Volume 8 — Georgia Appellate Reports

Action for damages; from city court of Amerieus — Judge Crisp. June 14, 1909.

<p>Action for damages; from city court of Sylvania — Judge Boykin. August 18, 1909.</p> <p>Hilton brought suit for damages against the Sylvania & Girard Railroad Company, alleging, in substance, that on July 5, 1906, he was the owner of five shares of capital stock of the defendant company, and was the holder of the stock certificate representing these shares; that this certificate had been originally issued to one Enneis, from whom he bought the stock, and who delivered the certificate to him; that 'on said date the plaintiff had an offer from a third person for the purchase of four of these shares; that the defendant had no by-law providing the mode in which transfers of stock should be made, but on the face of each of the stock certificates was printed the following: “Transferable only on the books of the corporation by the holder thereof, in person or by attorney, upon the surrender of this certificate properly endorsed;” that the plaintiff, in order to make delivery of the four shares, called upon the president of the defendant company to transfer this stock to his name, and stood ready to surrender the certificate properly endorsed, and made a formal demand for the transfer on the books of the corporation; that the defendant, through its president, without cause, refused to transfer the stock on surrender of the certificate, or to issue a new certificate, in lieu of the old one, and therefore the plaintiff was unable to deliver the shares he had sold; that he had previously accepted the offer made to purchase the stock, but that the proposed purchaser declined to take the stock, except uppn the condition that the transfer be made, and, the plaintiff not being able to have the transfer made by the defendant, the purchaser withdrew his offer; that the price offered for the four shares was $2,500, or $625 per share. By an amendment to his petition, to meet a special demurrer, the plaintiff alleged, that this offer was made to him by Demere & Hammond, brokers, of Savannah, Ga. He alleged that after the withdrawal of the offer, he sold the five shares, making diligent effort to sell at the best price obtainable, and obtained for them $1,000 less than he had been offered for the four shares. He sued for the special loss of $1,000 on the four shares, and for $625 as the value of the one share, which he alleged was worth that amount at the time he received the offer for the four shares, and when his demand for transfer was refused by the company. He based his right to recover the value of the one share on the ground that' the refusal of the defendant to transfer the live shares amounted to a conversion of the one share. On demurrer the court struck from the petition all allegations of damage by reason of the conversion of the one share of stock, and restricted the issue to the actual loss of profit in the sale, — alleged to be $1,000; to which ruling the plaintiff excepted pendente lite. The defendant contended that the offer of purchase of the four shares was not made bona fide, but was made through the procurement of the plaintiff, and was fraudulent. Tim jury returned a verdict for $100 in favor of the plaintiff, and he moved for a new trial; the motion was overruled, and he sued out this writ of error.</p> <p>It appeared, from the evidence on the trial, that in the year 1906 Hilton, with certain parties identified with him, together with one Morel and certain parties. identified with Morel, formed a corporation ‘known as the Sylvania & Girard Eailroad Company, the defendant in this suit; that there were two so-called factions in this company, known respectively as the Hilton and Morel factions, and that the capital stock of the company was $10,000, evenly divided between the two factions, neither having control. By agreement at the meeting for organization, the Morel faction was given the presidency and control of the directorate of the company, the Morel faction having three of the five directors. Later one of the directors died, and the Hilton faction applied for a writ of mandamus to compel a meeting of the stockholders, to be held for the purpose of electing a board of directors. This mandamus proeeeding was decided by the Supreme Court in favor of the applicants. See Sylvania & Girard R. Co. v. Hoge, 139 Ga. 734 (59 S. E. 806). At the next meeting of the stockholders for the election of directors the five shares of stock now in controversy were the cause of considerable dissension. Enneis, the original owner of the five shares, was one of the Morel faction. Becoming offended with Morel, he sold his five shares to Hilton; which gave the Hilton faction control of the corporation. Morel and his friends refused to recognize the sale from Enneis to Hilton as being valid, and at the next regular meeting of the stockholders, of which Morel was chairman, Hilton was not allowed to vote these five shares; their action being based on the contention that in the incorporation of the company it had been agreed between the two factions that Morel and his friends were to have indefinite control in the management of the company. Thereupon the two factions held separate meetings, electing separate officers and directors. Hilton and his friends brought an application for mandamus to compel Morel and his friends to turn over the.physical property of the corporation to them, and the Supreme Court decided in favor of the applicants, on the ground that the agreement between the two factions of the shareholders, to the effect that one of said factions, owning one-half of the corporation stock, should have the right indefinitely to name a majority of the directors of the company, and thus manage and control its affairs, was against public policy, and therefore void. See Morel v. Hoge, 130 Ga. 635 (61 S. E. 487, 16 L. R. A. (N. S.) 1136).</p> <p>The statement of the evidence up to this point, although not strictly relevant, illustrates to some extent the issues in the present case. Hilton proved substantially all the allegations of his petition. He proved positively and conclusively that he had been offered $3,500 for the four shares of stock, by the brokerage firm of Demere & Hammond, of Savannah; that this firm, in making the offer for the stock, represented Gr. Noble Jones; that the $3,500 was actually offered by Jones through the firm for this stock, and that this money was in a bank at Savannah, subject to the order of Hilton, on presentation of the certificate of the stock duly transferred on the books of the corporation; that the only reason why the sale was not consummated was the failure of the defendant, through its president Morel, to recognize as valid his purchase of the five shares of stock from Enneis, and to transfer the same to bis name on the books of the corporation, and that the purchaser refused to accept the stock certificate unless that transfer was made; that he had made, in person and by letter, repeated demands on Morel, 'as president of the company, to make this transfer, in order that he might consummate the sale, notifying Morel that he had had an oiler of sale for the stock and could not consummate the sale unless the transfer was made, and that his refusal to transfer would subject him to great damage and loss; that after the refusal of the company to make the transfer, and the refusal of the proposed purchaser to accept the stock without the transfer, he used all due diligence to sell the same, even offering it to Morel himself, and that the best price he could get for it was $1,500. The defense relied upon, that the sale to Jones was not a bona fide sale, but was fraudulent, was not sustained by any evidence, direct or circumstantial.</p>

<p>Action for damages; from city court of Macon — Judge Hodges. October 16, 1909.</p>

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

<p>Accusation of gaming; from city court of Griffin — Judge Flynt. October 8, 1909.</p>

<p>Action for damages; from city court of Nashville — Judge R. Eve presiding. December 4, 1909.</p>

<p>Complaint; from city court of Kichmond county — Judge Eve. November 30, 1909.</p>

<p>In eases in a justice’s court, where an appeal will lie, the appeal can be made from a confession of judgment without any formal entering up of judgment by the justice on the confession.</p>

<p>Conviction of manslaughter; from Earl}' superior court — Judge WorriU-. January 21, 1910.</p>

<p>Accusation of misdemeanor; from city court of Savannah — Judge Freeman. January 8, 1910.</p>

<p>Accusation of sale of liquor; from city 'court of Montieello— Judge Thurman. January 19, 1910.</p>

<p>The evidence authorized the conviction of the defendant, and the assignments of error were not supported by the answer of the trial judge; consequently there was no error in overruling- the certiorari.</p>

<p>, Complaint; from city court of Quitman — Judge McCall. December 15, 1910.</p>

<p>Appeal; from Greene superior court — Judge Lewis. February 10, 1910.</p>

<p>Certiorari; from Greene superior court — Judge Lewis. January 28, 1910.'</p>

<p>1. Wlien a statute confers upon the judge of a court jurisdiction, to try the facts, unless jury trial be demanded at the return term, no subsequent demand for a jury trial can thereafter divest the judge of this juris- • diction, though in the meantime the case has been tried once and a new trial granted. The statute relates to cases, and not to trials.</p> <p>(а) The jurisdiction to try the facts in such cases attaches to the judge officially, and may be exercised by any judge lawfully presiding in the court.</p> <p>(б) The privilege of trial by jury may be made dependent upon a timely demand or other conditions, which, though onerous, do not “totally prostrate the right or render it wholly unavailable.”</p> <p>(c) Unless the statute makes it mandatory for the judge to try the case where a jury is not demanded, he has the discretion, nevertheless, of referring the facts to a jury. There was no timely demand for a jury trial in the present case, and the judge did not abuse his discretion in refusing it.</p> <p>(d) The jurisdiction conferred by statute upon the judge of a city court, to try the facts unless jury trial be demanded in a designated time and way, is to be differentiated from the somewhat similar power sometimes conferred upon judges by stipulations of parties, as to particular trials in which, but for their consent, the judge would have no jurisdiction to pass upon the facts.</p> <p>2. The verdict is not so wholly without evidence to support it as to justify this court in. setting it aside.</p>

<p>1. Where a defenda.nl in a distress warrant has replevied the properly, the process is converted into an ordinary action for rent, and a motion to dismiss because of an insufficiency of description in the entry of levy will not lie.</p> <p>2. Mere irregularities in the selection of the jury in the justice’s court will not authorize the grant of a new trial, where it is apparent that no injustice or prejudice resulted to the complaining party.</p>

<p>Complaint; from city court of Tifton — Judge Eve. April 4, 1910.</p>

<p>1. After a plea of set-off is filed, tlie plaintiff can not dismiss his action so as to interfere with the plea, unless by leave of the court, on sufficient cause shown and on terms prescribed by the court. Civil Code, § 3754. A plea of set-off is a cross-action, and after it is filed the defendant is entitled to prove his ease, and, if the evidence authorizes it, he is entitled to a judgment. A plaintiff can not defeat this right by dismissing the original action in vacation, nor can the court on its own motion dismiss or nonsuit the case, and thus deprive the defendant of the- benefit of his cross-action. Lewis v. Veal, 70 Ga. 649.</p> <p>2. The defendant having been served in the county in which the suit was filed, and having filed, an answer' pleading a set-off, without protest as to the jurisdiction of the court, and there being no evidence to the effect that the defendant was not a resident of that county, the plaintiff had no ground for dismissing its suit or for complaining- of the judgment rendered.</p> <p>3. It appearing that the plaintiff was notified that its ease, in which the plea of set-off had been filed, had been set for trial upon' the calendar for a certain day, and was, by the notice, informed that the defendant was insisting upon this plea of set-off, and it further appearing that neither the plaintiff nor its counsel (though the plaintiff had more than one attorney) was present to prosecute the action, and the only reason assigned by the plaintiff for failure to be present being the absence of one of its attorneys, and the showing for his absence being insufficient, held, that the trial judge did not err in proceeding with the trial, nor in refusing to grant a motion for a new trial, based upon the ground that a continuance should have been granted. '</p>

<p>Indictment for attempt to wreck railroad train; from Montgomery superior court — Judge Martin. April 30, 1910.</p>

<p>]. The court’s statement of the defendant’s contentions was more detailed, specific, and comprehensive than was required' under the issue raised by the answer, but it was' for that reason favorable rather than prejudicial to her interests.</p> <p>2. The fact that nicety of verbal criticism might suggest the use of a - particular word, more appropriate under the circumstances than the special word or phrase employed by the judge in his charge, is not 1 ground for new trjal, where, comparing the complaint with the context, it is apparent that the sense in which the inappropriate word was used is unmistakable, and the instruction (as it must have been understood by the jury) is pertinent and correct.</p> <p>3. As between the seller and the purchaser the delivery of the bill of lading amounted to a delivery of the quantity of guano called for by the bill of lading. A bill of lading is symbolic of the goods shipped. For many purposes it stands as representative of the shipment itself, and title to the goods may be transferred by the owner by means of a transfer of the bill of lading as long as the goods are in the possession of 'the carrier. There is an exception in some instances in favor of the consignor’s right of stoppage in transitu, but generally the delivery of a bill of lading by the person who, according to the terms of the bill, is entitled to the goods will transfer his title.</p> <p>4. A party can not complain of an instruction which is favorable to his contentions, even though the charge may not be nicely adjusted to the precise issue- presented by the pleadings.</p> <p>5. While the right of subjecting a witness introduced by the opposite party to a thorough and sifting cross-examination should not be denied or abridged, yet where the fact sought to be elicited by the question which the court refused to alloW is afterwards proved, the error becomes harmless.</p>

<p>Complaint; from city court of Waynesboro — Judge Hammond presiding. July 30, 1909.</p>

<p>Complaint; from city court o£ Cartersvillc — Judge Foute. October 23, 1909.</p>

<p>1. Where, on reviewing a judgment of nonsuit, the Supreme Court has rendered a decision which could not have been correctly rendered, as rendered, if. a certain insistence of one of the parties had been considered well taken, it will, in future trials of the case, be construed as a decision against that insistence, although the matter is not mentioned in the course of the opinion.</p> <p>2. Where the vendor of standing timber sells it to another, and in the conveyance makes a stipulation by which the right to cut the timber is to terminate upon the expiration of three years from the time the vendee or his assign begins to cut it, the three-year period will not be started to funning by the act of an outsider in entering upon the lands and cutting a portion of the timber without the consent of the vendee or his assign; aliter if the person doing the cutting has authority to do so from the then holder of the title to the timber under the conveyance mentioned.</p> <p>(a) In a case, like that just mentioned, if the person who wrongfully did the euttjng should, more than three years thereafter, purchase the timber rights from the person who owned them at the time of the unauthorized cutting, his prior trespass, in having entered upon the timber and cut a portion of it without authority, would not operate to forfeit the title to the timber, on the theory that the period of three years had expired since he (the person thus acquiring' the title) had commenced to cut it.</p> <p>3. Though standing timber is realty and a conveyance of standing timber should be in writing, yet where such a conveyance contains a clause whereby the vendee’s right to cut the timber is to expire within a certain time after the happening of a designated act, the vendor may orally waive his right to insist upon 'counting the time of his limitation as-</p> <p>running- because of the happening of an act which, but for his waiver, might be considered as the starting point.</p> <p>4., The plaintiff in trespass recovers on the strength of his own title, and not on the weakness of the defendant’s. The alleged error in respect to the admission of testimony in regard to the asserted title of the defendant in this case was immaterial.</p>

<p>Indictment for carrying concealed weapon; from Marion superior court — Judge Gilbert. December 17, 1910.</p>

<p>Motion to set aside judgment; from city court of Floyd county —Judge Hamilton. September 14, 1910.</p>

<p>Certiorari; from Franklin superior court — Judge Brand. December 16, 1910.</p>

<p>1. Where one person orally sells to another merchandise of greater value than $50, with the understanding that it is to he a cash transaction, and the seller, in pursuance of the direction of the purchaser, weighs up the articles and puts them aside in a designated portion of his storeroom or warehouse, whore they are to be turned over to" the purchaser’s drays, and the purchaser refuses to send for and pay for the articles: held, that there is no such acceptance and receipt of the merchandise as is contemplated by the statute of frauds (Civil Code of 1895, § 2093, par. 7), to make the transaction enforceable under the statute.</p> <p>2. Even if, in such a case, the expending of time and labor by the seller in causing the articles to be weighed and set aside amounted to such part performance as to give the seller any rights against the purchaser, it was not adequate to convert the transaction into an executed sale, so as to authorize suit on open .account for the agreed price of the goods sold.</p>

<p>Action for damages; from city court of Washington — Judge Wynne. January 22, 1910.</p>

Affidavit of illegality; from city court of Plazleliurst — Judge Bennett. January 11, 1910. McMillan brought suit against Denton, Pittman & Co., a firm composed of J. M. Denton, W. R. Pittman, and J. D. Pittman, and against the individual members named. Process was directed to the firm and the individual members, except that it gave one of the names as J. H. Denton, instead of J. M. Denton. Personal service was made upon J. M. Denton.

<p>Complaint; from city court of Griffin — Judge Clark presiding. January 5, 1910.</p>

<p>Trover; from city court of Miller county — Judge Busli. February 26, 1910.</p>

<p>Distraint; from city court of Cordele — Judge Strozior. December 22, 1909.</p>

<p>1. Possessory warrant will lie for the recovery of property wrongfully taken from the plaintiff’s possession, though the defendant, at the time of the issuance of the writ, has not personal, physical possession of it, if it be in his power, custody, or control, or in the possession of some agent or custodian holding- it for him or in collusion with him. When the property itself is before the court, the defendant who denies that he is in possession of the property is in no just position to complain if the court awards the possession to the plaintiff; the rights of no third person being involved.</p> <p>2. Possessory-warrant procedure is summary. The judge of the superior court has plenary jurisdiction on certiorari, in such eases, to settle all disputed issues of fact and to render final judgment.</p>

<p>Appeal; from Turner superior court — Judge Park. March 18, 1910.</p>

<p>Accusation of larceny from house; from city court of Blakely— Judge Jordan. March 21, 1910.</p>

<p>Action for damages; from city court of Fitzgerald — Judge "Wall. March 14, 1910.</p>

<p>Warrant to eject intruder; from city court of Quitman — W. H. Lane Jr., judge pro hac vice. April 28, 1910.</p>

<p>Indictment for cruelty to animal; from Wayne superior court— Judge Conyers. April 19, 1910.</p>

<p>Indictment for 'assault with intent to murder; from Walker superior court — Judge Maddox. May 4, 1910.</p>

<p>Accusation of selling cocaine; from city court of Richmond county — Judge Eve. May 17, 1910.</p> <p>The accusation charged that on the 15th day .of May, 1909, the defendant did, “by himself, servants and agents, sell, furnish, and give away cocaine, the same not having been sold, furnished, or given away upon the original written orders or prescription of a lawfully authorized practicioner of medicine, dentistry, or veterinary medicine, contrary to the laws of said State,” etc. The demurrer was on the ground that the accusation fails to set forth any offense, and also upon ^the following grounds: “Because the said accusation charges the defendant in one count with two offenses, to wit, having sold cocaine by himself and also by his agents and servants; further because said accusation fails to say who were the servants and agents by whom he sold the said cocaine, or where jn said Richmond county the said sale took place, or to whom said sale or furnishing was made; further because he is charged in an alternative with having either sold, furnished, or given away said cocaine, and is not charged with having done any one of the acts specifically; or indeed all of said acts, but is charged with having done either one or the other, without specifying which.”</p> <p>The grounds of the motion for a new trial, so far as approved by the trial judge, were: (1) The verdict is contrary to la(w. (2) The court erred in charging in the language quoted in the foregoing decision, as to the defendant’s statement to the jury. (3) “The court failed to charge the jury that evidence showing the sale of cocaine by one of the defendant’s agents or servants should not be used to convict the defendant himself, unless it is further shown that the defendant in some way authorized, had knowledge of, ratified, or connived at, or aided and abetted his said servant. In view of the language of the accusation, and of the charge therein that the defendant, ‘by himself, agents and servants,’ did sell cocaine, and in view of the evidence freely introduced by the State of sales not made by the defendant, but by his servants, it was imperative for the court to charge the principle óf law above stated; this was the gist of the case, and the failure so to charge must have resulted in doubt, confusion, and misconception on the part of the jurors.”</p>

