Volume 9 — Georgia Appellate Reports

<p>1. Where, upon the levy of a fi. fa. upon certain personal property, an affidavit of illegality was filed, which was fatally defective, and'a claim was interposed by tlie same party, and tlie affidavit of illegality was dismissed by the court, it was error, upon a mere oral motion, to dismiss tlie claim upon the ground that the pendency of tlie affidavit of illegality concerning the same subject-matter and between tlie same parties at tlie time of tlie filing of tlie claim prevented tlie prosecution of the claim. The claim could not be abated, nor the point be raised, except by a plea in bar, in tlie nature of a plea in abatement. Furthermore, inasmuch as tlie affidavit of illegality was void upon its face, tlie filing of what purported to be, but in fact was not, an affidavit of illegality would not be a bar to the filing of a 'claim.</p> <p>2. The setting apart of a homestead does not divest tlie bead of tlie family of the legal title to the property. It only appropriates tlie property to a particular use, for the benefit of certain beneficiaries, and during a specified time. Where property which has been set apart and exempted is subjected to a levy, a claim may be interposed by the ' head of a family in his own name. It is not necessary that the claimant denominate himself as trustee or head of the family, if it appears from the allegations of the claimant’s affidavit that the property levied upoii lias in fact been exempted a.nd set apart for use as homestead prop- • erty. “In the nature of tilings the head of a family must represent the interests of the beneficiaries in all actions where the title to the exempted property is involved,' and it makes no difference whether he be described as tlie head of the family, or as trustee, or as agent, or si imply designated by bis own name.”</p> <p>3. There was no error in sustaining the certiorari.</p>

<p>Indictment for assault with' intent to rape; from Washington superior court — Judge Rawlings. January 29, 1911).</p>

<p>Certiorari: from Muscogee superior court — Judge Gilbert. March 11, 1910.</p>

<p>1. The rules of a master are not binding, on his servant, unless the latter has actual or constructive knowledge of them.</p> <p>The servant’s knowledge of, his master’s rules may be shown by direct or circumstantial evidence.</p> <p>3. It is one of the general duties of a servant to he reasonably diligent in informing himself as to what rules the master has promulgated, if any, for tlie doing of the work and for tlie securing of the servant’s safdty. Legal blame may attach to a servant for not informing himself of a rule of his master relating to the servant’s work and the method of performing- it, where the servant has had reasonable opportunity to inform himself of the rule, and has been neglectful in not informing himself. Generally speaking, whether a servant has been negligent in this respect is a question of fact for the jury.</p> <p>4. Where, in an action by a servant against his master for personal injuries, the defendant claims that the plaintiff should not recover, because of his violation of one of the rules of the master touching the particular employment, and the court erroneously excludes from evidence the proof of the formal printed rule, the error is not rendered harmless because there was evidence before the jury that the employees generally recognized a rule of practice corresponding in general detail to the requirements of the formal rule.</p> <p>5. “A custom in violation of a rule, known and acquiesced in by the employer or his representatives, amounts to "an abandonment of the rule to the extent to which the custom infringes the rule.” Where the servant seeks to avoid the effect of a rule by showing a waiver through customary violation of the rule, acquiesced in by the master, and the contents of the rule have not been disclosed in the evidence otherwise than by oral statements as to its general nature, it is harmful error for the court to refuse to allow the master to introduce the formal printed rule, especially where the customary practice and the printed rule are such as fairly to admit of the argument that the customary practice, though somewhat violative of the express letter of the rule, was not violative of the spirit of the rule or of the main purpose disclosed on the face of the rule.</p> <p>6. The court erred in excluding from evidence the proof offered by the defendant showing its formal rule which the plaintiff violated; and the state of the evidence and of the issues involved in the case is not such as to authorize this court to pronounce the error harmless.</p> <p>7. Except as has bí*;n indicated in the foregoing headnotes, the trial was free from material error.</p>

<p>Action for damages; from city court of Atlanta — Judge Keid. April 23, 1910.</p>

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

<p>J. The evidence authorized the jury to find that the plaintiff had been defrauded by false representations of the defendant, and that the plaintiff offered to rescind and return both the mule and the money that he had received. The refusal of the defendant to rescind obviated the nec("-sity of a formal tender of either the mule or the money.</p> <p>2. The special grounds of this motion can not be considered, because they do not set forth literally or substantially the contents of the documentary evidence which was rejected.</p>

