of an accomplice were insufficient to authorize the conviction of the defendant of the offense of burglary. While the law can not lay down a rule to measure the extent of corroboration necessary, still, where the only witness in a felony ease is confessedly an accomplice, the corroborating circumstances are not sufficient to dispense with another witness, unless they are such as to connect the defendant with the crime. It is not sufficient for a witness to corroborate as to the time, place, and circumstances of a transaction, if there is nothing except the statement of the accomplice to show any connection of the prisoners therewith.</p>

<p>Complaint; from city court of Douglas — Judge Boan. December 28, 1909.</p>

<p>Removal of cause; from city court of Zebulon — Judge Dupree. November 14, 1909.</p>

<p>Indictment for assault with intent to murder; from 'Bibb superior court — Judge Felton. January 25, 1910.</p>

<p>Indictment for unlawful sale of liquor; from Hall superior court — Judge Kimsey. February 4, 1910.</p>

. Action upon insurance policy; from city court of Hartwell — 1 Judge Pendleton presiding. O.n August 27,' 1908, Linder, as .president of the Hartwell Ice & Laundry Company, made a verbal application to Matheson, agent of the Queen Insurance Company, located at Hartwell, for a policy of insurance of $2,000 on the plant and machinery of the company.

<p>Complaint; from city court of Sylvester — Judge Williamson. February 25, 1910.</p>

<p>Lieu foreclosure; from city court of Sylvester — Judge "Williamson. February 21, 1910.</p>

<p>Indictment for abandonment of child; from Coffee superior court — Judge Parker. March 10, 1910. •</p>

<p>Accusation of cheating and swindling; from city court of Ash-burn — Judge Tipton. March 31, 1910.</p>

<p>In a homicide case it is permissible for the defendant to rely upon both defenses- — -that he did not kill the deceased, and that if he did kill him it was justifiable; and in such a case, where the defendant has not admitted that he was the person who did the killing, it is error for the court to charge the jury that the defendant “contends that he shot and killed the deceased, acting under the fears of a reasonable man.” The evidence of the defendant’s guilt being very slight, the error is of sufficient importance to justify a reversal.</p>

<p>1. Though, by reason of verbal inaccuracies, an indictment may be in part unintelligible, yet where, either by disregarding the unintelligible portion as surplusage, or by considering it along with the rest of what is said, the language of the indictment plainly, clearly, definitely, and accurately charges a particular offense, it is not subject to be quashed on demurrer.</p> <p>2. Under the evidence the jury were fully authorized to find the defendant guilty of voluntary manslaughter.</p> <p>3. Though it is the best practice for a tidal judge, in charging the jury upon the subject of the defendant’s statement, to follow the language of the statute on that subject literally, yet it is not reversible error for him to fail to do so if in fact the instruction given substantially covers the material elements of the statute and is otherwise fair to the defendant.</p> <p>4. Wherever a homicide is neither justifiable nor malicious, it is manslaughter; and, if intentional, is voluntary manslaughter.</p> <p>5. Neither the parol-evidence rule nor any rule forbidding oral testimony as to the contents of court records renders a witness incompetent to testify as to a dying declaration, though the words of the dead man may have been taken down in writing by some one present at the time the alleged statement was made.</p> <p>6. Slight or immaterial error in the admission or exclusion of testimony will not work a reversal of the judgment of the lower court refusing a new trial.</p> <p>7. It is not necessarily reversible error for a trial judge to refuse to give the exact language of a written request to charge, if he substantially covers the same matter in his general charge.</p> <p>8. The alleged newly discovered evidence was not sufficient to require a new trial.</p> <p>9. It is not unconditionally erroneous for a judge to instruct the jury that provocation by words, threats, menaces, and contemptuous gestures can in no case be sufficient to free the person killing from the guilt and crime of murder. Whether such a charge is erroneous or not depends on the facts of the ease, and on what else is said in the charge on the same subject.</p>

<p>Conviction of larceny from house; from Pierce superior court— Judge Edwards presiding. March 26, 1910.</p>