<p>Indictment for car-breaking; from Fulton superior court-judge Bell. April 30, 1910.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. May 16, 1910.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. July 6, 1909.</p>

<p>Accusation of gaming; from city court of Swainsboro — Judge Mitchell. March 5; 1910.</p> <p>The evidence for the State consisted of the testimony of two witnesses, who testified, that they were looking for a horse thief, and at night went to a certain shanty, where, on looking through cracks, they saw, by the light of a small fire, the defendant Kemp and four other men playing cards, and heard what they supposed to be money, but did not see any money; one of the witnesses thought he heard money hitting the floor; they heard one of the men say something about dropping a quarter under the. house. The players, on hearing the‘witnesses, stopped, and the witnesses then broke open the door, went in, and arrested the men, but found' no money. They heard no betting, and did not know that the men were gambling.</p>

<p>Action for damages; from city court of Savannah — Judge Freeman. July 27, 1909.</p> <p>E. F. Kennedy sued the Mayor and Aldermen of the City of Savannah for damages on account of personal injuries. The suit was filed on April 19, 1909. On the trial the court excluded from evidence a • written notice of the plaintiff’s claim for damages, served on the defendant corporation on March 1, 1909, which was offered as.evidence by the plaintiff, the defendant objecting to its introduction, on the ground that the notice was not a compliance with the act of the General Assembly approved December 20, 1899, as to notice of claims for damages against municipalities (Acts 1899, p. 74); and at the conclusion of the evidence the court granted a nonsuit, on the defendant’s motion, on the ground that the plaintiff had failed to show compliance with this statute. The notice offered in evidence was as follows; “Savannah, G-a., Mch. 1st, 1909. The Mayor and Aldermen of the City of Savannah, City. Dear Sirs; Mr. E. F. Kennedy has employed me to represent him in a claim which he has against you for personal injuries. He was injured on the 18th of January, 1909, by a fall from the steps leading from the Strand to Factors Walk, opposite HeckerJones Jewel Milling Company place, 220-222 Bay street, West. He fell because of the defective steps. He was in bed two weeks, incurred a doctor’s bill of $150.00, hospital fees of $30.00, and is permanently injured, having been ruptured. He lays his damages at $5,000.00. Please advise us if you are willing to make settlement of this claim without having suit brought. Very respectfully, Edmund H. Abrahams.”</p>

<p>Complaint; from city court of Atlanta — Judge Eeid. June 16, 1910.</p> <p>cited 2 Ga. App. 349, 5 Ga. App. 340; 71 Conn. 597, s. c. 44 L. E. A. 32Í, and note.</p> <p>cited 73 Ga. 295 (la), 301 and eit.; Civil Code of 1895, § 5437.</p>

<p>Action for slander; from city court of Waynesboro — Judge Hammond presiding. August 7, 1909.</p>

<p>1. A motion for a new trial is not complete before the brief of evidence lias been approved. Where the court in its order specifically limits the time within which the brief of evidence must be presented, and no brief is presented within that time, it is not error to dismiss this incomplete and defective motion for a new trial.</p> <p>2. A movant for a new trial is not confined to the record prepared by the stenographer, or dependent upon it, for the preparation of the brief of evidence necessary to complete his motion; and the fact that the stenographer may have failed to make a copy of the testimony submitted .at the trial, when offered as an excuse for counsel’s non-performance of his duty to prepare a brief of evidence, is entitled to no more value than the court sees proper to give it under the circumstances. The duty of preparing the brief of evidence is upon the movant, and is not dependent upon whether a stenographer was or was not engaged to take the testimony in the ease. Where, by an order passed in term time, the hearing of the motion for a new trial was fixed for a day certain, and the time granted for the preparation and presentation of the brief of evidence necessary to complete the motion was expressly limited to that day, and no brief of evidence was prepared according- to the terms of the order or within the time allowed therein, it was especially not error at a later day to dismiss this motion for a new trial, instead of granting a continuance, when it was admitted that the brief of evidence had not even then been prepared. This is true although the stenographer had not copied the notes of the testimony, and the judge who presided in the trial of the ease had died. The fact that there was no judge qualified to hear the-motion or to extend the time for hearing, upon the day on or before which a brief of evidence was required to be presented, afforded ño excuse for the movant’s negligence and non-compliance with the terms of the original order of the court.</p>

<p>Motion for new trial; from Cobb superior court — Judge Morris. January 10, 1910.</p>

<p>Indictment for burglary; from '.Floyd superior court — Judge "Wright. December 28, 1909.</p>

<p>Complaint; from city court of Waynesboro — Judge Davis. January 19, 1910.</p>

<p>Appeal; from Whitfield superior court — Judge Eite. January 19, 1910.</p>

Accusation of adultery; from city court of Carrollton — Judge Beall. February 24, 1910. The accused was convicted, of adultery with Lula Yeoman. From the .evidence it appeared that she was living apart from her husband and at the defendant’s house, where she w;as employed to cook, wash, iron, do household work, and wait on his wife, who was an invalid. While she was so employed she gave' birth to children.

<p>Indictment for larceny; from Douglas superior cour.t — Judge Edwards. January 29, 1910.</p>

<p>Accusation of cheating and swindling; from city' court of Ash-burn — Judge Tipton. February 21, 1910.</p>

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

<p>Action for damages; from city court of Sandersville — Judge Jordan. March 30, 1910.</p> <p>cited 56 Ga. 501; 88 Ga. 427; 125 Ga.S77.</p> <p>cited 2 Ga. App. 323, and cit. '; 3 Ga. App. 642, and cit.</p>

<p>Accusation of carrying concealed weapon; from city court of Monticello — Judge Thurman. May 16, 1910.</p>

<p>' Indictment for manslaughter; from Floyd superior court — J udge Maddox. May 21, 1910.</p>

<p>Misdemeanor; from city court of Ogletliorpe — Judge Greer. May 31,1910. -</p>

<p>Misdemeanor; from city court of Sylvester — Judge Williamson. May 17, 1910.</p>

<p>Accusation, of cheating and swindling; from city court of Hall county — Judge Looper. June 20, 1910.</p>

<p>Accusation of gaming; from city court of Sandersville — Judge Jordan.' May 23, 1910.</p>

<p>Indictment for larceny after trust; from Habersham superior court — Judge Kimsey. June 1, 1910.</p>

<p>Indictment for sale of liquor; from Banks superior court— Judge Brand. April 23, 1910.</p>

<p>Indictment for arson; from Cobb superior court — Judge Morris. June 1, 1910.</p>

<p>“The lien of an attachment is created by the levy;” and as'between attachments the one first levied takes precedence. This applies to the amount claimed under the original attachment. As to this amount the lien of the attachment is not lost by an amendment to the attachment, lawfully made, subsequent to the levy. If, by amendment, a sum is added to that claimed by the original attachment levied, the lien as to this additional amount will not take precedence of an intervening attachment or intervening lien creditor.</p>

<p>Indictment for declaring unlawful dividend; from Bibb superior court — Judge Whipple. September 23, 1909.</p>

<p>Action on insurance policy; from city court of Polk county— Judge Irwin. December 8, 1909.</p>

<p>1. When the excerpts from the charge to which exceptions are taken are considered in connection with the instructions of the trial judge as a whole, the assignments of error are not meritorious, and afford no ground for reversing the judgment refusing a new trial.</p> <p>2. While one of the instructions to which the defendant excepted, in reference to latent defects, was not exact in the abstract, it presented the defendant’s contentions concretely more favorably than it was entitled to liave them presented, and was adjusted to the undisputed evidence in the ease. The specific objection made becomes immaterial and valueless, in view of the explicit instruction that if the jury believed that after the defendant received the goods, it discovered latent defects and notified the plaintiff of their existence, and insisted that the same should be remedied or taken account of, then and in that event any partial payments made by the defendant to the plaintiff would in no sense be a waiver or an estoppel as to the rights of the defendant to insist upon its plea of partial failure of consideration.</p> <p>3. The evidence authorized the verdict, and there was no error in refusing a new trial.</p>

<p>Action for damages; from city court of Macon — Judge Hodges. April 24, 1909.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. April 26, 1909.</p>

<p>The jury were properly instructed by the court, and the evidence authorized the inference that the agent who sold the goods was authorized to collect therefor. There was, therefore, no error in refusing a new trial.</p>

<p>Certiorari; from Bibb superior court — Judge Felton. June 10, 1909.</p>

<p>1. “Tlie term ‘nominal damages,’ like ‘exemplary damages,’ is purely relative, and carries with it no suggestion of certainty as to amount,” while it generally refers to1 a trivial sum awarded. Where a mere breach of duty or infraction of right is shown, with no serious loss sustained, it is apparent that this trivial sum might, according to the circumstances of each particular ease, vary almost indefinitely. “Tn some cases a very small amount might constitute the trivial sum contemplated by the term ‘nominal damages;’ in others a much larger amount might measure down to the same standard of triviality. It would depend largely upon the vastness of the amount involved what sum would be considered trivial.” A recovery may be classified as coming under the definition of nominal damages where the violation of a right is shown, substantial damages claimed, and some actual loss proved, and yet the damages are not susceptible of reasonable certainty of proof as to their extent.</p> <p>2. In an action brought to recover $3,000 damages from a telegraph company for failure to transmit a message, where the undisputed evidence shows a gross violation of the company’s duty to transmit the message, a verdict for $250, approved by the trial judge, will not, in the absence ' of anything to justify a suspicion of prejudice or bias, be set aside by this court as excessive, even though the finding was treated in the lower court as one of nominal damages only.</p>

<p>Affidavit of illegality; from city court of Sylvester — Judge Williamson. ' August 23, 1909.</p>

<p>Certiorari; from Houston superior court — Judge Eelton. September 8, 1909.</p>

<p>Complaint; from city court of Dublin — Judge It. W. Jordan presiding. September 14, 1909.</p>

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

<p>Indictment for assault and battery; from Early superior court-judge Worrill. November 22, 1909.</p>

<p>1. Upon the trial of a plea in abatement, filed upon the ground that the plaintiff had reinstituted his action after dismissal without payment of the costs due in the first suit, it appeared that the plaintiff went to the. clerk of the court in which the suit was pending and paid what the clerk said was the amount of the costs and. took a receipt for it, and was not informed of any additional costs being due until after the second suit had been brought, when, for the first time, it appeared that there was a small item of costs which had not been included in the bill so rendered by the clerk. Held, that a finding against the plea in abatement was authorized, there being nothing to impeach the good faith of the transaction. ■</p> <p>2. Tlie plaintiff took from one who was in fact his cropper an instrument reciting that the relation between them was that of landlord and tenant, and creating a lien in the sum of $300, for supplies to be furnished, and this was transferred by tlie plaintiff to the defendant, who, however, was cognizant of the actual relation existing between the parties. Tlie cropper not only traded out with the defendant the '$300 mentioned in the written lien, but also made with him an additional account of some $200. In the fall and before there had been a final division of the crops, the cropper delivered to the defendant enough of the crops to amount to more than $300, and additionally delivered to him the three bales of cotton for which the plaintiff sued. Held, that as the cropper had delivered to the defendant more than enough of the crops to satisfy the amount of the lien stated in tlie instrument in which the relationship of landlord and tenant was recited, and as the defendant was not actually otherwise deceived as to the true relationship existing between the landlord and tlie cropper, tlie plaintiff was not estopped from asserting title to the three bales of cotton in dispute as being his by virtue of tlie relationship of landlord and cropper.</p> <p>(a) The plaintiff was not estopped from showing the true relationship existing between him and liis cropper by reason of the fact that he had sued out a distress warrant alleging tlie cropper to be a tenant, it appearing that this distress warrant was sued out under a misapprehension and was dismissed when tlie mistake was discovered. While the fact of the suing- out of tlie distress warrant was in tlie nature of an admission on the part of the plaintiff, it was not a conclusive or unexplainable admission.</p> <p>3. The verdict appears'to be correct, under tlie evidence.</p>

<p>Complaint; from city court oE Moultrie — Judge McKenzie. November 12, 1909.</p>

Action for damages; from city court of Savannah — Judge Freeman. November 1, 1909. Willie Moore, by his next friend, brought suit against the railroad company for damages on account of personal injuries.

<p>Action fox breach of contract; from city court of Floyd county— Judge Hamilton. December 13, 1909.</p>

<p>1. There was no error in overruling the demurrer. An indictment for robbery, which alleges that the accused “did unlawfully, and with force and arms, wrongfully, fraudulently, and violently take from the person of Bob White ten dollars, the property of the said White, without the consent of the owner, by force and' intimidation,” etc., clearly and sufficiently charges the offense of robbery. The charge is substantially in the language of section 151 of the Penal Code of 1895, defining the offense. The word “fraudulently,” in the connection in which it is used, implies an intent to steal.</p> <p>2. The evidence authorized the conviction of the defendant, and there was no error in refusing a new trial. .</p>

<p>Action for damages; from city court of Savannah — Judge Freeman. January 17, 1910.</p>

<p>Indictment for larceny; from Bibb superior court — Judge Felton. January 27, 1910.</p>

<p>Accusation of assault and battery; from city court of Franklin— Judge Loftin. February'!6, 1910.</p>

<p>Certiorari; from Hancock superior court — Judge Lewis. September 27, 1909.</p>

<p>Certiorari; from Glynn superior court — Judge Conyers. February -8, 1910.</p>

<p>The county authorities in this State have the power to install telephones or to cause them to be installed at court-houses, jails, pauper farms, and other places where they may be needed in the conduct of such matters and things as the counties are authorized to support and maintain by taxation.</p>

<p>Certiorari; from Early superior court — Judge Worrill. April 16, 1910.</p>

<p>Accusation of misdemeanor; from city court of Sparta — Judge' Moore. May 20, 1910.</p>

<p>Certiorari; from Eulton superior court — Judge Pendleton. May 18, 1910.</p>

<p>1. The superior courts of this State have jurisdiction, conferred by the constitution, to correct errors in all inferior judieatories by writ of certiorari. A judgment of the city court overruling a motion for a new trial in a criminal case is -a final judgment from which certiorari will lie to the superior court; and this is true although the act cr.eating the city court provides that a writ of error may be sued out directly from that court to the Supreme Court.</p> <p>21 Where there is a timely request to the judge to charge the jury in writing, he must copy into his charge any statute which he submits to the jury, or he must read to the jury the statute verbatim, “noting accurately in his written charge the statute so read.” If the notations made in the written charge leave in doubt what statute the judge did read to the jury, or what portion of the statute was so read, the mandatory requirements of the law are not complied with, and if the evidence does not demand the verdict, a new trial will be granted.</p>

<p>Indictment ior manslaughter; from Worth superior court— Judge Park. June 15, 1910.</p>

<p>There was no erroY, under the facts recited in the opinion, in the order dismissing the motion for a new trial, nor in refusing thereafter to reinstate the motion.</p>

<p>Certiorari; ’ from Fulton superior court — Judge Bell. April 14, 1910.</p>

<p>Levy and claim; from city court of Bainbridge — Judge Harrell'. My 1, 1909. ■</p>

<p>¡Complaint; from city court of Greenville — Judge Revill. August 27, 1909.</p>

<p>■Attachment; from city court of Tifton — Judge Eve. July 34, 1909.</p> <p>The note sued on was for $75, and was payable to Parker & Hook, the plaintiffs. The plea referred to in the first division of the decision was as follows: “And defendants, for further plea in said cause, deny that they are indebted to the plaintiffs in any sum whatever, but on the contrary, the plaintiffs are indebted to these defendants in the sum of $75. Defendants say that the note made by them to the said Parker & Hook was given for the difference in a mule trade, that the mule that the defendants sold the plaintiffs was worth $135, and that the mule that the plaintiffs sold the defendants was not worth more than $50, and that said note was given for the difference in the value of said mules. The defendants say that the plaintiffs were expert in handling mules and horses, and knew the value, and, relying upon the representations made by the plaintiffs, the defendants were led to believe that the mule that they sold to the plaintiffs was perfectly worthless because of a defect in one of his limbs, it having a bruised place on its right hind leg, when in fact the bruised place on said mule’s leg was only temporary and not permanent. The plaintiffs represented that the mule that they sold to the defendants was in every way sound and able to do fine work, when in fact said mule was not in good health, it being lame and unable to graze from the ground without serious difficulty; nor was it able to do heavy work, it being lame, and unknown to defendants. Defendants say that they have no experience as to the value of live stock, and did not know the real value of the mule plaintiffs' sold to them and the mule that defendants gave them in exchange. Relying upon these representations the defendants did execute and deliver their note for the difference in said trade, when in fact the representations were false and known to be false at the time they were made, and also unknown to the defendants.”</p> <p>Cited by counsel: 4 Ga. App. 351; 3 Ga. App. 586; 118 Ga. 918; 88 Ga. 791; 135 Ga. 167; 5 Ga. App. 847.</p>

<p>The justice of the peace did not err in dismissing the suit. The account attached to the summons was upon its face harred by the statute of limitations; and it was not verified by the affidavit of the plaintiff, so as to require the court to continue the case until the next term of the court. The judge of the superior court erred in sustaining the certiorari.</p> <p>(a) In the absence of a contract to the contrary, the landlord’s right to collect his part of the crop, as well -as to demand payment for any sup- • plies furnished by him to aid in making the crop, accrues upon the maturity of the crop, and is not postponed until the end of the year.</p>

<p>1. There was no error in refusing a new trial.</p> <p>2. Railroad companies have the right to exact the train rate from passengers who, without good and sufficient reason, have failed to purchase tickets, and the consequent right to eject one who refuses to pay the train rate. But the conductor or other agent of the railroad company who passes upon the merits of the excuse offered hy the passenger for .not having provided himself with a ticket, or refuses to hear.the excuse, does so at the peril of the company.</p> <p>3. One who hoards a train intending to pay for his passage therein is not a trespasser, even though he he in error as to the amount due for his fare.</p> <p>4. The defects in portions of the charge upon which error is assigned are cured hy fuller instructions in other parts of the general charge.</p> <p>5. The evidence in hehalf of the railway company would have authorized the jury to relieve it from liability, but -the plaintiff’s evidence in conflict therewith authorized the verdict rendered in his favor.</p>