<p>1. Under the pleadings and the evidence, the only issue of fact for the determination of the jury was whether the son of the defendant was his agent in the purchase of the goods.</p> <p>2. “Whenever a general agency has been established for any purpose, all persons who have dealt with the agent have a right to assume that his authority to deal with them in behalf of his principal continues, until, notice, express or implied, has been conveyed to them that the agency has been revoked.” Burch v. Americus Grocery Co., 125 Ga. 153 (53 S. E. 1008).</p> <p>3. Where one denies that a named person was his agent, the fact that he has admitted to a third person that the named person was in fact his agent is a circumstance illustrative of the existence or non-existence of the agency, without regard to whether the statement made to the third' person was ever communicated to any other person or not. The fact that the defendant, who denied that his son was his agent, had frequently stated to various persons other than the plaintiff that his son was his agent in reference to the matter in dispute, might be corroborative of the testimony of the plaintiff to the effect that the defendant informed him that his son was his agent; and especially would this be true where the defendant denied having told any one after a certain date that his son was his agent.</p> <p>4. There was no error in the charge of the court on the subject of impeachment. Even if the instructions were not sufficiently full as to impeachment by proof of contradictory statements, the charge was fitly adjusted to that method of impeachment which rests upon the disproof of statements made by a witness whom it is sought to impeach. The evidence in this case was sufficient to authorize the jury to find that there was an impeachment by disproving material facts testified to by a party to the cause, and also by proof of contradictory statements alleged to have been made by this party. Even if the court should' have charged more fully, the omission was not prejudicial to the defendant, and no request for more elaborate instructions was presented.</p> <p>5. The account which was attached to the plaintiff’s petition as an exhibit, and which was the basis of the suit, having been verified as required by law, and the defendant not having denied the justness and correctness of any of the items, but having pleaded, instead, that he was not liable for certain items solely because the articles charged therein had not been purchased by his authority, he must be held to have waived formal proof of the delivery of the articles charged in the account, and to have tacitly admitted that lie was liable for the account as stated, under his pleas setting up a tender of the amount he admitted to be due, and denying that he authorized the purchase of any other goods than those he admitted he had received.</p>

<p>Appeal; from Wilkes superior court — Judge Meadow. May 28, 1910.</p>

<p>1. The contract of affreightment, signed by the plaintiff, was properly admitted in evidence, and the court did not err in allowing the amendment to the defendant’s plea, which set up the agreements and obligations of the shipper with reference to the shipment and the under-taking of the shipper in the premises.</p> <p>2. The court erred, however, in directing a verdict for the defendant, for there was evidence from which a jury might- have inferred that some of t he cattle which were shipped received injuries, cuts, and bruises not dependent upon or caused by the lack of care and feeding. So far as the stock were damaged by lack of food and attention, the plaintiff was precluded from recovering therefor, because he proceeded on his journey by a passenger train and voluntarily abandoned his stock en route, in violation of his agreement to personally care for, feed, and water them,; but, as the jury might have found that some of the stock were injured by'violence which even the presence of the owner accompanying them could not have prevented, the plaintiff might have recovered for such damage as was due to injuries of the latter kind.</p>

<p>Complaint; from city court of Eeidsville — Judge Morgan. March 7, 1910.</p>

<p>Even where time is expressly declared to be of the essence of a contract, it may be waived by the conduct of the party for whose benefit the stipulation was made. In this ease the undisputed facts show that the defendant reaffirmed the contract after the expiration of the time limit for its performance by the plaintiff. The contract was therefore enforceable, after performance by the plaintiff had been accepted by the defendant, although the performance was after the expiration of the stipulated time limit.</p>