<p>Indictment for sale of liquor; from Walker superior court-judge Maddox. April 11, 1910.</p>

<p>To sustain a conviction of a violation of the “labor-contract act” of 1903 (Acts 1903, p. 90), tlie evidence must show that there was a fraudulent intent at the time when the money or other thing of value was obtained from the employer, and that the laborer failed to perform his contract or repay his advances, without good and sufficient cause. Hone of these facts were shown in this case. The evidence does not in any essential particular support the verdict.</p>

<p>The case is controlled by Oummings v. State, 110 Ga. 293.</p>

<p>Motion for new trial; from Pulaski superior court — Judge Martin. October 18, 1910.</p>

<p>Conviction of assault and battery; from Turner superior court ' — Judge Park. April 27, 1910.</p>

<p>Conviction of assault with intent to murder; from Laurens superior court — Judge Martin. April 16, 1910.</p>

<p>Conviction of assault with intent to murder; from Jasper superior court — Judge Lewis. April 20, 1910.</p>

<p>1. Although officers, whether with or without lawful warrant or other authority, have entered a person’s place of business and, by a violent and forcible search of the premises and seizure of property found therein, have obtained, over the protest of the owner, possession of articles tending to show his guilt of an offensej the evidence so obtained is admissible against him in a prosecution for the offense, as against the objeetion that it was obtained by an -unlawful search and seizure, and that, through the transaction, the defendant was compelled to furnish testimony tending to incriminate himself.</p> <p>2. While the Court of Appeals is a court of final review, yet the decisions of the Supreme Court are binding upon it as precedents. Whatever may be the personal views of the judges of this court upon any question, they are to be yielded, so far as they conflict with the decisions of the Supreme Court in letter or in principle.</p>

<p>Accusation of misdemeanor; from city court of Hartwell — ■ Judge Hodges. April 13, 1910.</p>

<p>No error of law is complained of, and there is some evidence to support the verdict.</p>

<p>Certiorari; from Pulton superior court — Judge Pendleton. November 11, 1909.</p>

<p>Conviction of manslaughter; from Mitchell superior court— Judge Park. February 14, 1910.</p>

<p>Complaint; from city court of LaGrange — Judge Harwell. October 2, 1907.</p>

<p>Action for damages; from city court of Floyd county — Judge Hamilton. November 10, 1909.</p>

<p>There being no legal brief of the evidence, and the errors assigned being dependent upon the evidence, the judgment is affirmed.</p>

<p>Two mortgages of different dates, held by the same mortgagee, covered the same three mules. The mortgagee foreclosed the senior mortgage and had the three mules seized under execution. An affidavit of illegality was interposed by the defendant in the mortgage fi. fa., and, upon his giving a forthcoming bond, the sheriff left the three mules in his possession. Subsequently the mortgagee foreclosed the junior mortgage and' had the sheriff to seize, under execution, two of the mules, take them from the possession of the defendant, and sell them; and the proceeds were applied as a credit on the junior mortgage fi. fa. Held, that the act of the mortgage creditor amounted to a satisfaction of the bond as to the production of the two mules, but the bond still remained binding as to one mule, and the sureties thereon were liable pro tanto for a breach thereof. ■</p>

Appeal; from Fulton superior court — Judge Bell. November 4, 1909. The Browder-Manget Company leased from the Georgian Company a storehouse, No. 23 West Alabama Street, Atlanta, for a term of 25 months, and the Browder-Manget Company subleased to George B. Edmondson space in the storehouse, 15 by 57 feet, for two years commencing April 1, 1909, and ending March 31, 1911.

<p>Indictment for assault with, intent to murder; from Fulton superior court — Judge Eoan. April 2, 1910.</p>

<p>Complaint; from city court of Atlanta- — -Judge Calhoun. July-10, 1909.</p>

<p>Accusation of misdemeanor; from city court of LaGrange — ■ Judge Harwell. January 4, 1910.</p>