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

<p>1. In refusing to strike that portion of the defendant’s plea which set up that the death of the plaintiff’s child was the fault of. the plaintiff herself in negligently and carelessly permitting the child' to pass over the foot-bridge without the guidance of some other person, well knowing that the stream at that time was very much swollen and in a dangerous condition, and that the plaintiff aided and contributed to her own injury by allowing the child to enter upon said foot-bridge without some other person to guide the child and prevent her from falling, the court did not err, inasmuch as the defendant had the right to introduce evidence to show, if it could, that the mother was present, or at least in sight, at the time the child was drowned.</p> <p>2. While a mother who is compelled to earn her own living by her labor may not be required, in the exercise of due diligence, to be present at . all times and personally overlook the care of her children, still she is responsible for the exercise of ordinary care for the safety of her child while the child is in her presence.</p> <p>3. While isolated excerpts from the judge’s charge to the jury, to which exception is taken, may seem inaccurate, the charge, construed as a whole, was extremely favorable to the contentions of the plaintiff in error, and fairly and fully presented the law applicable to the issues presented by the pleadings and evidence.</p> <p>(a) Construed together-, all of the instructions of the court tended to impress the jury that if the death of the child was due to a defect in the bridge of which the county authorities had knowledge or notice, the plaintiff’s right of recovery could not' be defeated.</p> <p>(b) The instruction to the effect that the plaintiff was not entitled to recover unless the county authorities knew of the defect in the bridge, or unless this defective condition had existed for such a length of time that knowledge thereof on the part of the county authorities would be presumed, was correct. Under the evidence adduced, and, when taken in connection with the further instruction that if the bridge was originally negligently or defectively constructed, and any defect in the bridge was the cause of the child’s death, the county would be liable, the charge afforded no ground for complaint.</p> <p>(o) Whether the omission to replace guard-rails upon the bridge, if guardrails were previously there, or the failure to put guard-rails upon the bridge in the first instance, was or was not negligence on the part of the county authorities, was a -fact to be determined by the jury from the circumstances of the case.</p> <p>4. In any case in which it is contended that the circumstances of the transaction call for the application of the doctrine of res ipsa loquitur, the prerogative of the jury to judge whether the circumstances of the case itself are such as to raise an inference of negligence and to fix the liability upon the defendant for the act complained of (unless a satisfactory explanation is offered by him) is exclusive, and not reviewable. The jury were authorized in the present case to find that neither the condition of the bridge nor the other circumstances in the case placed upon the defendant the burden of proving how the casualty resulted and that it was due to tlie negligence of the county.</p> <p>5. It is the duty of the proper county authorities to construct and maintain bridges across streams in a workmanlike and proper manner, so that any person may use them with safety, in ordinary travel, but this duty is not one of extraordinary care and diligence, nor does its exercise extend to extraordinary occasions, beyond the ken of general experience. The law does not make the county authorities insurers of the safety of any of those who use bridges.</p> <p>6. It was not error to exclude from tlie consideration of the jury nails taken from the bridge in 1909, since the question at issue was the condition of the bridge in 1908, more than a year previous.</p> <p>7. In the absence of any evidence as to the value of the child’s services, it was not error to omit to instruct the jury upon the measure of the plaintiff’s recovery upon that count of the petition.</p> <p>8. It was not error to instruct the jury in substance that even though both the plaintiff and the defendant might be negligent, the plaintiff’s right to recover would not be defeated if the death of the child was caused by the negligent condition of the bridge, and the child in crossing was using as much care as would be used by a person of full discretion. The charge of which complaint is made presented one of the strongest contentions of which the evidence in behalf of the plaintiff was susceptible.</p> <p>9. Hearsay testimony is permissible in explanation of conduct, or, as in this case, for the purpose of identifying arid locating objects referred to in the testimony.</p>

<p>1. In order to let in a meritorious defense, tlie maker of a promissory note who is sued thereon may show that the plaintiff is not a bona fide holder of the note.</p> <p>2. The maker of a promissory note which has been transferred by one bank; ing corporation to another (for the purpose of liquidating the affairs of the corporation originally named in the note as payee) can not defend upon the ground that the contract whereby the note was transferred was ultra vires. Generally, one who is not a party to a contract can not attack it as ultra vires.</p> <p>3. Any payments made upon an usurious debt, even though the suit be upon notes given in renewal thereof (but without purging out the usury), are to be deducted from the principal debt and the lawful interest.</p> <p>4. Interest may be collected monthly at the option of the parties, if only interest is collected and no part of the principal is paid, and if the interest contracted to be paid and actually collected does not exceed the rate of eight per cent, per annum.</p> <p>5. The court erred in directing the verdict for the amount returned, though . the evidence demanded a verdict for the plaintiff for a smaller amount. For this reason this court will direct a final disposition of the case.</p>

<p>Appeal; from Jeff Davis superior court — Judge Parker. September 13, 1909.</p>

<p>Complaint; from city court of Bainbridge — Judge Harrell. September 24, 1909.</p> <p>The action was upon promissory notes executed by the defendant to the Swift Fertilizer Works, the plaintiff. The defendant’s plea, which, on general demurrer, the court struck, admits the execution of the notes, but denies his liability on them, “for the reasons hereinafter set out.” . The plea continues as follows: “3. For further plea, defendant says, that said notes were given for the purchase of fertilizers from plaintiff for the 3'-ear 1908, being for 24 tons in one car of a standard grade, for use under corn and cotton, and for 12 tons in a second car of a high-grade, for use under tobacco and truck. 4. The first car of 24 tons was, on delivery to defendant, found to have been resacked, and was without tags on the sacks as required by law, and defendant used same under his com and cotton during the season of 1908, which was an average season for the growth of such crops, but defendant got'no beneficial results, or the results that plaintiff guaranteed from the analysis branded on said sacks, from the use of said fertilizers, and consequently his crops failed, and the consideration of said notes given for the purchase of said fertilizers has totally failed. 5. The second car of high grade fertilizer, bought for defendant’s tobacco and truck crop, he used on said crops in the proper way, but said fertilizers failed to benefit said crops, although the season was propitious for such crops, and defendant’s said crops failed on 'account of said fertilizers being not of the .guaranteed analysis and containing the ingredients specified on the sacks, and the consideration of defendant’s note given for the' purchase of same has totally failed. 6. After the failure of defendant’s crops aforesaid, which failure was attributable directly to a.lack of a sufficiency of the ingredients guaranteed to be contained in said fertilizers, defendant proceeded to have said fertilizers anatyzed, and sent specimens of same to the commissioner of agriculture of the State of Georgia, at Atlanta, Georgia, and was by him informed that an inspector would call upon him and take samples of same and submit to the chemist' for examination, but to this date the inspector has not taken samples, but defendant is assured that the same will be taken, when he shall submit same to the test of analysis, and show the results to the court before the final trial of this case.”</p> <p>Citations by counsel: Acte 1901, p. 65; Acts 1903, p. 94; 4 Ga. App. 232, 234; 132 Ga. 533-4; 114 Ga. 666, 668; 94 Ga. 14; 83 Ga. 33; 62 Ga. 617; 54 Ga. 490.</p>

<p>1. The indictment, in addition to charging that the defendants committed unlawful acts of violence, alleged that the persons accused, “being assembled and gathered together, and acting with a common intent, unlawfully, violently, and tumultously did make a great noise, riot, tumult, and disturbance, to the great terror of Will Lovelace and others.” It was therefore not error for the court to charge the jury, in explanation of the nature of the offense of riot, that “the act need not necessarily be an unlawful act in a violent and tumultous manner. If you believe the defendant, in connection with others and acting with a common intent, did an unlawful act or any other act in a violent and tumultous 'manner, you would be authorized and it would be your'duty to convict him.”</p> <p>2. The sentence imposed, being within the limits prescribed by law, is not subject to review. Reese v. State, 3 Ga. App. 610.</p> <p>3. There was no evidence that the plaintiff in error and his associates were guilty of any unlawful act of violence; and the testimony failed to show that any act of the defendant himself or in conjunction with others was done in a violent and tumultuous manner. Consequently the verdict was without evidence to support it. To transmute acts which are intrinsically lawfu.1 into a riot, the commission of such acts must be attended with both violence and tumult. Both ingredients are essential in order to cause the reaction which is necessary to change the quality of a lawful act. Neither noise alone nor violence alone attending the performance of a lawful act can make a riot.</p>

<p>1. The court did not err in refusing to award a nonsuit. The evidence was sufficient to authorize the ■ jury to infer that the plaintiff’s injury was attributable to the negligent act of a person in the employment of the railroad company; which would raise the statutory presumption of negligence on the part of the company (Civil Code of 1895, § 2321).</p> <p>2. Even if there had been no statutory presumption of negligence, it would have been .proper for the court to submit to'the jury the circumstance that the instrument which caused the plaintiff’s injury was in the control and under the management of the defendant, and to allow the jury to determine, from the circumstances unde.r which the casualty occurred, whether the defendant had satisfactorily explained the occurrence and rebutted the inference of negligence arising from the event, if indeed negligence could be inferred from the nature of the occurrence. In any ease where the inference of negligence may as well be drawn as the inference that the casualty resulted from accident, it is error to award a nonsuit. Even if the explosion of a tank used to hold Pintsch gas is not such an unusual occurrence as to support the inference that an injury resultant from the explosion was due to the negligence of the defendant’s servants having the tank in charge and engaged in repairing it, the evidence, in behalf of the plaintiff showed that he was himself free from fault, and that the injury was inflicted upon him by the dots of others in the employment of the defendant railroad company. This raised the presumption that the defendant was negligent in the respects alleged in the petition, and presented' a prima facie case which was properly submitted to the jury. ,</p>

<p>Action on insurance policy; from city court of Atlanta — Judge Reid. October 29, 1909.</p>

<p>1. A bill of exceptions may, on motion, be amended by the addition of necessary plaintiffs in error, where the fact that they are necessary parties plainly appears from the record. The writ of error will not be dismissed where all necessary parties thereto have been properly sup- . plied by amendment.</p> <p>2. A suit was filed against several defendants, some of whom resided in the county of the court’s jurisdiction, and one in another county. The clerk failed to sign the process on the original petition, but the process annexed to the second original was properly signed, and the second original was served on the non-resident defendant. At the trial term the defendants moved to dismiss the suit, upon the ground that there was no process signed by the clerk in said ease, and that the process prepared was void and not amendable. Eeld, that the qourt did not err in directing the clerk to prepare and attach to- the petition, and to the second original, process returnable to the next ensuing term of the court, with direction that service be perfected upon the defendants.</p>

<p>1. One wlio appears at the time and place set for the hearing of a motion for a new trial, and orally agrees to the brief of evidence filed with the motion, but who, after the judge has corrected and approved the brief of evidence, moves to dismiss the motion for a new trial, for want of service, can properly be held to have waived any formal service of the motion.</p> <p>2. The evidence was sufficient to show such constructive delivery' of the chattel as to complete the sale and pass title to the plaintiff. However, even if there was doubt upon this point, the evidence of the plaintiff’s right of possession was sufficient to authorize a recovery in trover.</p>

<p>1. There was no, error in overruling the demurrer to the defendants’ plea. While parol evidence is inadmissible to vary the terms of a written contract, it is always permissible for the defendant to show, if he can, not only that the writing was not in fact executed by him, but, even in a case where ¡execution is admitted, that the written instrument was never in fact delivered as a present contract, unconditionally binding upon the obligor.</p> <p>2. The court erred in directing a verdict for the defendants, for the reason that a finding in favor of their answer was not demanded. Their antecedent and coexistent obligation in writing, which related to the same subject as the note sued upon, and provided’ for their joint and several liability, would have authorized a recovery in favor of the plaintiff.</p> <p>3. One who, in the purchase of personal property, enters into a written obligation, agreeing to pay therefor a stipulated sum and to execute notes with others, imposing upon the makers joint and several liability therefor, will not be heard thereafter to prove, by parol, conditions contradictory to a writing which, it is not denied, was executed as to signature as well as finally delivered.</p>

Action for damages; from city court of Blakely — Judge Jordan. December 10, 1909. Mrs. Fannie Berman brought suit in the city court of Blakely against H. G. Smith, to recover damages for alleged trespass, and the jury found a verdict in her favor of the sum of $6,000. The cause of action arose on the following state of facts: The defendant, H. G. Smith, was trustee in bankruptcy of Morris Berman, the husband of the plaintiff.

<p>Under the evidence in this case, a verdict for $1,000 damages is manifestly out of all proportion to the injury proved, and is so excessive as to demand the inference that the jurors were influenced by undue bias, partiality, or prejudice.</p>

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

<p>Action for damages; from city court of Savannah — Judge Freeman. January 22, 1910.</p>

<p>Certiorari; from Jasper superior court — Judge Lewis. May 20, 1910.</p>

<p>Certiorari; from Fulton superior court — Judge Bell. April 14, 1910..</p>

<p>Complaint; from city court of Macon — Judge Hodges. June 15, Í909.</p>

<p>Accusation of sale of liquor; from city court of Monticello— Judge Thurman. May 16, 1910.</p>

<p>Complaint; from city court of Washington — Judge Tutt presiding. September; 18, 1909.</p>

<p>Complaint; from city court of Atlanta — Judge Calhoun. September 25, 1909.</p>

<p>1. The eases in which the discretion of the judge of the superior court in the first grant of a new trial upon certiorari will not be disturbed are those in which there is some conflict in the evidence, and not those in which the decision is controlled wholly by law.</p> <p>2. Pleas to the jurisdiction must be pleaded in person.</p> <p>3. Where, in an action brought upon a bond, the plaintiff asks for nothing more than the express damages which the bond covenants he shall receive in the event there is a breach, the action is ex contractu.</p> <p>4. A creditor may release a surety without affecting the liability of the principal. And it is of no concern to the principal what consideration moved the plaintiff to release his surety.</p> <p>(a.) A plea to the jurisdiction is one of personal privilege; and when a surety waives service and appears in court without protest as to the jurisdiction, it is to be assumed that the court has jurisdiction of his person.</p> <p>(b) Jurisdiction of the surety gives jurisdiction of the principal.</p> <p>Í5. The certiorari should have been dismissed.</p>

<p>Action for damages; from city court of Atlanta — Judge Eeid. October 30, 1909.</p>

<p>Where one executes for his own benefit a promissory note, on which he secures money from the payee for himself, giving no indication that he is acting for another, and in fact acting solely for himself, and the payee deals with him as principal, under the impression that the name signed to the note is in fact the name of the party for whose benefit it is made and the money advanced, the'note is the individual contract of the one who makes it, although he may sign to it a fictitious name or the name of another person. In such case it is not necessary for the payee or holder of the note to resort to equity to reform the contract, but lie can bring suit on the note, against the party who really made the contract.</p>

<p>Trover; from city court of Nashville — Judge E. Eve presiding. December 3, 1909.</p>

<p>The allegations of the petition as amended were sufficient to show a cause of action, and the court erred in dismissing it on demurrer.</p>

<p>Accusation of aiding escape; from city court of Columbus— Judge Tigner. April 23, 1910.</p>

<p>Appeal; from Fulton superior court — Judge Pendleton. May 28, 1909. '</p>

<p>1. The statement of a jurat, that the affidavit to which it is attached was duly sworn to, is only prima facie true. It is to be presumed in every case that the officer who signed a jurat does his duty. But the presumption in favor of a properly executed jurat is not, conclusive. The fact as to whether the alleged affiant was sworn or not sworn may properly be inquired into, and the statement of the jurat may be shown to be false.</p> <p>2. Where it is shown that no oath was in fact administered to one who apparently swore to an affidavit made to foreclose a chattel mortgage, and it does not appear from any statement of the alleged affiant, made at the time he affixed his signature to the alleged affidavit, that he intended expressly to affirm the truth of the statements contained in the affidavit, the mere fáe't of signing the affidavit, without more, is not sufficient to dispense with the administration of the requisite .oath, .and' the paper thus signed is not a proper substitute for the affidavit required by law.</p> <p>3. There being no valid affidavit to foreclose the mortgage, the court erred in not sustaining the affidavit of illegality. The case is controlled by the ruling in Britt v. Davis, 130 Ga. 74.</p>