<p>1. While, under the law of this State, suicide releases an insurance company from liability under a policy issued upon the life of the suicide, still not every act of self-destruction is suicide within the purview of this rule. Legally speaking, for a person to kill himself as the result of insanity is not suicide.</p> <p>2. A policy of life-insurance is not rendered void because the risk of the insured’s killing himself while sane is not excepted therein. Even though the courts would refuse to enforce liability if the insured, being sane, killed himself, the policy would he enforceable if the death of the insured were otherwise occasioned. Whether an insurance company can lawfully contract that a policy shall be incontestable as against the defense of the insured person’s voluntary self-destruction while sane is not decided, as the case can he fully and properly decided without reference to that question.</p> <p>3. Where a case, as fully and properly viewed, necessarily turns on a single question of fact, and the trial court properly presents that question to the jui'y as the sole matter in issue for their determination, and the jury render a verdict which, by necessary implication, adopts one of the conflicting theories of fact involved in this controlling question, and the verdict is supported by evidence, a new trial will not he granted, though the trial judge may have reached this view of the ease (which, as has been stated, was the proper view) through a series of erroneous rulings upon the principles of law governing the case.</p> <p>4. It is lawful for a fraternal relief association or similar order to provide in its certificates or policies of insurance issued to its members that the contract shall be subject to the future as well as to the present laws, bylaws, or regulations of the order as adopted by the legislative or governing body of the order; and such conditions or stipulations are enforceable. However, though such an association has expressly reserved the right to modify its existing contracts by legislation from time to time to be adopted, still it is a rule of construction that all laws, by-laws, and regulations are to be considered as having reference to future contracts only, unless the intention to affect pre-existing contracts is clearly and undoubtedly expressed.</p> <p>5. Generally speaking, it is not necessary for the minutes of the legislative body of a corporation to show the vole by which a matter coming before it was adopted. A recital that the matter was adopted is generally sufficient. But, where in a legislative body a vote of more than a majority of a quorum is necessary to the passage of any law, the passage of a law can not be shown by proving merely that the proposed law was referred to a committee which reported favorably to its passage, and that the report of the committee was adopted. In general parliamentary practice the favorable report of a committee upon a matter of proposed legislation can be adopted by the vote of a simple majority of those voting. This merely gives the proposed legislation such parliamentary status as authorizes its being put on its passage; and it is not to be considered as adopted until it has been put on its passage, and has received the vote required for the passage of laws.</p> <p>6. Before the books of a corporation are admissible in evidence in favor of the corporation, their authenticity must be shown. In mutual and fraternal benefit associations and in similar orders the relations of the corporation to its members, especially where a right is asserted by the corporation against a member, can be shown only by the official records properly authenticated, except in cases where, upon a showing as to the loss or inaccessibility of the original records, secondary evidence is admissible.</p> <p>7. The secretary, or other person performing the duties of secretary, is usually the proper custodian of the minutes and official records of a corporation, and he is generally the proper person by whom to prove their authenticity.</p> <p>8. Where a case is on trial between a fraternal association and' one of its members (or his representative or the beneficiary under one of its certifi- ; cates), and the association attempts to affect the rights of the member by the assertion of a by-law binding on him, and, to prove the by-law, offers what purports to be the minutes of its legislative body, and offers the president of the association to prove the authenticity of the minutes, and it appears that the material and controlling thing on the minutes, so far as the rights of the particular member are concerned, is found in an interlineation which does not appear in the handwriting of the secretary and which the president, as a witness, says he can not explain, the court properly rejects the record from evidence, especially where the president, as a witness, admits a belief that the interlineation was inserted into the minutes after the death of the member.</p> <p>9. “The production of the paper by the opposite party (if he claims any benefit under it) dispenses 'with the necessity of proof, and the notice to produce dispenses with proof as against the party giving the notice.” However, production under notice does not affect the right of the party against whom the paper is offered to object to its introduction in evidence on account of irrelevancy, or because of its secondary nature.</p>

<p>1. Where a statutory claim is filed to property levied' on under an execution issued upon the foreclosure of a chattel mortgage, and it appears that the defendant in the mortgage fi. fa. was in possession of the property at the date of the levy, and it nowise appears that the claimant has any right or title to the property, it is error for the court, on motion of the claimant, to dismiss the levy on the ground that the description of the property as contained in the mortgage is not sufficiently definite or specific.</p> <p>2. “In providing that a mortgage shall specify the property on which it is to take effect, the law does not require such a description as will serve to identify the property without the aid of parol evidence.”</p> <p>3. The words of description in a mortgage may be sufficient to create a lien on the property, and yet insufficient of themselves to impart notice (through the recording of the mortgage) of the lien which they create.</p> <p>4. In determining what property the words of a mortgage are used to describe, the.maxim “Falsa demonstratio non noeet” may be applied; and incorrect words of description may be disregarded, provided that the description remaining after disregarding the false terms is sufficient.</p>