<p>1. If a policy of life-insurance which on its face acknowledges the receipt of the first premium is (without fraud, accident or mistake) delivered to the insured by the company or its authorized agent, and' the first premium is not in fact paid in cash, it will be conclusively presumed that the company intended to waive the payment of the first premium in cash and to extend credit to the insured. But the acknowledgment of the receipt of the premium, as contained in the face of the policy, may be explained by showing-' that, contemporaneously with the delivery of the policy, the insured executed his promissory note, payable to tire company, for the premium, and that, by the terms of the policy, failux-e to pay the premium note at maturity would forfeit the policy. In such a case the insurance would become effective upon the delivery of the policy, subject to forfeiture for breach of the condition subsequent, namely, the nonpayment of the note; but, like other forfeitures for failure to comply with conditions subsequent, the company may waive the forfeiture arising from failure to pay the note.</p> <p>2. Where, in such a case, the company takes a note for the premium, and it is provided in the policy that if the note is not paid at maturity the policy shall be void, but the note represents the premium for an entire year-, the company, by insisting upon the payment of the note in full after its maturity, will be held to have waived its right to forfeit the insurance during the year, especially where the note is an interest-bearing obligation. The. law, following equity, will not allow the company either to collect or to assert its right to collect a full year’s premium out of the insured, and yet declare the policy void at an earlier date .</p> <p>3. Where, however, a company allows a policy acknowledging receipt of the first premium to be delivered to the insured by its agent, under an arrangement whereby the company extends the credit for the insurance premium to the agent, and the agent, to protect himself, takes from the insured a promissory note, under seal, payable to the agent personally, the company will not be allowed to declare the policy forfeited for non-payment of the. note given by the insured to the agent, under a clause in the policy which provides that if a note be taken for the premium and the note be not paid at maturity, the policy shall be void; although the agent transferred the note of the insured to the company in payment or as security for the company’s account against the agent for the amount of the premium.</p> <p>(a) Where a sealed instrument is payable to a designated person, it is not permissible to show by aliunde testimony that in the transaction the payee was acting as agent for a third person, so as to make the liability of the payer a liability to that third person, instead of a liability to the person designated as payee.</p> <p>4. It is error to give an instruction which is wholly irrelevant to the issues between the parties and unsupported by the evidence. Proof that a notice was sent to the insured, calling upon him to pay a premium, or notifying him when the next premium is due, may be admitted, to show a waiver of forfeiture on the part of the insurance company, even though it does not appear that the insured actually received such notice.</p> <p>5. The agent of a corporation primarily is not incompetent to testify as a witness in behalf of the corporation concerning communications between himself as such agent and another, since deceased, whose assignee or transferee is the opposite party to the ease, even though such latter party be insane.</p> <p>6. A person not a party to the suit, but who is interested in its result, is not competent to testify as to transactions or communications with an insane or deceased person, in an action brought by the assignee or transferee of the insane or deceased person, although, as agent of the corporation, he might be generally competent as a witness if he were not personally interested in the result of the suit.</p> <p>7. A forfeiture occurs, if it results at all, immediately upon a breach of the condition of the contract on which it is based; and, forfeitures not being favored in law, a waiver of the forfeiture, once made, can not be recalled. The demand foi- payment in full of a future premium subsequently to the breach of a condition which would have entitled the insurer to insist upon a forfeiture of the contract will be held to be a' waiver of the forfeiture, and be treated as an acknowledgment that the delinquent policy-holder is still entitled to the benefits conferred by his contract.</p> <p>8. In case a note is accepted in payment of the premium upon a policy of insurance, and in the policy it is stipulated that failure to pay such note at maturity will void the contract, the retention of the note and an attempt to collect it in full after its maturity is a waiver of the right of forfeiture. An insurance company which takes a note for a premium may, upon default in payment of the note, forfeit the policy of insurance, if the contract so stipulates, but it can not forfeit the policy and collect the entire note.</p> <p>9. If the agent of the insurance company, who is not authorized to accept anything but cash in payment of a premium, takes a note for the first premium and thereby becomes personally liable to the company for the .cash, and the company holds him individually responsible for the amount of the premium, the non-payment of the note does not forfeit the policy. An insurance company has the right to accept the assumption of personal liability on the part of its agents in lieu of payment of a premium in behalf of another, to the same extent that it must look to its authorized agent to deliver or pay over to .the company premiums actually paid to him in cash. An insurance company, in the absence of any provision to the contrary in its charter, may extend credit, in the payment of insurance premiums; and such credit may be extended to an agent who has assumed the payment of a premium in -behalf of the insured.</p>

<p>The judgment rendered was in accordance with the law and evidence. One who, without interposing any claim or otherwise objecting, stands by and sees his property sold as the property of another is estopped from thereafter asserting his right. Nor has he any property in the fund realized from such a sale which he can convey to a third person.</p>

<p>The controlling questions in this ease have been certified' to the Supreme Court and answered at length. It is deemed unnecessary for this court, to go into an elaboration of the facts or points; but reference is had to the decision of the Supreme Court. 135 Ga. 35 (68 S. E. 807).</p> <p> Judgment reversed. </p>

<p>The court did not err in setting aside the verdict, and vacating the judgment. A judgment rendered against a party whose sole counsel is absent by express leave of the court is properly vacated' and set aside when that fact is properly called to the attention of the court by a timely 'motion in writing. Especially was this true where it was shown that the sole counsel for the defendants, the appellants in an appeal from a justice’s court, who had promised to notify his clients when to be present, was taken seriously ill, and was in that condition when the judgment was rendered, and the only evidence in behalf of the respondent, on the hearing of the motion to set aside the judgment, was that his counsel did not know, until after the rendition of the judgment, that1 the defendants had á lawyer.</p>

<p>1. Mere error does not require the grant of a new trial. To set aside a verdict sustained by evidence, the error of which complaint is made must be shown to have been injurious to the complaining party, or at least appear to have affected some of his rights.</p> <p>2. Where the plaintiff in an action for damages placed his right to recover upon a statute of Alabama, it was not error harmful to the defendant to refuse at the second term to allow an amendment to the answer, setting forth that the train upon which the plaintiff was employed, and upon which he was injured, was engaged in interstate commerce, and that therefore the defendant, if liable at all, was liable under the provisions of the act of Congress, approved April 22, 1908, generally known as the “employer’s liability act.” Even if this act of Congress, as to such a case, superseded the statute of Alabama, and even though the amendment would have been good if filed at the appearance term as a dilatory plea, it did not set up any substantive defensive matter affecting the merits. And as the rights of the plaintiff as an employee were greater and the liabilities of the defendant as an employer were less, under the statute of Alabama, than under the statute of the United States, the refusal of the amendment could not by any possibility have injured the defendant.</p> <p>3. Even if the statute of the United States had been applied by the court, and the jury instructed accordingly, the verdict in favor of the plaintiff would have been demanded. Under the provisions of the Eederal “employer’s liability act,” the evidence demanded the verdict.</p> <p>4. Dilatory pleas must be filed at the first term.</p>

<p>Action on insurance policy; from city court of Dalton — Judge Wright, presiding. November 23, 1909.</p>

<p>Action for libel; from city court of Brunswick — Judge Krauss. May 22, 1909.</p>

<p>Action for damages; from city court of Atlanta — Judge Reid. January 8, 1910.</p> <p>The action was for damages on account of personal injuries. The material allegations of the petition, briefly stated, are as follows: Plaintiff was a laborer employed by the defendant railway company, and most of his work consisted in repacking and oiling cellars of the engines and trucks of the tenders of the defendant. He was not employed to remove cellars from engines, or put them in. This work was usually performed by a machinist and his helper, and required skill and experience. He was ordered by his foreman to remove a cellar from an engine and place it in another engine, and to do the work quickly, the foreman threatening to discharge him if he did not do the work as he was told. There was not sufficient light for plaintiff to do the work, 'and he was furnished with a little torch, but he could not hold it "and do the work at the same time. The foreman furnished another man to assist him, at his request, but took this man away before the cellar was taken out of the- engine, and ordered plaintiff to continue the work by himself. The foreman had authority to employ and discharge hands, and was defendant’s chief agent and alter ego. “In order to get the cellar out, it was necessary to use considerable force, by pressure or prizing, which required the combined efforts of two men. Plaintiff, being told to proceed alone, attempted to prize it out of its bed by using a small ‘ jimmy’ bar with which defendant had furnished him, but with this he could move the cellar only about two inches, as the bar was not large enough, and plaintiff could not bring to bear sufficient force. He therefore got a larger bar, which was the only one available, with which to attempt to finish the job. He had to get this bar for himself, and, not being furnished by defendant with a proper tool for the purpose, and being ordered by defendant to act quickly, and being ignorant and inexperienced in that kind of work, he took up a bar that appeared to him to be large enough for the purpose, and hurried back to the work. The bar was about two inches in diameter and very heavy, being of steel. It was somewhat bent and one of the toes was broken off, it being what is known as a crow-foot bar. ' Plaintiff, in the haste which had been imposed upon him by defendant, having no opportunity to inspect the bar or to get a better one, and not having sufficient experience to know what was needed, thought he could do the work with this bar. He found that the heel of the bar was not large enough to get proper leverage against the cellar between it and the hub of the wheel against which he was attempting .to prize. So he took an iron- or steel tap with which to make a heel for the bar and help fill the space between the cellar and the hub of the wheel. In order to get at the cellar with the bar, he had to stoop down low and reach up a little way with the bar. When he thus attempted to prize against the cellar, the heel of the bar slipped, the tap dropped out of place, and the. bar flew against him with great force, striking him in the stomach, and he lost his balance and fell over backwards with the bar on top of him, causing severe injuries more particularly described hereafter.”</p>

<p>Complaint; from city court of Tifton — Judge Eve. February 12,1910.</p>

<p>The allegations of the petition set out’ a cause of action, and the court erred in dismissing it on demurrer.</p>

<p>Certiorari; from Morgan superior court — Judge Lewis. March 17, 1910.</p>

<p>Complaint; from city court of Miller county — Judge Stapleton. March 14, 1910.</p>

<p>The court erred in dismissing the certiorari.</p>

<p>Certiorari; from Bibb superior court — -Judge Felton. January 25, 1910.</p>

<p>Action for damages; from city court of Floyd county — Judge Hamilton. March 17, 1910.</p> <p>W. B. Dabbs brought suit against the Borne. Bailway & Light Company to recover damages for the homicide of his daughter. The petition, in substance, made the following allegations: The plaintiff’s deceased daughter was unmarried, was 22 years of age, and was motherless at the. time of her death. He was dependent on her and she contributed to his support. On August 14, 1908, in the evening, she was riding in a carriage drawn by two mules driven by a neighbor, who, with his wife and two children, occupied the front seat, the decedent and two of her sisters being on the back seat. At a° point on what is known as Cave Spring road, in Floyd county, the vehicle was being driven in a general southerly direction, alongside the track of the defendant. The road at that point, between the track of the defendant and the fence running alongside the road, was 18 feet wide, and from the point where the killing occurred the track extended south straight for 350 yards, and 'then curved in a westerly direction. It was dark, and the car of the defendant had its electric headlight and other lights on, and came around the curve above mentioned, towards the vehicle in which the decedent 'was riding. The mules drawing the carriage became frightened at the car, and, as it approached, became more and more frightened. The car approached at a dangerous rate of speed, about 30 miles an hour, and the servants and agents in charge of the car saw, or by the use of ordinary care could have seen, that the team was frightened, but they made no effort to stop or check the car. As the car approached the carriage the mules began backing away from it, thereby pushing the rear end of the carriage towards the track, and the decedent, seeing the rapidly approaching car and seeing that the carriage was about to be backed against the car, undertook to spring from the carriage. She stumbled and fell in the way of the car and was run over and killed. The defendant was negligent, in that its agents, seeing the frightened condition of the team, made no effort to stop the car. • It was negligent in that its agents in charge of the car were running it in the narrow road at such a high rate of speed. It was negligent in that its car was not equipped with air-brakes, or with any other means of quickly stopping or checking the car, except a friction brake. It was also negligent in not having prescribed any rules regulating the speed of. its cars at this place. This petition was demurred to, and the plaintiff, by an amendment, alleged, that the headlight of the car cast a bright light 200 yards ahead; that everything in this light could be plainly seen; that the team was in this light and could be seen for this distance; that on account of the narrow roadway and the frightened condition of the team, it was likely and probable that the team would push or pull the carriage upon the track in front of the moving car and thereby cause a collision between the car and the carriage; that the roadway was straight, as described in the original petition, and tlie motorman in charge of the car could, by exercising ordinary care and looking ahead, have seen the narrowness of the roadway and the frightened condition of the team, and could have seen that a collision was imminent, but made no effort to stop or check his car, although running at the great rate of speed above mentioned, and although he could have seen that a collision was probable; and in these particulars the defendant was negligent; that the motorman failed to keep a lookout ahead and failed to see that a collision was-probable; and in this the defendant was negligent; that the defendant was also negligent in approaching the team at such a high rate of speed, without knowing that it could be safely passed, and without exercising any care to prevent injury in case the team took fright and the decedent was put in a perilous position; that the friction brake of the car was-not so powerful as air-brakes, and required 50 yards to stop the car while running at the rate of speed at which it was then running, and the motorman Imew this, but nevertheless made no effort to get the ear under control; and in these particulars the defendant was negligent; that the schedule called for a rate of speed, at that place, of fifteen miles per hour, but this rate of speed was being greatly exceeded; and this is alleged as negligence; that the defendant was also negligent in running a car equipped only with hand friction brakes, on a down-grade, as the track was, at the place of the killing, at such a high and dangerous rate of speed, in and along a public road which was only 18 feet wide, and especially in undertaking to pass- a team coming towards the car, at such speed, under all the circumstances alleged.</p> <p>To the petition as amended the defendant filed a general and special demurrer, which was overruled; and in the cross-bill of exceptions this judgment is assigned as error. At the conclusion of the evidence in the case, a verdict was directed for the defendant; and to this the plaintiff excepted.</p> <p>The evidence for the plaintiff established the substantial allegations of the petition. The driver of the carriage in which the deceased was riding, his wife, and the two sisters of the deceased, who were sitting on the rear seat of the carriage with her, all agree in their testimony that the mules became frightened at the rapid approach of the car; that as the car approached the vehicle the mules “surged backwards and forwards with the surrey, and when the car got right in front of them and threw the light in their eyes, they stood on their hind feet and made a leap;” that the car passed in about two feet of the surrey, close enough to touch it; that the ear was running at a very rapid rate of speed and the motorman made no effort to stop it, although he could have plainly seen for some distance the frightened condition of the mules and the imminence of the danger of 'a collision with the vehicle. One witness testified that the motorman appeared to be looking. straight at the mules while they were “cutting up,” but did not slacken the speed of the car, or make any effort to do so. The evidence for the plaintiff is silent as to how the decedent got out of the surrey, but the inference is very clear that, seeing the approach of the car and the frightened condition of the mules, which were backing the,vehicle towards the track, she made an effort to get out of the vehicle, and fell on the track, where she was 'struck by the car. The testimony of the motorman and the conductor was in sharp conflict with that of the witnesses for the plaintiff. They testified, that the ear was not running at an unusual rate of speed; that the condition of the track was fairly good; that when the motorman first saw the carriage he was about 200 feet from it; that the mules or the animals pulling the vehicle did not seem to be frightened at all, and when the car was in about 15 feet of the carriage, the decedent jumped out of the 'carriage on to the track and was hit by the car; that the car was then running about 15 miles per hour, or possibly a little more; that it was running at the usual rate of speed; that there was nothing in the conduct of the mules to indicate any danger; that the motorman put the brakes on the ear about the time he saw the decedent jump out of the carriage, and it all happened in an instant; that the carriage was about 8 feet from the track, and the decedent jumped from the carriage on to the track; and that the mules were not frightened either before or after the accident.</p>

<p>1. As a general rule, one surety can not recover contribution from another when the debt paid by the surety seeking contribution was not binding either on tile principal or on the other surety.</p> <p>2. A partial payment on a promissory note, either by the principal maker or by a surety, before the note is barred by the statute, does not constitute a new point for the running of the statute of limitations as against a cosurety who is not a party to the payment.</p> <p>■3. The right of contribution does not rest on the original contract, but arises out of the relation, created thereby, of a common obligation, and the contract implied therefrom of discharging the common obligation equally, and when one surety or indorser on a promissory note is, by operation of law, discharged from the obligation of payment, the obligation thus discharged can not, without his consent, be revived against him by the voluntary act of a cosurety.</p>

<p>Accusation of misdemeanor; from' city court of Danielsville— Judge Moseley. June 14, 1910.</p>

<p>Accusation of misdemeanor; from city court of Danielsville— Judge Moseley. June 14, 1910.</p>

<p>1. The excerpts from the charge on which error is assigned, when considered in connection with the entire charge, do not contain any material or substantial error, and did not confuse or mislead the jury as to the essential elements constituting the crime with which the defendant was charged. On the contrary, the instructions fully, fairly, and with substantial accuracy, submitted to the jury all the issues in the case.</p> <p>2. Individually we consider the evidence weak and unsatisfactory, but juridically we must consider it as sufficient. Reviewing courts should not enter the forum of facts and contest with the jury the standard of reasonable doubt. If so, jury trials would be a useless formality.</p> <p>3. The alleged newly discovered evidence was simply cumulative and impeaching and was not likely to change the result on a second trial, and there was no error in refusing to grant another trial on this ground.</p>

<p>Accusation of sale of liquor; from city court of Dublin — Judge Hawkins. June 18, 1910.</p>

<p>Accusation of assault .and battery; from city court of Hazlehurst —Judge Bennett. June 22, 1910.</p>

<p>Indictment for simple larceny; from Early superior court— Judge Worrill. June 17, 1910.</p>

<p>1. One of the essential requisites in the offense of cheating and swindling by a false representation is that the person making the representation shall know that it is false; and, while this may be proved by circumstantial evidence, it must in some wise be proved in the ease.</p> <p>2. A person may be cheated and swindled by a false representation as to what is contained in a writing; and in such cases it is no sufficient objection to a witness, testifying as to the representation made, that the writing itself is the highest and best evidence of what it contains.</p>

<p>1. The evidence authorized the conviction of voluntary manslaughter.</p> <p>2. There was ample foundation laid for the introduction of the alleged dying declarations, to authorize the judge to submit them to the jury with proper instruction.</p> <p>3. Where an objection goes to testimony as a whole, and part of the testimony is admissible, the objection may without error he overruled, though a part of the testimony be inadmissible.</p> <p>4. Alleged dying declarations are admissible in evidence only when made at a time when the deceased was in the article of death. In the present case the fact that the deceased was in the article of death when the alleged declarations were made was plainly and almost indisputably shown. In charging the jury upon the subject the judge at first correctly charged that to be receivable as a dying declaration, the statement must have been made by the deceased while in the article of death, but in a succeeding sentence, while again referring to the elements essential to such declarations being received in evidence, he omitted to call the attention of the jury to this element along with the others. Exception is taken to the portion of the charge in which the judge omitted reference to this element. Held, th$t prima facie the exception is well taken, but that when it is considered in connection with the state of the evidence on the subject, and in connection with what the judge also stated in the same context, the error is not deemed sufficiently. harmful to justify a reversal; because it is probable that the jury was not misled by the inaccuracy of the statement.</p> <p>5. While a person may be justifiable in killing to prevent his habitation from being entered through violence or surprise by persons attempting to enter in a riotous manner, even though they have no actual or apparent intention of committing a felony therein, but intend merely to commit a misdemeanor upon the slayer or some person dwelling in the habitation, yet the state of the evidence in this ease was not such as to require the judge to submit to the jury any instruction on this subject. .</p> <p>6. The proposition, so often announced by this court and by the Supreme Court, that it is prima facie error for the court to instruct the jury that “provocation by words, threats, menaces and contemptuous gestures shall in no ease' be sufficient to free the person killing from the guilt and crime of murder,” is still the law in this State. The quality of error in the statement quoted is its ineptitude to convey the idea intended to be conveyed, and its likelihood to mislead the jury in certain classes of cases. Under the facts of the present ease and' the charge of the court as a whole, there is no reasonable probability that the jury were misled or the defendant prejudiced by the giving of this instruction, in the context in which it was given.</p>