<p>Accusation of sale of liquor; from city court of Macon — Judge Hodges. August 1, 1910.</p>

<p>Accusation of obstructing legal process; from city court of Valdosta — Judge Crawford. March 7, 1910.</p>

<p>Action for damages; from city court of Floyd county — Judge Hamilton. March 24, 1910.</p>

<p>1. The owner of land, in parting with its possession to another person, may make such conditions and reservations in the contract as he chooses and as the parties may agree upon. He may make a contract in the nature of a bond for title, wherein it is stipulated that if the would-be vendee does not pay one or more of the purchase-money notes at maturity, this shall result in a rescission of the contract and the establishment of the relationship of landlord and tenant; and it is further permissible for the parties to agree that in the event of such rescission ■ of the contract because of failure of the executory vendee to comply with the terms of purchase, the rescission shall be retroactive to the extent that the relationship of landlord and tenant shall be considered as having existed through the year in which the default occurred. De Vaughn v. HoioeU, 82 Ga. 344 (9 S. E. 173, 14 Am. St. R. 162).</p> <p>2. Rescission involves the duty of restitution. Hence, where a landowner, in making an executory sale of land, reserves the right to rescind the sale and to cause the relationship of landlord and tenant to arise between him and the person admitted into possession under the contract, he must first account to the vendee for the amount of any payments made on the purchase price and for the value of such improvements as the vendee has put upon the land (Blitch v. Edwards, 96 Ga. 606, 24 S. E. 147) ; but, this being done, he may force the rescission and cause the relationship of landlord and tenant to arise, according to the terms and in the manner and plan stipulated for in the contract; and if one of the terms of the contract between the parties is that upon a rescission the tenancy shall be retroactive, the law will enforce such a provision and give the landlord a special lien upon the crop raised upon the land during that year.</p> <p>3. The vendor and the vendee in an executory sale can not, by a new and distinct contract of rescission, convert their relationship into that of • landlord and tenant, so as to affect the intervening rights of third persons. But where, in the contract as originally made, the rescission is provided for, and it takes place in accordance with the original agreement, third persons can not complain that the effect of the rescission is to impair or diminish special rights which they would have had if the parties had carried out the contract as originally intended, instead of rescinding it, unless the rescinding person has done something which would make it unconscionable for him to exercise the right as against the particular third person whose rights are likely to be affected. In this case the complaining third person voluntarily became the creditor of the conditional vendee after he had full notice of the exact nature of the rights which the landowner had reserved in parting with the possession of his land; indeed', this third person himself had participated in forming the contract between the parties, and is in no position to complain because the landowner, in his capacity as landlord', by virtue of the rescission which ensued, is enforcing a landlord’s special lien against the crops raised on his lands.</p>

<p>Action on policy; from city court of Savannah — Judge Davis Freeman. May 2, 1910.</p>

<p>Action for damages; from city court of La Grange — Judge Harwell. April 28, 1910.</p>

<p>1. Wlien it is questionable whether words alleged to be slanderous impute a crime, or whether the facts and circumstances attending the utterance of the words render the communication a matter of privilege, the question should be submitted to the j.ury.</p> <p>2. The office of an innuendo is merely to explain the ambiguity, where the precise meaning of terms employed in an alleged slanderous statement may require elucidation. The true scope and meaning of the statement can not be enlarged or restricted by innuendo.</p> <p>S. The statement that one is “short” in his accounts does not necessarily impute to him the crime of larceny after trust, where, according to the true meaning of the statement and the language accompanying it, the offense would not be complete unless there had been a refusal to pay for or deliver tlie property which it might be inferred had been appropriated. The word “shorf’does not of itself imply a crime. It is a term of common nse in the stock and produce markets. To say that one is “short,” in the vernacular of the exchanges, implies only that one has less of a commodity than may be necessary to meet demands and obligations. It does not imply that the commodity can not or will not be supplied upon demand.</p> <p>4. Statements in response to inquiries as to 'another person, when the inquirer is one naturally interested in his welfare, are privileged. They are statements made in the performance of a private moral duty, within the purview of the Civil Code (1910), § 4436, par. 2. Likewise, statements not influenced by malice, but made in good faith, to effect the collection of an indebtedness justly due, are privileged, under the Civil Code (1910), § 4436, par. 3.</p> <p>5. Under the circumstances stated in the petition, a demand and refusal to pay for or deliver goods intrusted to the plaintiff would have been necessary, to constitute the offense of larceny after trust; and nothing was said by the defendant from which it could fairly be implied that there had been a criminal conversion of the property, or a refusal, upon demand, to account for its proceeds. The alleged slanderous statement was cautionary, rather than incriminatory.</p> <p>6. In order for one to impute a crime to another, in such a sense as that the imputation is actionable as slander, it is not necessary that the descriptive averments or essential ingredients by which the nature of the crime is defined should be stated with that distinctness requisite in an indictment. .But, on the other hand, it is not enough that the party to whom the remark is addressed may unwarrantably reach the conclusion, from the language used, that a crime is being imputed to the person to whom the speaker refers. For a defamatory oral utterance to be slanderous as imputing a crime, the statement must not only be such as may convey to the auditor the impression that the crime in question is being charged, but it must be couched in such language as might reasonably be expected to convey that meaning to any one who happened to hear the utterance.</p> <p>7. Even if the communications in this case alleged to be slanderous were not privileged, they did not necessarily impute a crime, no special damage was alleged, and the court did not err in sustaining the general demurrers and dismissing the petitions.</p>