<p>Indictment for bastardy; from Hart superior court — Judge Meadow. June 27, 1910.</p>

<p>1. Alleged error in refusing to quash an accusation is not properly presented for review through the medium of a motion for a new trial.</p> <p>2. The same transaction may constitute both simple larceny and larceny after trust, and in such cases the offender may be prosecuted for and convicted of either offense.</p> <p>(a) ,If a person, who at the time intends to steal an article of personal ' property, fraudulently1 induces the owner to hire it to him, and he thereupon steals it, he may be convicted either of simple larceny or of larceny after trust.</p>

<p>The judgment dismissing-the certiorari was erroneous.</p>

<p>Accusation of misdemeanor; from city court of Carrollton— Judge Beall. June 4, 1910.</p>

<p>Indictment for assault and battery; from Irwin superior court —Judge Whipple. June 20, 1910.</p>

<p>Indictment for gaming; from Butts superior court — Judge Reagan. August 18, 1910.</p>

<p>Complaint; from city court of Floyd county — Judge Hamilton. March 28, 1910.</p>

<p>Indictment for aiding escape; from Warren superior court— Judge Meadow. August 29, 1910.</p>

<p>Action on contract; from city court of LaGrange — Judge Harwell. May 27, 1910.</p>

<p>Action for damages; from city court of Floyd county — Judge Hamilton. May 18, 1910.</p>

<p>Accusation of gaming; from city court of Danielsville — Judge Moseley. -June 10, 1910.</p>

<p>Accusation of .gaming; from city court of Danielsville — Judge Moseleji. June 15, 1910.</p>

<p>Certiorari; from Walker superior court — Judge Maddox. May 4. 1910. •</p>

<p>1. A pauper’s affidavit filed for the purpose of relieving the plaintiff in error of the payment of costs in this court must, in order to be effective to that end, be such an affidavit as would support a prosecution for perjury.</p> <p>2. A justice of the peace has no authority to administer an oath elsewhere than within the limits of his own county.</p> <p>3. Presumptively, an affidavit is executed at the place stated in the caption, if any. Hence, when an affidavit is headed as being executed in one county, and the officer before whom it is made appears to he a justice of the peace of another county, the affidavit is presumptively illegal.</p>

<p>Action for damages; from city court of Atlanta — Judge Reid. May 19, '1910.</p>

<p>1. An indictment or accusation charging a violation of the provisions of section 1479 of the Political Code of 1895, in that the defendant did practice medicine without registering in the office of the clerk of the superior court, is fatally defective if it fails affirmatively to allege that the county in which he is charged with having practiced medicine without registering is the county wherein he resided. The law only requires one registration by a practitioner of medicine before he commences to practice medicine in this State, and that registration is required to be made in the office of the clerk of the superior court of the county wherein the practitioner resides.</p> <p>2. The exceptions stated in section 1481 of the Political Code of 1895 need not be negatived in the accusation, as they are matters of defense.</p>

<p>Indictment for sale of liquor; from Dooly superior court — ■ Judge Whipple. June 22, 1910.</p>

<p>Indictment for misdemeanor; from Chatham superior court— Judge Charlton. July 9, 1910.</p>

<p>1. The evidence fully authorized the conviction.</p> <p>2. Witnesses are not to be discredited for slight discrepancies as to immaterial matters. The instruction given on this subject in the present case was couched in language somewhat inapt;'but this ineptitude was not sufficiently important, from the standpoint of error, to require a reversal.</p> <p>3. The exceptions relating to other alleged errors of law are not well taken.</p> <p>4. The alleged grounds of newly discovered evidence jivere not even prima facie well taken. Hence, any error in the admission of evidence on the counter-showing was wholly immaterial,.</p>

<p>1. Although grounds of a motion for new trial are not formally approved, they are to be considered when it is certified in the hill of exceptions that the statements of fact contained in them were approved as true.</p> <p>2. It was error to admit hearsay to prove the guilt of the accused, especially when the statement of the witness, inculpatory of the defendant, was not a part of the res gestae of the transaction, nor made in the presence of the defendant.</p> <p>3. An instruction of the. court to the jury which intimates that a party has made an unsuccessful effort to establish a specified contention, when his contention is different, necessarily depreciates the weight of the testimony used for that purpose, and is error.</p> <p>4. An instruction not warranted by the evidence'in the case on trial, and upon a point as to which no evidence was introduced, is erroneous.</p>

<p>Levy and claim; from city court of Newnan — Judge Freeman. February 16, 1910.</p>

<p>Action for dámages; from city court of Columbus — -Judge Tigner. April 9, 1910.</p>

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

<p>Action for damages; from city court of Floyd county — Judge Hamilton. April'1, 1910.</p>

<p>Attachment; from city court of Covington — Judge Whaley. May 14, 1910.</p>

<p>The assignments of error as to the charge of the court to the jury are without merit, and' the request to charge was fully covered in the general charge given. The evidence authorized the verdict, and there was no error in refusing a new trial.</p>

<p>Action for damages; from city court of Floyd county — Judge Hamilton. May 18, 1910.</p>

<p>1. Where the court instructs the jury that they are judges of the facts, they need not be instructed in the same connection that they are .also judges of the -law, if in the general charge as a whole they are correctly instructed as to the law.</p> <p>2. The omission to insert in the section defining voluntary manslaughter the statement that the jury shall in all cases be the judges of “cooling ' time” is immaterial, where the jury are correctly instructed upon the subject of voluntary manslaughter as involved under the particular facts of the case under investigation, and do in fact find the defendant guilty of that offense. The purpose of the act of 1899 was to leave to the jury, instead of to the court, the determination of what was sufficient time for passion to cool, and the law is directed entirely to the end of-having what is “cooling time” in any ease submitted to the jury; and in a ease where the matter is submitted to the jury the mere fact that the statute is not repeated to them affords no ground for complaint.</p> <p>3. The court did not err in charging the jury upon voluntary manslaughter. While there was evidence which would have authorized a conviction of murder, the evidence as to mutual intent to fight, and that the killing was a result of a sudden heat of passion, was ample to authorize the verdict rendered by the jury.</p> <p>4. Exceptions which merely assign error, without specifically pointing out the error complained of, can not be considered.</p> <p>5. To say to the jury (in charging upon the subject of defendant’s state- . ment), “no penalty attaches for the making of a false statement; it goes to you for your consideration, and you can give to it such weight and credit as you deem it is entitled to; you can act upon it and acquit the defendant even in preference to the sworn testimony, if you desire to do so, or you may set tlie statement aside and look to the sworn testimony in your search for the truth;” “give to the statement of the defendant, as before said, such weight and credit as you deem it is entitled to,” is not erroneous for the reason that it is not in the exact language of the statute, nor for the reason that it intimates any opinion, as claimed, that the sworn testimony is superior or equal in weight to the statement of the defendant.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. May 19, 1910.</p>

<p>The finding- of the municipal court against the defendant was without any evidence to support it, and the judge of the superior court erred in overruling the certiorari.</p>

<p>A new trial will not be granted upon newly discovered evidence which is merely cumulative or impeaching; and especially should this rule not be relaxed when the newly discovered evidence is practically identical with testimony already adduced on the former trial, and there can be no reasonable probability that there will be a different result upon another trial.</p>

<p>1. When considered in connection with the general charge, the exceptions to the charge of the court are without merit. The request to charge, so far as pertinent to the evidence, was covered by proper instructions.</p> <p>2. It is not error for a judge, after having properly instructed a jury as to the form of their verdict and after having asked them if they wished to retire in order to correct an irregular, incomplete, or uncertain verdict, to permit the corrections to be made in open corn", where the jury have informed, the court as to the true meaning of their finding and the verdict they intended to return.</p>

<p>The custom and usage of a business may be proved, to illustrate the authority of an agent. There being conflict in the evidence as to the authority of the agent and dispute between the parties as to whether the agent had the authority to sell, or merely power to take orders subject to the confirmation of its principal, it was error to direct a verdict.</p>

<p>Indictment for hog-stealing; from Early superior court — Judge Worrill. June 17, 1910.</p>

<p>1. The term “false representations,” as used in section 658 of the Penal Code of 1895. defining acts which constitute cheating and swindling, is not necessarily restricted to the use of words written or spoken; but false, representations may be made by tokens, signs, or symDols, and may also be implied by way of concealment of part of the truth as to a fact, or from total and misleading silence.</p> <p>2. There is no material variance between the allegata and‘probata, and tile evidence supports the verdict.</p>

<p>As long as husband and wife are living together the husband is the head of the family, and the house occupied by them may properly be denominated as his house, even though the wife pays the house rent and supports the husband. The legal status of the husband as head of the family can not be affected even by sworn testimony to the effect that in the particular ease the wife is in fact the head of the family.</p>

<p>Wliile the evidence in behalf of the defendant might authorize the inference that the accused was actuated by the fears of a reasonable man in shooting the prosecutor, still there is no complaint that the jury were not fully instructed as to the law applicable to this phase of the ease; and as the evidence in behalf of the State and in conflict with the testimony for the defendant authorized the verdict rendered by the jury, there was no error in refusing a new trial.</p>

<p>1. The alleged newly discovered evidence is immaterial and would not probably produce a different result on a second trial.</p> <p>2. No- error of law is complained of, and ther.e is evidence to support the verdict.</p>

<p>Habeas corpus; from city court of Sylvester — Judge Williamson. September 10, 1910.</p>

<p>Accusation of abandonment of child; from city court of Blakely —Judge W. A. Jordan. September 23, 1910.</p>

<p>Indictment for sale of liquor; from Pierce superior court— • Judge Parker. September 24, 1910.</p>

<p>1. “Verdicts are to have a reasonable intendment and. are to receive a reasonable construction, and are not to be avoided unless from necessity.”</p> <p>2. A verdict returned into court by the jury in a criminal case and endorsed on the accusation in the following language, “We, the........., find the defendant guilty,” dated and signed by one of the jurors as foreman, is sufficient in form, and is not so vague, indefinite, or uncertain as to afford ground for motion in arrest of judgment.</p> <p>3. It was within the province of the jury to settle the conflicting inferences arising from the state of the testimony and from the nature of the transaction in issue; and the verdict, approved by the trial judge, can not be disturbed by this court.</p>

<p>Indictment for carrying liquor to church; from Terrell superior court — Judge Worrill. September 17, 1910.</p>

<p>Accusations of gaming; from city court of Griffin — Judge Elynt. October 10, 1910.</p>

<p>Accusation of sale of liquor; from city court of Newnan — Judge Post. September 30, 1910.</p>

<p>No attorney -(except by special order otherwise providing) can legally appear as counsel upon the argument of a case in this court, unless he has been admitted to the bar of this court. The rule applies to solicitors-general and to city-court solicitors, as well as to other attorneys.</p>

<p>Indictment for murder; from Appling superior court — Judge Parker. June 18, 1910.</p>

<p>Complaint; from city, court of Hall county — Judge. Looper. March 26, 1910.</p>

<p>Accusation of violation of headlight law; from city court of Richmond county — Judge Eve. January 25, 1910.</p>

<p>Action for money had and received; from city court of Ocilla— Judge Wall. January 13, 1910.</p>

<p>. Action for damages; from city court of Savannah — Judge Freeman. February 7, 1910.</p> <p>Henry Bradley filed a petition against the Yale Royal Manufacturing Company and the Hilton & Dodge Lumber Company to recover damages for personal injuries received by his minor son, Henry Bradley Jr. The petition alleges, in substance, that the son, an inexperienced youth, fifteen }rears of age, was put to work by the' defendants on a dummy switch-engine, and, while so working, his left leg was broken at the middle of the thigh. The petition fully describes the injuries and alleges that they were serious, painful, and permanent, and also alleges specific grounds of negligence on the part of the defendants, which caused the injuries to the employee. It alleges that it is brought for the use and benefit of the minor son. • The allegations distinctly show that the suit is based exclusively upon the injury .to the minor son, and that its purpose is to recover 'damages -for him. A general demurrer to the petition' was filed by both defendants, which was overruled, and exceptions pendente lite were preserved. Both defendants answered the petition, denying all the "allegations thereof, except the first paragraph.</p> <p>Upon the trial of the cause, and before any evidence was intro-duced, counsel for the two defendants, in response to a notice to produce, calling for information as to which of the two defendants had employed Henry Bradley Jr., stated in his place that the Vale Boyal Manufacturing Company was the.real employer of the minor who had been injured, and if there was any liability on account of the injuries, the liability therefor was against it alone. After the conclusion of the evidence and the argument, counsel for the plaintiff stated in his place, in the presence of .defendant’s counsel and of the court and jury, that in view of the above-recited admission,, the plaintiff dismissed the case as to the Hilton & Dodge Lumber Company; and thereupon the court charged the jury as follows: “This case was originally brought against the Hilton & Dodge Lumber Company and against the Vale Boyal Manufacturing Company. Under the admission of the defendant, that if there is any liability, it is a liability on behalf of the Vale Boyal Manufactiiring Company, the other defendant, the Hilton & Dodge Lumber Company, is out of the case, and though the pleadings allege a case against the tyo défendants, so far as your consideration of it is concerned, there is left, under such admission, only a case as against the defendant,'the Vale Boyal Manufacturing Company; and on the question of liability or non-liability, you will determine'whether or not the Vale Boyal Manufacturing Company only is liable in this cáse.” And in stating the form of the verdict the court further charged as follows: “If you find for the plaintiff, having ascertained the amount of the damages, the form of your verdict would-be, ‘We, the jury, find for the plaintiff,’ stating the amount.” The verdict was in the following form: “We, the jury, find for the plaintiff $2,500;” and on this verdict the following judgment was entered: “Henry Bradley, for use of Henry Bradley Jr., plaintiff, v. Yale Royal Manufacturing Company, defendant. The jury empanelled to try said case having, on the 14th day of July, 1909, returned a verdict for plaintiff, for the sum of $2,500, principal, judgment is rendered for the plaintiff against the defendant for the sum of $2,500, principal,” etc. Both of the defendants filed motions in arrest of judgment, on the following grounds: (1) The verdict is illegal, in that it does not specify against which of the two defendants it is rendered. (2) The verdict and judgment is invalid, in that the plaintiff in the case is Henry Bradley, whereas the injury and damage was solely to Henry Bradley Jr. Plaintiff, filed an answer to this motion, and insisted therein that the judgment followed the petition; that if the plaintiff was not properly described, it was a formal and amendable defect; that the petition shows that the suit was brought by Henry Bradley Jr., for injuries received by him; that the suit was in substance one by Henry Bradley Jr., by his next friend, Henry Bradley, and that if the description of the plaintiff was imperfect, it was cured by the verdict. Plaintiff insisted further, that neither of the movants had any right to object thereto; that upon the trial of the case counsel for the defendants stated in open court that the Yale Royal Manufacturing Company was the employer of the plaintiff; whereupon counsel for plaintiff arose in his place, and, in the presence of defendants’ counsel and in open court, stated to the court that, under this admission, the plaintiff dismissed the case as to the Hilton & Dodge Lumber Company; that thereafter the case proceeded against the Yale Royal Manufacturing Company, as appears by the charge of the court, which is a part of the record in the case, and that the Yale Royal Manufacturing Company was estopped from making any point as to the form of the verdict, or the finding of the jury, it having through its counsel made the solemn admission in judicio, and invoked the charge of the court, to the effect that it was the employer of the plaintiff,, and that if there was any liability, it was liable and not the Hilton & Dodge Lumber Company; that the Hilton & Dodge Lumber .Company can not complain, because the ease was discontinued as to it, and because no judgment was entered up by the plaintiff as to it, and because the plaintiff, upon the trial 'of the ease, disclaimed any right to recover against the Hilton & Dodge Lumber Company, and the plaintiff now disclaims any right against the Hilton & Dodge Lumber Company, ’under the verdict and judgment rendered in said case, and disclaims that the verdict and judgment are against the Hilton & Dodge Lumber ■ Company, or that the plaintiff has any further right or claim against the Hilton & Dodge Lumber Company by virtue of the matters set up in the declaration in the case. The court overruled the motion in arrest of' judgment, and the defendants excepted. The defendants then moved for a new trial, raising in the motion the same questions made in the motion in arrest of judgment, and in addition thereto set out other grounds' of error.</p>

<p>1. In a suit by the payee against several parties as joint principal makers of a promissory note, the testimony of one of the defendants, that she was in fact a surety and was a married woman at the time she signed' the note as surety, was not competent to prove these allegations of her plea, where one of the defendants, who was .admittedly liable on the note as principal maker, was dead, and tier administrator was a joint defendant with the witness.</p> <p>2. Where several parties are sued as joint makers of a promissory note, and one of them files a plea that she was a married woman when she signed the note, and that she was simply a surety thereon, one of the other defendants is a competent witness to prove these allegations, although the administrator of another defendant is a party to the suit. The testimony of such witness is in no sense in his own favor, but is really against his interest.</p> <p>3. Where a bank, as payee of a note, sued several persons as principal makers, and a material issue in the case made by the plea of one of the defendants was that this defendant had signed the note as surety, an entry on the books of the bank, tending to show that the bank had treated the defendant as a surety and not as the ^principal maker of the note, was admissible, as illustrative of this allegation of the plea.</p> <p>4. Whether the testimony referred to in the foregoing headnotes, which the court rejected, would have been sufficient to establish the defense of suretyship relied upon was a question for the jury; but irrespective of this testimony, there was enough evidence in the case to have required a submission of the issue of suretyship to the jury, and the court erred in directing a verdict for the plaintiff.</p>

<p>Action for slander; from city court of Savannah — Judge Freeman. March 30, 1910.</p> <p>Jackson sued the Atlantic Coast Line Railroad Company, alleging, in substance, as follows: On or about March 1, 1909, he was employed by the defendant in doing piece work as a car repairer. He was paid a certain price for each piece of work doiie on or about the cars whenever such work became necessary. His work for the defendant was done in a suitable, proper, and workmanlike manner, and there should have been no complaint or objection as to his work. PTe was called upon to repair a box car, in a manner specifically described in the petition. He did this work, and a duly authorized inspector of the defendant, whose duty it was to inspect, write up, and credit him with the work he had done, duly inspected this work, wrote it up to his credit, and reported it to the highet officials of the defendant, whereupon it became the duty of the company to pay him for the work. After this work had been performed, a foreman of the company required him to go with him to inspect the work, and when they got there, the master mechanic of the company was present, lie being the officer who had general supervision, with power and authority from the company to act in the premises. The master mechanic asked petitioner what work he had done on the car, and petitioner told him. Thereupon the master mechanic said to him, “You know -you did not put this in. This is an old-bushing.” Petitioner then repeated his statement that he had put the bushing upon the coupler. Subsequently the foreman, acting under directions given him by the master mechanic, informed petitioner that he was discharged, sajdng, “You did not put in that bushing. You did not do the work. In other words, you are discharged for stealing.” This statement of the foreman was not true, and the foreman, in telling him that he was discharged for stealing, thereby accused him of the offense of larceny, or of cheating and swindling, which is an ignominiotis offense and punishable under the laws of Georgia by fine and imprisonment, and imputed to him a crime involving moral turpitude. Petitioner alleges that being tlms accused of crime and thus discharged from the employment of the company, the company inflicted a gross tort upon him, in discharging him from emplo.yment for a supposed crime which he did not commit, thereby, inflicting upon him great mental suffering, humiliation and mortification, and tending to subject him to public contempt, and ridicule among his friends and associates. The language above set out was used to him by the foreman in the presence of some of his friends, companions, and associates, who heard the statement made by the foreman, and in the minds and opinions of his friends, companions, and associates he has been held up to ridicule, hatred, and contempt. He “therefore sues for the tort which has been done him in his wrongful discharge, for the great mental pain, suffering, and anguish consequent upon the false accusation made against him as a reason therefor, for the humiliation and mortification he has suffered, for the hatred, ridicule, and contempt which he has been made to undergo on account of the tortious conduct of the said defendant company; by reason of all of which petitioner has been endamaged in the sum of $1,999.”</p> <p>A general demurrer and several grounds of a special demurrer to the petition were sustained, and the plaintiff excepted.</p>

<p>There was no error in overruling the certiorari.</p>

<p>Trover; from city court of Floyd county — Judge Hamilton. March 15, 1910.</p>

<p>Complaint; from city court of Valdosta — Judge Cranford. May 6, 1910.</p>

<p>Complaint; from city court of Floyd county — Judge Hamilton. May 23, 1910.</p> <p>The Fruit Dispatch Company, a corporation, sued Stamps & Company, a partnership, on an open account for $396.48, besides interest, for a mixed car-load of cocoanuts and bananas. At the conclusion of the evidence the trial judge directed a verdict in favor of the plaintiif, for the full amount sued for. The defendant’s motion for a new trial, which was overruled; contains, besides the general grounds, two special assignments of error, the first of which complains of the ruling of the court in admitting in evidence, over objection that they were “the rankest kind of hearsay evidence,” the following answers to interrogatories propounded to the agent of the plaintiif: “Mr. Stamps called up our office by long distance phone from Rome,-Georgia. I answered the phone and recognized Mr. Stamps’ voice. When I found an order was to be given, I called Mr. Carter to the phone, and he took the order over the phone and called the same off to me, and I wrote the same down. The-order was for 400 stems of bananas, weighing 14,155 pounds, at the price of $1-60 per hundred pounds, and for 5,000 cocoanuts, at $84 per thousand, f. o. b. Mobile, Alabama. I did not receive the order, or any part of it, from Mr. Stamps, but took the same as it was called off to me from the phone by Mr. Carter. . . There was no guaranty of freight rates. Nothing was said about guaranteeing freight rates.” The witness whose testimony was objected to was the resident manager of the Atlanta branch of the plaintiff corporation, and the Mr. Carter mentioned was the bookkeeper of the plaintiff. Defendants admitted giving the order for the cocoannts, and made a continuing tender of the price of the cocoannts. They also admitted giving the order for the bananas, but testified that the order for the bananas was given on the express condition that the freight rates on the mixed car-load of cocoannts and bananas should be at car-load rates on the bananas with the cocoanuts. Stamps, one of the defendants, testified, that .the cashier of the plaintiff told him that he thought he could get this rate for him, and that he, Stamps, told the cashier if he could, to let him know; that about a week after this conversation Mr. Carter, the bookkeeper, called him up and informed him that he could get the car-load rates on the mixed car, and the defendant told him “all right,” that he would take one half of each, about fifty bags of cocoanuts and the remainder of the car in bananas. Stamps further testified, that when the ear came, he took the cocoannts out of the car and paid the freight on them; that the agent of the railroad demanded a greater rate on the bananas than the car-load rate of freight; that he offered the agent the amount of freight according to the car-load rates and according to the amount of freight designated and fixed in the bill of lading which he had in'his possession; that the agent refused to take this rate, and he then refused to take the bananas, and left them in the possession of the railroad company; that he paid the freight on the cocoanuts according to the bill of lading, and tendered the freight called for on the bill for the bananas^ and it was refused; that when the car-load of cocoannts and bananas was received, finding that the rate of freight on the bananas was greater than he had agreed to pay, he called up Mr. Carter, the bookkeeper of the plaintiff, and told him that the car of bananas had been received, but that the railroad company refused to deliver them for the freight rate, and that Carter instructed him to refuse to take the bananas unless the railroad company accepted the freight as tendered, and said he would make the railroad company pay for them; and that, acting upon these instructions, he refused to take the bananas, as the agent refused to let him take them out of the ear unless he paid the full freight rate demanded.</p> <p>The other assignment of error was as to the admission in evidence of a cipher code book, fixing and regulating the “conditions of sales of fruits between plaintiff and its customers,” and the rate of freight to be paid by the customers. The motion for' a new trial contains many objections to the reception of this cipher code book as evidence, but the only two relied upon in the argument or in the brief submitted to this court are that the order for the bananas was conditional, and did not fall within the terms of the code book, and that the alleged contract in the book was unilateral, and therefore not binding upon the defendants. The defendants admitted receiving the cipher code book from the plaintiff, and that they had for several years conducted business with the plaintiff according to this code book. The code book is long, containing many clauses, but the only portions pertinent to the question now under consideration are as follows: “Uniform conditions governing sales. In conformity with similar announcements heretofore made, the Fruit Dispatch Company (herein called the Dispatch Company) has established the following uniform conditions to govern all purchases of bananas and other fruit from it. 1. All bananas and fruit sold by the Dispatch Company delivered f. o. b. freight cars at the seaboard, with the exception of special sales provided for in clause No. 11 hereof.” Clause number 11 is as follows: “ Special sales may be made after the arrival of bananas or fruit at the final destination, to persons personally inspecting and accepting the same on the spot.” Clause 12 is as follows: “Every order given to or for the Dispatch Company, whether by telephone, telegraph, in writing, or otherwise, shall be regarded as being made under and subject to the terms and conditions herein contained. Every purchase from the Dispatch Company of bananas or fruit, and every sale thereof by it, shall be upon and subject to the terms and conditions herein contained, in every respect, unless waived in writing, signed,by the president or general manager of the Dispatch Company, it being expressly stated and understood that no officer, employee, or representative of the Dispatch Company, except only the president or the general manager, has any authority to make any contract or sale of bananas or fruit except upon and subject to said terms, conditions, and provisions.” This contract is signed by the Fruit Dispatch Company, by its president and general manager, and Stamps & Company signed, on the back of the book, an acknowledgment of the receipt by them of this code book of the Fruit Dispatch Company, and' an agreement as follows: “The undersigned hereby assents to the same and notifies and directs the Fruit Dispatch Company that every order hereafter given to it, or to any of the officers or employees, for the purchase of bananas or fruit, by the undersigned, shall be deemed and construed to refer to and contain the uniform conditions governing sales as set forth in said code book, and hereby further and expressly agrees with the Fruit Dispatch Company that in consideration of the acceptance from the undersigned of any order or orders for bananas or fruit, all sales of bananas and fruit from the Fruit Dispatch Company to the undersigned shall be under and subject to the said terms, conditions, and provisions in every respect.”</p>

<p>Appeal; from Jefferson superior court — Judge Rawlings. May Í1, 1910.</p> <p>This was a suit brought in the county court, on a promissory note. From a judgment in favor of the plaintiffs, the defendants appealed to the superior court. The case ik before this court on exceptions to the judgment of the superior court in striking the pleas and in directing a verdict for the plaintiffs.</p> <p>The note sued on recited that it was given for the purchase-money of two mules described therein, and contained a reservation of title in the vendor of the mules until full payment of the note; also the following clause: “It is distinctly understood that I am to pay for the within-described property even if it be lost, damaged, destroyed, or dies from any cause whatever. . . I distinctly state that I am the lawful owner of said property. . . The title to the same I hereby warrant against the claims of all other persons whomsoever.” The note was signed by both defendants, apparently as principal makers. The plea filed in the county court, as amended by the defendants in the superior court, alleged, in substance, that the consideration of the nóte had partially failed, in that both the mules at the time of the sale were represented by the seller to be sound and well, and that, relying upon this representation, the mules were bought, but that at the time of the purchase one of the mules was diseased and suffered from pneumonia, or some similar disease, which was not apparent to defendants, and that this mule died within fifteen days from the date of purchase, from said latent disease, and, as the mule was worthless to defendants, the purchase-price should be deducted from the note sued on, the mules being valued in the note at $250 each.</p> <p>In addition to the plea of partial failure of consideration, for the reasons stated, one of the defendants set out that he was simply surety on the note for the purchase of the mules by the principal maker, who was the other defendant, and that as such surety he had been released by reason of the following facts, to wit: On November 15, 1907, .the plaintiffs, without his knowledge or consent, rescinded the contract for the purchase of the mules, by taking back from the purchaser the mule that was still living and allowing him a credit of $250 on the note, the stated value of the mule, it being alleged by the defendant that this act of the holders of the note was a partial rescission of the contract of purchase, by which he, as security, had been wholly released and discharged.</p>

<p>Complaint; from city court of Ocilla — Judge Oxford. March 28,. 1910.</p>

<p>1. While damages for mental and physical suffering alone, disconnected from any physical injury or pecuniary loss, can not be recovered from a telegraph company for negligence in failing to transmit and deliver a telegraphic message with* due diligence, yet the company is liable for any physical or bodily injury or pecuniary loss, directly traceable to its negligent conduct as the proximate result thereof; and mental and physical suffering resulting from the bodily injury may be considered as an element of damages.</p> <p>2. Under the allegations of the petition in this case, it was a question of fact, for the jury to determine, whether the negligent failure of the telegraph company to transmit and deliver a telegram to the physician, whereby ho was prevented from earlier attendance and earlier medical or surgical treatment, was the proximate cause of the loss of the plaintiff’s eye. '.</p>

<p>There was no material variance between the allegations of the indictment and the proof in support of the allegations; and the evidence, under the law, demanded a conviction.</p>

<p>Burglary; from Haralson superior court — Judge Edwards. October 19, 1910.</p>

<p>Certiorari; from Chatham superior court — Judge Charlton. August 12, 1910.</p>

<p>Accusation of misdemeanor; from city court of Statesboro— Judge Brannen. September 8, 1910.</p>

<p>Conviction of manslaughter; from Jasper superior court — Judge Lewis. October 25, 1910.</p>

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

<p>For a person to defend himself against a felonious assault, even though in doing so he fires a pistol and thereby disturbs a near-by congregation assembled for divine worship, is not ordinarily to be considered such conduct as violates § 418 of the Eenal Code of 1895.</p>

<p>Certiorari; from Bibb superior court — Judge Eelton. October 31, 1910.</p>

<p>1. A witness who has drunk of a beer and has experienced the effects on himself is competent to express an opinion that it is intoxicating, even though he does not profess to be an expert and disclaims that the quantity which he drank produced intoxication.</p> <p>2. A judgment against the defendant in a civil case is mot usually admissible in evidence in a criminal case against the same person, to establish . the facts involved in the civil case. The fact of the suit and of the conduct of the defendant in relation thereto may, when taken together, constitute, in some cases, a quasi admission of facts, and, therefore, have such relevancy as to be admissible.</p>

<p>Indictment for assault; from Tattnall superior court — Judge Seabróok. November 19, 1910.</p>

<p>Certiorari; from Richmond superior court — Judge Hammond. November 1, 1910.</p>

<p>Foreclosure of lien; from city court of Atlanta — Judge Beid. January 25, 1910.</p>

<p>1. The verdict was authorized by the evidence.</p> <p>2. Some of the damages which the defendant sought to recoup were clearly not within the contemplation of the parties, and, therefore, the court did not err in omitting to refer them to the consideration of the jury.</p>

<p>Complaint; from city court of Baxley — Judge Padgett. December 24, 1909.</p>

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

<p>Trespass; from city court of Savannah — Judge Freeman. February 21, 1910.</p>

<p>Certiorari; from Eichmon'd superior court — Judge Hammond. February 12, 1910.</p>

<p>Certiorari; from Morgan superior court — Judge Lewis. March 17, 1910.</p>

<p>Action for damages; from Harris superior court — Judge Gilbert. February 17, 1910.</p>

<p>Trespass; from city court of LaGrange — Judge Harwell. February 17, 1910.</p>

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

<p>The court erred in directing the verdict.</p>

<p>Action for damages; from city court of Bainbridge — Judge Harrell. March 16, 1910.</p>

<p>Complaint; from city court of • Richmond county — Judge Eve. March 18, 1910.</p>

<p>Complaint; from city court of Newnan — Judge Freeman. March 21, 1910.</p>

<p>Exceptions to auditor’s report; from city court of Floyd county— Judge Hamilton. March 7, 1910.</p>

<p>Appeal; from Fulton superior court — Judge Bell. March 19, 1910.</p>

<p>Action for damages; from city court of Atlanta — Judge Beid. March 1 i, 1910.</p>

<p>Certiorari; from Franklin superior court — Judge Meadow. April 1, 1910.</p>

<p>Complaint; from city court of Abbeville — Judge Nicholson. May 11, 1910.</p>

<p>Petition for certiorari; from Pulton superior court — Judge Pendleton. April 18, 1910.</p>

<p>Action for breach of warranty; from city court of Thomasville— Judge Hammond. March 26, 1910. •</p>

<p>1. “The plea of set-off is a cross-action, and after it is filed the defendant is, in any event, entitled''to prove his ease and have judgment against the plaintiff, if it is authorized by the evidence. This right the plaintiff can not defeat by dismissing his action.”</p> <p>2. In a suit on a promissory note, where there is a set-off or counter-claim filed as a defense, and the case is then by consent referred to an auditor, and before the auditor the plaintiff objects to a consideration of the plea of set-off. on the ground that it is not a legal set-off and contemplates affirmative equitable relief, and the ruling of the auditor is adverse to him. and no exception is taken to this ruling, and the case is thereupon considered on the merits by the auditor, and the plaintiff does not renew his objection to the validity of the set-off by excepting to the auditor’s report he is concluded by the judgment of the auditor on this question and his acquiescence therein. He can not in this court for the first time except to the judgment and finding of the auditor on this point.</p> <p>3. The' writing set out in the bill of exceptions, and alleged to have been the verdict which the jury would have returned into court but for the erroneous decision of the court in allowing the entire case to be dismissed by the plaintiff, was never received and published in court It therefore can not, in a legal sense, be considered as the verdict ot the jury, and this court can not properly make this writing the verdict of the jury by directing that the trial judge now receive and publish this writing as the verdict. The case must be tried again without any reference to this writing and as though a mistrial had been' declared.</p>

<p>Indictment for .larceny; from Clay superior court — Judge Worrill. March 23, 1910.</p>

<p>Certiorari; from Fulton superior court — Judge Bell. April 12, 1910.</p>

<p>Distraint; from city court of Oglethorpe — Judge Crisp presiding. May 3, 19Í0.</p>

<p>Complaint; from city court of Floyd county — Judge Hamilton. May 26, 1910.</p>

<p>Accusation of cheating and swindling; from city court of Ilazlehurst — Judge Padgett. May 21, 1910.</p>

<p>The original payee in an instrument creating an indebtedness, and conveying to the payee the title to certain personal property as security therefor, signed and executed’ thereon the following indorsement: “Eox value received 1 hereby sell and convey to [the plaintiff] the within bill of sale, with all rights and privileges of enforcing the payment of the same that I have under the law, without recourse on me.” Held, that the indorsement was adequate to transfer not only the indebtedness, but also the title to the property specified in the paper; and that if this were not otherwise the case, it would have this effect under the act of November 22, 1899 (Acts 1899, p. 90).</p>

<p>The court pitpcI in sustaining the defendant’s plea of failure of consideration.</p>

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

<p>Action for money had and received; from city court of Jefferson —Judge Stark. May 3, 1910.</p>

<p>Action for damages; from city court of Hartwell — Judge Hodges. May 17, 1910.</p>

<p>Levy and claim; from Jeff Davis superior court — Judge Conyers. May 21, 1910.</p>

<p>Action on contract; from city court of Dublin — Judge Hawkins. May 23, 1910.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. May .19, 1910.</p>

Action lor damages; from city court of Atlanta — Judge Eeid. May 28, 1910. * The action was brought against the City of Atlanta by the minor children of one Huey, to recover damages for his death. To summarize the contents of the petition: It is alleged, in substance, that Huey was an agent or servant of the Withers Foundry and Machine Works, a corporation employed by the city to make certain repairs upon an engine used in the operation of its system of water-works.

Action on contract; from city court of Atlanta — Judge Reid. June 8, 1910. The questions in this case arise on the following statement of facts: A petition in involuntary bankruptcy was filed in the district court for the northern district of Georgia against Inman & Co., of which firm the defendant in error, James R. Gray, was a partner, and an adjudication in bankruptcy followed.