Action for damages; from city court of Columbus — H. C. Mc-Cutchen, judge pro hac vice. February 24, 1910. The action was for homicide caused by contact with an electric wire. It was dismissed on general demurrer.

<p>Action for damages; from city court of Dublin — Judge E. W. Jordan presiding. February 14, 1910.'</p>

Action for libel; from city court of Brunswick — Judge Kiauss, May 10, 1910. The first publication complained of was a newspaper article charging the plaintiff, a policeman of the city of Brunswick, with having shot and killed a child’s pet dog in the street while the child was begging him not to kill it and was trying to catch the dog and carry it hack into the yard from which it had just escaped.

<p>Action for damages; from city court of Atlanta — Judge Reid. April 23,1910.</p>

<p>Action for damages; from cit}’ coiirt of Atlanta — Judge Eeid. June 11, 1910. i</p>

<p>1. Where one elects to stand upon a contract made by an agent in his behalf, he must be held to have adopted the contract as made, and not to claim the benefit of a contract which should have been made if the agent had not exceeded his authority or violated instructions and limitations. And this is true although the opposite party to the contract had knowledge of the limitations upon the authority of the agent; for, unless the principal adopts the contract as made, there would'be no contract. The fact that an agent, with the knowledge of the opposite party to a proposed contract, exceeds his authority, will- avoid the contract attempted to be made, and render the attempt to contract abortive; but it will not result in creating on behalf of the principal a different contract from that proposed by the agent.</p> <p>2. (a) There is a wide difference between the effect of the verification of statements contained in assignments of error which are determinable by examination of the record and the verification of statements relating to incidents of the trial extraneous from the record'. As' to the former, the record will control in cases of doubt; while every statement of fact as to any matter relating to incidents of the trial dehors the record will depend for its verification upon the approval of the trial judge.</p> <p>(6) The trial judge having in his charge to the jury inaccurately stated the contentions of the plaintiff, and having erroneously assumed that the important fact at issue in the case on trial had been admitted by the plaintiff (when it appears from the grounds of the motion for new trial, approved' by him as true, that such admission was not made), a new trial must be granted, although the former trial was otherwise free from error.</p>

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

<p>1. In writings relating to the sale of properly in process of growth or manufacture, to be delivered at a future date, the word “sell” will be construed as meaning “offers to sell,” or “agrees to sell,” and a writing in this form of contract which states that the one party sells to the other such a commodity for future delivery will be construed as an option or as an offer, unless it affirmatively appears that it has been accepted. As to personal property, the acceptance may be shown by proof that the person to whom the offer is made has paid a portion of the purchase price.</p> <p>2. Where a contract is subject to two constructions, one of which would make it lawful and the other unlawful, the court will, on demurrer, and until the circumstances under which the contract was made appear in proof, give the contract that construction which would make it lawful. Parol evidence is competent to show that a written contract apparently relating to an actual sale of cotton was in fact entered into merely for the purpose of allowing the parties to deal in cotton futures.</p>

<p>1. The first grant of a new trial upon certiorari will not be disturbed, unless the judgment under review by the certiorari was absolutely demanded.</p> <p>2. Though “notice to the agent of any matter connected with his agency is notice to the principal” (Civil Code (1910), § 3599), yet whether the agent of'the insurance company in the present ease was in collusion with the assured in an attempt to defraud the company appears to have been issuable, and the judge did not err, on certiorari, in remanding the case for submission of "this issue to a jury.</p>

Complaint; from city court of Macon — Judge Hodges. April 23, 1910. B. T. Adams & Co. brought suit upon an account against G. C. Skipper. In the itemized statement of account attached to the petition the defendant was charged with three notes and with certain cash advanced, and was credited with certain cash payments, with the result that there appeared to be an unpaid balance due the plaintiffs of $116.19.