<p>1. The court erred in awarding a nonsuit. The decision is controlled by .the ruling in Flannery v. Harley, 117 &a. 483.</p> <p>2. The term “on cash sale,” as applicable to sales of co'tton, corn, rice, and other products by planters and commission merchants under the i provisions of the code (Civil Code of 1895, § 3546) is not confined to sales where the payment of actual money is to be made immediately, but includes all sales where it is expressly understood that the payment of actual money shall not be delayed for any longer period of time than is necessary, in the ordinary and usual course of business, to reduce negotiable paper to actual cash, and also includes such time as may 'be necessary, and may be agreed upon to be necessary, to enable the purchaser (when the seller wishes to afford that convenience) to make needed arrangements to procure the necessary cash. The fact that the seller may give a purchaser an opportunity of getting the cash and a limited period of time in which to procure it, where it is expressly understood that the seller is to receive the cash, does not defeat the rights of a planter or commission merchant, as conferred by that section of the code.</p> <p>3. Where no time is specified for payment for an article purchased, the sale is presumably for^a cash consideration; and where it appears that a planter or a commission merchant lias sold any of the products mentioned in section 3546 of the Civil Code of 1895, this presumption will prevail, in tlie absence of manifest proof that there was an agreement to the effect that payment was to be postponed as a part of the consideration, as an essential element of the contract of sale.</p>

<p>Certiorari; from Eulton superior court — Judge Pendleton. May 20, 1910.</p>

<p>Action for damages; from city court of Floyd county — Judge Reece. November 21, 1910.</p>

<p>Action for damages; from city court of Polk county — Judge Irwin. April 10, 1910.</p> <p>The plaintiff, who was fifty-four years old at the time, was injured by having two fingers cut off by a planing-machine that he was operating as an emplee in the defendant’s mill. He alleged that the defendant and its vice-principals failed to keep the knives or bits of the planer sufficiently sharp to hold the piece of timber he was trying to dress, and the dullness of the knives caused the timber to slip and to turn diagonally and crosswise; and these movements were unexpected and could not reasonably have been anticipated, and they caused his hand to slip off the timber and on the knives; that the knives were out of line, and one end of the same slipped down out of place, and they were old, badly worn, and dangerous for use, and this condition rendered the use of the planer difficult, because it was one that required an operator to hold with his hands the lumber being dressed, and the only means of guiding it on the knives was by holding it and pressing downward on the blades as they revolved, and their worn and uneven edge caused the timber to jerk out of place and to throw his hand against the knives; that the defect was latent so far as he was concerned; that he had not equal means with the defendant and the master mechanic to know of the condition; that the defendant knew, or by the use of ordinary diligence could have known, of the defect, and was negligent in failing to furnish a machine of reasonably modern use, and such as is used by diligent persons for dressing such lumber, and was negligent also in failing to provide a reasonably safe place for the plaintiff to work.</p> <p>The plaintiff testified, among other things, as follows: Mr. Gorton, the general manager of the mill, hired me and turned me over to Mr. Johnson, the master mechanic. A piece of pine lumber with no wind shakes or knots in it, four inches square and eighteen inches long, had to be dressed and hollowed out to fit a pair of trucks. Johnson said “I want you to fix this pair of trucks as quick as you can. . . You go ahead and dress your lumber; everything is all right; go ahead and dress it.” It was the planer we were talking about. It was one you had to bear down on. I always called it an old fashioned buzz-planer. It is not the kind that is in modern use now; the self-feeder is now in general use more than any other. I did not know anything about the condition of that planer before I went to work on it and could not tell whether or not anything was wrong about it. I did not notice the condition of it at all; only I thought it was all right. I had been at work on it a few days before, and it was all right then. After I was hurt I discovered the blades were dull and the bits were dropped out of line, one corner being further down than the other. I was pushing the timber lengthwise; the bits knocked the timber around and that threw the left hand into the bit. It was “sorter catecornered” with the planer, and it could not have done it if' the bits had been in line. Mr. Gorton told me it was the master mechanic’s duty to look after that machinery and keep it in reasonably good repair. I had nothing to do with inspecting that planer or any machinery with which I worked, and no instructions about anything of that sort. I had been at work at this mill about fifteen months. Off and on I was called on to do carpenter work, and had used this machine sometimes. It was there all the time I was at the mill. I have seen better and safer machines at other mills — self-feeders. That is the only one I ever saw just exactly like it. I never did have to fix the planer, and could not have known it if the knives were worn out. They ran nicely and worked all right the last time I used the machine. There was a guide on the machine. I do not recollect definitely how high it was. I suppose you could move it from the back to the front of the table. I could not say what there was to prevent me from moving it over to within four inches of the front of the machine; only they were hurrying me. It was set, I suppose, already about half way. I do not know whether, if I had moved it within four inches of the front and run the timber along, I could have it cover the entire surface of the knives, or whether that would have prevented it from becoming crosswise of the table or not; etc.</p> <p>Another witness testified: Johnson was employed as regular master mechanic and his duties were to look after the carpenter shop and all the repair work of the mill. After Browning was hurt we looked at the planer and found the bits a little dull, a few gaps in one, and one a little lower at one énd than the other. The master mechanic always looked after and kept up the planer. New blades had been there for this machine for two or three weeks, to be put in place of these old ones. I do not know why they had not been placed, or how long the old ones had been used. Machines of that character' are in use, but there are better ones. Those now used ordinarily have an automatic feed.</p> <p>Another witness testified: A few minutes after Browning’s injury occurred, he heard Gorton and Johnson talking at the office, and Gorton said he had worked Browning for several years. Johnson said the planer was in bad shape, that it was through neglect the machine had not been fixed, that he had not put it in good running order, that they had some knives or blades there for it and he had not put them on at all, and that it was in bad running order for some time.</p> <p>The plaintiff excepted to the grant of a nonsuit.</p>

<p>Complaint; from city court of Miller county — Judge Busli. February 26, 1910.</p>

<p>Indictment for misdemeanor; from Douglas superior court— Judge Edwards. January 29, 1910.</p>

<p>1. While an accord and satisfaction will result where, in case of a dispute between the parties, the one tenders and the other accepts a cheek reciting that it is in payment in full of the particular demand, yet, unless the written contract or memorandum so fully discloses what transaction is involved as to cut off parol inquiry, under the parol-evidence • rule, it is competent for the parties to show that the contemplated settlement fell through because of the failure of one of the parties to perform an agreement which he made in connection with the transaction.</p> <p>2. The verdict, though apparently against the weight of the evidence, is supported by some of the testimony, and this court can not overrule the discretion of the trial judge in refusing a new trial.</p>

<p>Action upon guaranty; from city court of Tifton — Judge E. Eve, April 9, 1910.</p>

<p>Garnishment bond; from city court of Atlanta — Judge Eeid. April 25, 1910.</p>

<p>Certiorari; from Worth superior court — Judge Park. April 25, 1910.</p>

<p>1. The burden of proof was upon the plaintiff to prove its account, and while proof that the goods sold to the defendant were delivered to a common carrier, and by the carrier delivered to the. defendant, would, without more, have required a finding in favor of the plaintiff, lor the contract price of the goods thus shipped and delivered, still the evidence as a whole failed to show that all of the goods said to have been delivered were in fact delivered to the common carrier.</p> <p>2. The inference that all of the goods alleged to have been delivered to a common carrier to be by it delivered to the purchaser were in fact delivered to the latter, arising from the delivery of a box or package alleged to contain such goods, may be rebutted, when it appears that a 'portion of the shipment is missing, by proof of facts and circumstances which satisfactorily establish the fact that the missing portion was not delivered to the carrier. The facts that articles said to have been shipped by the seller to the purchaser' are missing when the box or package said to contain the entire shipment is opened by the latter, that the original package containing the shipment* gives no evidence of having been opened or tampered with en route, and that all vacant space in the package other than that occupied by the articles which were received is filled with papers and circulars advertising the business of the seller, may authorize the inference that the missing portion was not in fact delivered by the seller to the carrier.</p> <p>3. Where a shipment consists of a number of articles, and the bill of lading issued by the carrier makes no further reference to the character or identity of the separate articles composing the shipment than the approximate weight of the shipment as a whole, the shipper should show, otherwise than by the bill of lading, that all of the articles contained in the shipment were in fact delivered by him to the carrier.</p>

<p>1. The failure of a petition to show jurisdiction is an amendable defect; and if the delinquency is not challenged by demurrer, it is so cured by the verdict that motion in arrest of judgment will not lie therefor.</p> <p>2. Where a motion for nonsuit, or for a dismissal in the nature of a non-suit, is overruled, and the defendant thereafter introduces evidence by which the deficiency in the plaintiff’s evidence is cured, the error, if any, in overruling the motion for nonsuit is also cured.</p> <p>3. If a person delivers a commodity to a railroad company for shipment from one county in this State to another, and the commodity is never shipped, and the evidence is such as to authorize the inference that the company or some of its agents made way with the commodity without shipping it from the point where it was delivered to the carrier, an action of trover and conversion may be maintained against the carrier in the county where the delivery to the carrier and the conversion took place.</p> <p>4. The evidence authorized the verdict.</p>

<p>Complaint; from city court of Sylvester — Judge Williamson. May VH\ 1910.</p>

<p>There was no such material variance between the contract as alleged and the contract as proved as to authorize a nonsuit; and the evidence,' taken as a whole, authorized the verdict rendered. ' o</p>

<p>Action for damages; from city court of Floyd county — Judge Hamilton. May 24, 19Í0.</p>

<p>The evidence authorized the verdict.</p>

<p>Where one person furnishes to another commodities or services, under a negotiation or arrangement definitely fixing the terms under which the person to whom the services or commodities are furnished shall pay for them, the person so furnishing can not recover of the person receiving for the value of the commodities or services on a quantum meruit upon the theory that the- negotiation or arrangement under which the parties acted was so unilateral or indefinite in its terms as that it did not create a valid contract fully enforceable. An indefinite or unilateral agreement is binding upon the parties as to its terms so far as they have mutually acted upon them.</p>

<p>Indictment for aiding escape; from Worth superior court— Judge Park.. June 4, 1910.</p>

<p>1. Although the evidence strongly preponderates against the verdict, yet since there is some evidence to support it, this court has no jurisdiction to grant a new trial on the ground that the verdict is contrary to the evidence.</p> <p>2. Causes of action ex delicto can not, except in some special instances, he set off against a suit proceeding ex contractu. While damages resulting from the plaintiff’s breach of a contract sued on may he set off by plea of recoupment, still this'right of set-off is not broad enough to include damages alleged to have arisen from the plaintiff’s wrongful act in connection with a transaction legally distinct from the contract sued on, even though closely connected with it in point of time.</p> <p>3. Where a promissory note is payable on a fixed day, and not “on-or about” a fixed date, and the debtor makes payments before the maturity of the note, he is not entitled, in the absence of an agreement to the contrary, to interest on the payments from the time they are made up to the date the note is due.</p>

<p>The claimant having shown title in himself, and the plaintiff in fi. fa.- having failed to show that title was ever in the defendant in fi. fa., it was error to direct a verdict finding the property subject to the execution.</p>

<p>Indictment for assault to murder; from Miller superior court— Judge Worrill. June 17, 1910.</p>

<p>The evidence authorized the verdict, and the charge of the court was free from error. If fuller instructions on any specific phase of the case were desired, they should have been requested.</p>

<p>Accusation of misdemeanor; from city court of Cartersville— Judge Route. June 28, 1910.</p>

<p>1. The evidence demanded the conviction.</p> <p>2. There is a manifest difference between the degree of latitude allowed the trial judge as to statements concerning the contents of testimony when the court is ruling merely upon the admissibility of testimony and when statements of a like character are embodied in the charge of the court to the jury. The statement of the judge in the present ease, in ruling upon the admissibility of certain testimony offered, plainly had no reference to the weight or effect of such testimony if it had been offered or should thereafter be offered. Where only the admissibility of testimony is involved and a ruling is invoked upon that point, it is frequently necessary for the presiding judge to state his recollection of some portion of the testimony, in order to make his language such as to convey intelligently to counsel the scope and effect of the court’s ruling.</p>

<p>Indictment for assault to murder; from Lowndes superior court —Judge Mitchell. July 1, 1910.</p>

<p>Action for damages; from city court of Bainbridge — Judge Crosland presiding. July 5, 1910.</p>

<p>Conviction of manslaughter; from Gwinnett superior court— Judge Brand. July 12, 1910.</p>

<p>Action for insurance policy; from city court of Nashville — Judge Buie. July 20, 1910.</p>

<p>1. In any case in which the inquiry is material the method in which a public road was established — whether by legislative enactment, by order of the county authorities, by prescription, or by dedication, — must be shown. Where a witness, without objection, testifies that a certain road is a public road, and no effort is made to test the sources of his information or question his statement that the road in question is in fact a public road, it must be assumed that more specific and definite proof of the fact that the. road is lawfully a public road was waived. An opinionative statement of a witness, even though it be a conclusion unsupported by such facts as are necessary to constitute a road a public road, where no objection is urged thereto upon the trial, can not be challenged for the first time upon review, as incompetent and insufficient.</p> <p>2. A conviction of being intoxicated upon a public highway is not supported by proof that the defendant was intoxicated at a store within 15 or 30 feet of the public road.</p>

<p>The evidence being insufficient to show that the buggy alleged to have been sold by the defendant to the prosecutor was in fact subject to a lien superior to the right acquired by the prosecutor as purchaser, and there being, for that reason, no proof that the prosecutor had sustained loss in consequence of the representation made by the defendant, his conviction was unauthorized and contrary to law.</p>

<p>Accusation of unlawful sale of liquor; from city court of Macon— Judge Hodges. August 27, 1910.</p>

<p>1. An accusation which charges that the accused did, on a named date, in the county of the prosecution, “sell and barter for a valuable consideration, both directly and indirectly, alcoholic, spirituous, malt, and intoxicating liquors, intoxicating bitters, and other drinks which if drunk to excess will produce intoxication,” is not subject either to general demurrer or to special demurrer, on the ground that it does not set out with sufficient definiteness the offense charged.</p> <p>2. If the sentence of the court is within the limits prescribed by law for the offense charged, this court has no jurisdiction to review the sentence or the court’s refusal to reduce it.</p> <p>3. The ground of the motion for new trial relating to alleged newly discovered evidence is not such as to require a reversal.</p>

<p>1. The evidence amply authorized the verdict.</p> <p>2. It is no valid ground of objection to the admission in evidence of an incriminatory statement or confession made by the accused in a criminal case that the language indicated that the accused had committed also another and separate offense.</p> <p>3. No valid exception can be taken by a party to the court’s giving the jury an instruction where the party himself has requested the giving of that instruction, either verbally or in writing.</p>

<p>Accusation for carrying concealed weapon; from city court of Dublin — Judge Hawkins. October 10, 1910.</p>

<p>Accusation of cheating and swindling; from city court of Eastman — Judge Griffin. November 14, 1910.</p> <p>Moore was convicted of a violation of the “labor-contract act” of 1903 (Acts 1903, p. 90). In his motion for a new trial, the refusal of which is assigned as error, he alleged that the verdict w,as contrary to law, evidence, etc.</p> <p>The contract upon which the accusation was based is in the following language: “$24.01. Eastman, Ga., June 23, 1909. August 15th after date I promise to pay to the order of A. P. Petway twenty four 07/100 dollars at Eastman, Ga., for value received, with interest from maturity at eight per cent, per annum until paid, the same to be computed from date, unless this note is paid at maturitj', with all cost of collection, including ten per cent, attorney’s fees on principal and interest in case of collection by suit or through an attorney; and to secure the payment of this note I hereby mortgage unto said payee, his heirs and his assigns, the following property, unincumbered, to wit:</p> <p>“This contract made and entered into this the 22 day of June, 1909, between A. P. Petway and C. C. Moore, witnesseth, that on August 15th said C. C. Moore, in consideration of the above $24.07, in hand paid, and receipt is hereby acknowledged, as advance' money for cotton picking, agrees to pick cotton for A. P. Petway at 50 cents per lOOib. seed cotton on place known as John Herrington place, where Henry Ingram now lives, 16th District, Dodge Co., Ga., until this obligation is fully released on December 1st, 1909. This contract to expire. And for the consideration aforesaid, I hereby, for myself and family, expressly waive ail homestead rights and exemptions which by the laws, State or Federal, are allowed to me and my family. I also waive the benefit of the exemption of my daily, weekly, or monthly wages or salary from garnishment, as against this obligation or any renewal of the same.” Signed and sealed by Moore.</p> <p>It was contended that the contract was not within the terms of the statute; that it was security for the payment of the note therein described; that no time was fixed for the beginning or termination of the labor, and that the advance was made on the note, and not on the contract.</p>

<p>1. There was no error.</p> <p>2. The affinity dependent upon the relationship of brother-in-law does not confer the legal right of mutual defense.</p> <p>3. In any case in which the defense urged is that the killing of the deceased was necessary to save the life of another person, the relationship existing between the slayer and the person alleged to have been defended, whether the tie be one of affinity, consanguinity, or close friendship, or even the defenselessness of a person whose life is in danger, may be considered by the jury in connection with all, the facts and circumstances of the case, in determining whether the homicide stands upon a like footing of reason and justice with homicide in self-defense.</p>

<p>1. Where the indictment charged that the accused “did unlawfully slioot a pistol and discharge the same while in a passenger ear,” and the evidence showed that he shot and discharged the pistol while on the steps or platform of the car, held, that this was not a material variance. The words “in the car,” as used in the statute, construed with the context and in accordance with the manifest purpose of the act, are equivalent to “on the ear.”</p> <p>2. The trial judge did not intimate any opinion on the facts, in construing the words “in the car,” contained in the statute, as meaning “on the car,” and it was the duty of the jury to accept such construction as matter of law.</p>

<p>Indictment for hog-stealing; from Early superior court — Judge Worrill. December 15, 1910.</p>

<p>Assault with intent to rape; from Worth superior court — -Judge Parker presiding. October 19, 1910.</p>

<p>Indictment for hog-stealing, from Appling superior .court— Judge Conyers. November 12, 1910.</p>

<p>Accusation of pointing pistol; from city court of Amerieus— Judge Crisp. December 5, 1910.</p>

<p>There was no error in refusing a new trial.</p>

<p>1. In the absence of an amendment to tlie second paragraph of the defendants’ answer, giving the information to which the plaintiff was entitled and which was properly requested by the special demurrer, as well as in view of the fact that the third paragraph of the answer, which set up that the market value of the new log carriage was $150, failed to allege any reason why failure to furnish one half of the said carriage entailed upon the defendants a damage of $500, the damages claimed were too vague and indefinite, and the answer was properly stricken.</p> <p>2. The defects pointed out by the special demurrers wye substantial, and, upon failure of the defendants to amend the pleas in these respects, it was not error to strike their answer.</p>

<p>1. A brief of evidence which is not approved by the trial judge can pot be considered by this court, and a motion for a new trial may be'dismissed as incomplete although what purports to be a bi'ief of evidence has been filed, unless, either before or after such filing, it be verified by the approval of the trial judge.</p> <p>2. Where a movant for a new trial is' allowed until the hearing to prepare and present for approval a brief of the evidence, and no brief is presented when the motion is called for a hearing, the motion may properly be dismissed for want of a brief of the evidence, unless a sufficient reason be presented to the'court why further time should be granted for the preparation of the brief.</p> <p>3. The term “until the hearing” includes only the period of time between the date of the order granting time and the timé when the court enters upon the actual hearing, — the beginning of the hearing, — and ari attempt to file a brief of the evidence which has not been approved by the trial judge, after the court has orally announced a judgment dismissing the motion for a new trial, even though the judgment has not been’reduced to writing or signed, is nugatory.</p>

<p>Certiorari; from Floyd superior court — Judge Maddox. ' January 14, 1910.</p>

<p>Complaint; from city court of Statesboro — Judge Brannen. January 12, 1910.</p>

<p>Action for damages; from city court of Sandersville — Judge Jordan. January 27, 1910.</p>

<p>Action for damages; from city court of Savannah — Judge Ereeman. March 31, 1910.</p>

<p>Certiorari; from Henry superior court — Judge Reagan. April 27, 1910.</p>

<p>Complaint; from city court of Hartweil — Judgé Hodges. April 11, 1910.</p>

Indictment for misdemeanor; from Cobb superior court — Judge Morris. May 14, 1910. Dobbs was convicted of a violation of the general tax act for 1908 and 1909.

<p>Certiorari;' from Paulding superior court — Judge Edwards. June 9, 1910.</p> <p>This was a proceeding under the Civil Code of 1895, § 4760, .to abate a nuisance alleged to have been caused by the" obstructing of a private way. The verdict was against the defendant.</p>

<p>1. Direct exceptions to a ruling upon pleadings in a civil casé can be presented by a bill of exceptions only when the bill of exceptions is tendered to the judge within thirty days from the ruling complained of. Such exceptions are never proper subject-matter of a- ground of a motion for a new trial. The defendant in the court below did not file exception pendente lite to the ruling of the court in striking a portion of his plea, and the ground of the motion for a new trial complaining of the ruling can not be considered.</p> <p>2. Proof of a paper offered in evidence is always necessary when its execution is denied in a plea of non est factum.</p> <p>3. It is well recognized that the execution of a contested paper and the genuineness of the signature of the purported signer may be established by a comparison of the disputed writing with other writings, proved or admitted to be genuine. This character of evidence is secondary only when there is a subscribing witness.</p> <p>4. The statements of fact made by the trial judge in approving . the grounds o1 a motion tor a new trial are absolutely controlling, and grounds not approved by him can not be considered. No contention dependent upon facts wliolly at variance with those stated by the court can be made.</p> <p>5. One partner may sue another tor ¡id indebtedness growing out of transactions between them as individuals: but Tor one partner to maintain an action against another, the cause of action must be wholly disconnected from the partnership, unless there has been a settlement of the partnership affairs, and a balance struck, or unless, at least, the affairs of the partnership are so settled that the jury can ascertain what is justly due as a balance by one partner to the other to complete the settlement agreed upon.</p> <p>6. The evidence warranted the verdict, and there was no error in refusing the motion for a new trial.</p>

<p>Certiorari; from Bibb superior court — Judge Felton. June 25, 1910.</p>

<p>1. Where a single penal statute may be violated in one of several ways not repugnant to one another, the accused may, in an indictment containing a single count, be charged with violating the statute in each and all of the several ways prohibited in the statute; and in such cases proof of the commission of any one of the acts by which the statute • is violated will support a conviction.</p> <p>(a) The prohibition act of 1907 — Acts 1907, p. 81, Penal Code (1910), § 426 et seq. — relates to a single subject-matter, though it may be violated in a number of ways. It is permissible, therefore, that an indictment should in a single count charge a violation of that act in all of the separate ways mentioned in the act, or in any one or more of the ways.</p> <p>(6) Such an indictment is to be considered as charging but one violation of the law and as merely varying the details of the violation, and only a single punishment can be imposed as a result of the conviction.</p> <p>2. In an indictment charging a violation of the State prohibition law, it is not necessary, so far as an alleged sale is concerned, to set out the facts as to the person to whom the liquor was sold, how much of the same was sold, or of what the valuable consideration for which ib was sold consisted; and so far as an alleged violation through the accused’s keeping it on hand at his place of business is concerned, it is not necessary to describe the place of business, further than to locate ft in the county of the prosecution. Where keeping on hand at a public place is charged, the indictment should specify what public place is referred to.</p> <p>3. When it affirmatively appears that an error has not resulted in injury, no new trial will be granted therefor. In determining whether error has resulted in injury, the court may look to the record as a whole.</p> <p>4. There was no error in the court’s instructing the jury that if the accused kept a public restaurant, consisting of two main eating-rooms and a kitchen connected therewith, and kept intoxicating liquor on hand in the kitchen, he was guilty of violating the State prohibition law.</p> <p>5. The special request to charge was sufficiently covered by the general charge.</p>

<p>Indictment for misdemeanor; from Glascock superior court— Judge Hammond presiding. July 20, 1910.</p>

<p>1. The right of the plaintiff to recover costs as well as principal and interest upon his debt is in no wise conditioned upon any such pi-oposition as that he shall wait until the return day of the court before filing suit, notwithstanding the statutory notice which is a condition to the recovery of attorney’s fees has been given.</p> <p>2. Notwithstanding that the plaintiff may have filed suit prior to the return day of the court, upon a promissory note on which he claims attorney’s fees, the defendant may prevent a recovery of attorney’s fees by tendering the amount of the debt on or before the return day of the court; but the amount of the debt in such eases includes principal, interest, and the accrued costs.</p> <p>3. Where, on the return day of the court, a defendant who has been served with the statutory notice seeking to charge him with attorney’s fees makes a tender of the principal and interest, but couples the tender with the condition that the plaintiff shall pay the costs which have accrued, the tender is not good, and is not sufficient to relieve the defendant from liability for attorney’s fees.</p>

<p>1. The' evidence, though circumstantial, is legally sufficient to support the verdict.</p> <p>2. Counsel for the accused in a criminal ease has the right to argue to the jury the law applicable to the case in connection with the facts shown. To this end it is his right to read, either to the jury in the presence of the court or to the court in the presence of the jury, such law as he deems applicable; but the court has the right to refuse to allow counsel to argue to the jury or to discuss with the jury, as a part of the law of the ease, propositions of law that are not applicable to the issues. Hence, it is not an abuse of discretion for the trial judge to require counsel to read the law to the court in the presence of the jury (instead of allowing him to read it to the jury in the presence of the court), in order that the court may, before the argument has proceeded beyond the mere reading of the law, determine upon its applicability and decide the question as to whether he will allow counsel to present it to the jury. In this case there was no abuse of diseretion.</p>

<p>Accusation of carrying concealed weapon; from city court of Dublin — Judge Hawkins. October 10, 1910.</p>

<p>Certiorari; from Pierce superior court — Judge Parker. September 9, 1910.</p>

<p>Complaint; from city court of Atlanta — Judge Eeid. September 24, 1910.</p>

<p>1. The verdict of voluntary manslaughter was authorized.</p> <p>2. The judge did not abuse his discretion in refusing to grant a new trial on file ground of newly discovered evidence.</p>

<p>Certiorari; from,Bibb superior court — Judge Felton. October 31, 1910.</p>

<p>1. Where a bailee refuses, upon demand, to deliver the property bailed or to account for it, a conversion may be implied, and the bailor may sue for a breach of the contract of bailment and recover the martcet value of the property.</p> <p>2. The transferee of a warehouse receipt for cotton is entitle! to demand the delivery of the cotton upon presentation of the warelouse receipt. Compliance with the stipulations requiring the presentation of a warehouse receipt may be considered to have been waived, waen the warehouseman, of. whom delivery is sought, denies that the hdder of the receipt, seeking delivery, owns any such property, or that it is stored in his warehouse. The refusal to deliver, or the denial of the claimant’s right to have the property delivered to him, without my point being made on the non-production of the warehouse receipt or other written evidence of the deposit, is a waiver of formal presentation thereof.</p> <p>3. The plaintiff proved his case as laid, and it was error to award a non-suit.</p>

<p>Action upon policy of insurance; from city court of Atlanta— Judge Calhoun. December 16, 1909.</p>

<p>Complaint; from city court of Savannah — Judge Freeman. January 21, 1910.</p>

<p>. Complaint; from city court of Americus — Judge Crisp. February 4, 1910. o</p>

<p>1. The court erred in awarding a nonsuit. While, prima facie, the grant of an injunction conclusively establishes that there was such probable cause for the application for injunction as will bar a subsequent action by the losing party for the malicious use of legal process even though damage ensued, still if the applicant for injunction did not recite the facts fairly, or if the injunction was procured by perjury, then the order or judgment granting an injunction will not afford protection to him in a subsequent suit for damages arising from the malicious use of civil process or the malicious prosecution of,a civil case.</p> <p>2. The party against whom it is sought to assert the judgment on injunction may avoid its effect by showing .that it was obtained by reason of the fact that the opposite party fraudulently misrepresented the facts to the judge, or by showing that the injunction was obtained through the corruption of. the judge, induced by the opposite party. Proof that the judge was biased and prejudiced in the ease is incompetent and irrelevant, unless the bias'or prejudice was directly or indirectly induced or produced by the party seeking the injunction. In no case can the judgment be impeached by the judge’s subsequent declarations in reference thereto.</p>

<p>1. Every effect is the result of a combination of .causes, in the .broad sense of the word “cause.” The legal meaning of the word “cause” .is somewhat different. The law has adopted as its normal standard that course of conduct in which the acts of all persons concerned are 'legal and conducted with common prudence. If hurt is occasioned to some individual without this standard course of affairs .being disturbed, it is considered as having happened from no juridie cause, and is attributed to what is called an accident. If a hurt occurs which would not have occurred, according to the laws of ordinary human probabilities, if some wrongful ,or negligent act had not disturbed the normal course, the law considers the normal and prudent activities of such persons as were concerned in the transaction as conditions, and not as causes, and regards the wrong ; as operating through the innocuous medium, and as, therefore, being the legal cause of the hurt.</p> <p>2. When a negligent act so operates upon a normal situation of prudently conducted activities as to produce through it an injury which, according to the laws of ordinary human probability, would not otherwise have happened, and no other wrongful act is found among the near-by activities which have joined in bringing about the injury, the negligent act is to be regarded as the sole and proximate cause of the injury.</p> <p>3. Where a person, under a state of fright induced by the negligent act of another person, does an act which produces injury, the question whether the conduct of the person so frightened is to be regarded merely as a medium through which the negligence causing the fright operated (so as to make the negligence the legal cause of the injury), or as itself (i. e., the conduct of the frightened person) the legal cause, is to be determined in accordance with whether the situation produced by the ' prior, negligent act was such as would naturally tend to produce that . degree of fright which the particular person experienced, and whether a normally prudent person so frightened would have been likely to do some such act as the frightened person did.</p>

<p>Complaint; from city court of Sandersville — Judge E. W. Jordan. February 19, 1910.</p>

<p>Complaint; from city court of Richmond county — Judge W. F.' Eve. March 18,1910.</p>

<p>Certiorari; from Bibb superior court — Judge Felton. January 25, 1910.</p>

<p>Action for damages; from city court of La Grange — Judge Harwell. March 17,- 1910.</p>

<p>Action for damages; from city court of Polk county — Judge Irwin. April 11, 1910.</p>

<p>1. It was not error to dismiss the appeal. The appellant selected the United States mail as his agency to transmit the appeal and bond. If these papers had reached the post-office of the justice of the peace in such time that in ordinary course, if he had not been away from home, they could have been delivered to him before the expiration of the fouidays allowed for entering an appeal, the appellant could not be charged with his absence; but the papers did not reach their destination until after the fourth day had expired.</p> <p>2. The decision upon the point of law involved is controlled' by the ruling of the Supreme Court' in Griffith v. Mitchell, 117 Ga. 476. The facts in the case at bar are dissimilar to those in Harvey v. Allen, 94 Ga. 454, in the fact that in the Harvey case the appeal papers reached in due time the post-office of the officer with whom they should have been filed.</p>

<p>1. The court did not err in overruling the objections offered to the testimony and in admitting testimony illustrative of the issue, which was properly raised, that the defendant was not a tenant, but a purchaser. While a tenant can not dispute the title of his landlord, still, upon the levy of a distress warrant and in filing his counter-affidavit, he may defend by showing that the contract denominated as one of rental was in fact a contract of purchase.</p> <p>2. The testimony upon the issue thus raised was in conflict, the determination of the question whether the plaintiff was or was not the defendant’s landlord was one oí fact for the solution of the jury only, and the court erred in directing a verdict.</p>

<p>Rule; from city court of Savannah — Judge Freeman. May 10, 1910.</p>

<p>Complaint; from city court of Dublin — Judge Hawkins. May 9, 1910.</p>

<p>1. The construction and legal elieet of the contract between the parties was stated by the court to the iury with reasonable accuracy.</p> <p>2. Before interrogatories or depositions are admissible in evidence, these three things must appear, unless waived: proper execution, proper return, proper transmission. A waiver of the usual formalities of execution and return does not operate as a waiver also of the prescribed formalities of transmission to the court.</p>

<p>In this State a corporation can not buy its own stock from its stockholders to such an extent as will diminish the outstanding capital stock below the minimum stated in the charter; but where the corporation is solvent and no rights of creditors are. interfered with, an ordinary corporation which has issued stock in excess of the minimum stated in the charter may bona fide buy back from one or more of its stockholders all or any portion of the excess of stock so issued.</p>

<p>Certiorari; from Dooly superior court — Judge Whipple. H 17, 1910.</p>

<p>Indictment for burglary; from Whitfield superior court — Judge Fite. June 7, 1910.</p>

<p>1. The certiorari presented only a question of law, and should have been terminated by a final judgment.</p> <p>2. A railroad company or other common carrier may recover the difference between the amount of freight first charged for a shipment and collected from the consignee and the higher amount which should have been charged and collected under the regulations of the railroad commission. The rates of freight fixed by the railroad commission must be observed; and if a lower rate of freight than that allowed by the railroad commission is collected, an action to recover the remainder- of the true amount is maintainable, even though the consignee accepted the freight and paid the smaller amount in good faith, and although in his dealings with his customers lie has conducted his business upon the basis of the rate of freight collected.</p> <p>3. The person who is entitled- to maintain an action to recover an overcharge in freight, or liable to pay a deficiency in the amount charged, if the carrier delivers the shipment without collecting the rate prescribed ■ by the. railroad commission, is the owner of the shipment at the time that the shipment is released and possession surrendered by the carrier. And as the consignee is presumably the owner of a shipment which is ■ delivered to him, prima facie the consignee, and not the consignor, is liable for the deficiency when a carrier fails to charge and collect the full amount of freight as prescribed by the rates of the railroad commission.</p>

<p>Certiorari; from Putnam superior court — Judge Lewis. June 14, 1910.</p>

<p>Action for damage's; from city court of Atlanta — Judge Reid. May 7, 1910.</p>

<p>1. In a proceeding to eject an intruder, under the Civil Code of 1895, ■ §§ 4808 et seq., the sole question for determination is as to the good faith of the defendant in entering upon the land and in .laiming the right of possession. Title is not involved, except in so far as it may tend to illustrate the question of good faith in the entry and the possession.</p> <p>2. Unless the ground of a motion for a.new trial complaining of the refusal of the court to admit secondary evidence contains the preliminary evidence offered to show the inaccessibility of primary evidence, no question is thereby presented for the decision of this court.</p> <p>3. The error of the trial judge in admitting in evidence a deed not properly attested will not be a sufficient ground for reversal, where, irrespective of the deed, the verdict is amply supported.</p>

<p>In a claim case, where the plaintiff in h. ia. proved that the defendant m fi. fa. was in possession of the property levied upon and exercising own ership thereof just before the levy was made, this was sufficient to make out a prima -facie case and to shift the burden of proof; tor the presumption is that when title is proved to exist in a certain person, it remains in him until the contrary is shown</p>

<p>Appeal; from Chatham superior court — Judge Charlton. June 9, 1910.</p>

<p>1. Large discretion is vested in the erial judge in habeas corpus cases, and this court will not interfere with his judgment on the law and the facts, unless his discretion is manifestly abused. Unless the finding is so manifestly contrary to the evidence as to indicate passion or prejudice, it will not be disturbed.</p> <p>2. In every case where the custody of a minor child is concerned, the prime and paramount .consideration is the welfare and happiness of the child. The judge who sees the witnesses and hears them testify has so much better opportunity than the appellate court for correctly determining as to this that it is scarcely possible in any case to say, as a matter of law, upon review, that the child’s interests have been injuriously affected by tlie judgment awarding custody.</p> <p>3. In awarding the custody of an infant child, the court may provide that the opposite party shall have the right to visit the child, or that the child shall have the right to visit a party to whom the court has refused to award its custody and consequent parental control. Likewise, in rendering judgment upon a writ of. habeas corpus and in awarding the ultimate custody and control of a child of tender years to its father, tlie court may order that it shall spend every alternate month with its maternal grandmother, and be delivered to her by its father for that purpose.</p>

<p>Action for damages; from city court of Sylvania — Judge Boykin. July 7, 1910.</p>

<p>Habeas corpus; from city court of Wrightsville — Judge Jordan. October 12, 1910.</p>

<p>Petition for certiorari; from Jeff Davis superior court — Judge „ Conyers. August 13, 1910.</p>

<p>Accusation of adultery and fornication; from city court of Franklin — Judge Loftin. September 10, 1910.</p>

<p>Accusation of sale of liquor; from city court of Waycross — 'Judge McDonald. October 22, 1910.</p>

<p>Accusation of sale of liquor; from Coffee superior court — Judge Parker. November 26, 1910.</p>

<p>Affidavit of illegality; from city court of Baxley — Judge Padgett. January 19, 1910. • . .</p>

<p>Complaint; from city court of Atlanta — Judge Reid. March 18, 1910.</p>

<p>Certiorari; from Fulton superior court — Judge Bell. April 19, 1910.</p>

<p>Action on bond; from city court of Atlanta — Judge Calhoun. May 7,1910.</p>

<p>Certiorari; from Fulton superior court — Judge Bell. April 15, 1910.</p>

<p>The law involved in this ease is well settled, and, as applied to the undisputed evidence, demands a verdict for the defendant.</p>