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

<p>Indictment for prescribing cocaine unlawfully; from Chatham superior court — Judge Charlton. May 30, 1910.</p> <p>The indictment charged E. M. Pinckney “with the offense of a misdemeanor; for that the said E. M. Pinckney, in the County of Chatham and State of Georgia aforesaid, on the 31st day of August, in the year of our Lord 1909, with force and arms, being then and there a practitioner of medicine, did unlawfully prescribe cocaine for the use of an habitual user of the same, to wit, Carrie Henderson, said cocaine not having been prescribed in good faith by a lawfully authorized practitioner of medicine, to wit, said defendant, for the use of an habitual user of narcotic drugs who was then and there under the professional care of said defendant, a lawfully authorized practitioner of medicine, and was not a substance that said defendant deemed necessary for the treatment of said Carrie Henderson, said prescription having been furnished for the purpose of evading the provisions of a certain act’of the General Assembly of Georgia, approved August 22d, 1907, and entitled ‘An Act to provide against the evils resulting from the traffic in certain narcotic drugs, and to regulate the sale thereof;’ contrary to the laws of the said State,” etc.</p> <p>The demurrer was on the following grounds: (1) The facts charged do not constitute any crime against the laws of Georgia; (2) the acts charged are not sufficient to charge the defendant with a violation of any penal law of said State; (3) the act of the General Assembly on which the 'indictment is founded is unconstitutional, because the act contains more than one subject-matter, and matter different from that expressed in the title; (4) the said act is unconstitutional in that it attempts to enact class legislation.</p>

<p>Accusation of manufacturing liquor; from Dade superior court— Judge Fite. June 7,1910.</p>

<p>Under the provisions of section 1010 of the Penal Code of 180o, a defendant on trial for crime has the right to make snch . statement to the court and jury as he may deem proper in his own defense. For this reason, the contents of his statement are matters of absolute privilege, so far as they are in any way connected with the case or would tend in any way to defend him from the charge, including what he may say as to the prosecutor and the witnesses in the case, or as to their bias, interest, character, or conduct. This right of absolute privilege is withdrawn only when the defendant in his statement leaves the case and the parties connected therewith entirely, and indulges in matters which no reasonable man can say are in any wise pertinent to the case or to his defense.</p>

<p>1. The constitutional questions raised hy the demurrer to the indictment were’ certified to the Supreme Court and' decided against the contentions of the plaintiff in error. .</p> <p>2. The controlling issue made by the allegations of the indictment and the evidence was as to whether the accused prescribed cocaine in good faith, in the proper treatment of an habitual user of the drug, or furnished it for the purpose of evading the provisions of the act regulating the sale of narcotic drugs; and testimony that the accused made other prescriptions of a similar character, for many different persons, was admissible for the purpose of establishing the criminal intent.</p> <p>3. The force and effect which the jury may give to the statement of the accused in his defense can not be restricted by judicial construction, and it is error for the trial judge to instruct the jury that hearsay statements made by the accrued as a part of the statement in his defense have no probative value and must not be considered by the jury. In this ease, however, the error was harmless, as the statement contained nothing in the nature of hearsay that was in any respect material.</p> <p>4. No material error of law appears, and the evidence fully supports the verdict.</p>

<p>Indictment for sale of liquor; from .Dade superior court — Judge Fite. June 7, 1910.</p>

<p>1. The suit being upon an unconditional contract in writing, and no issuable defense having been filed, the verdict in favor of the plaintiff, as well as the dismissal of the certiorari, .followed as a matter of logical and legal necessity.</p> <p>2. Even if, under a mere plea of the general issue, it could be asserted' that the consideration of the promissory note had failed, the evidence was wholly insufficient to show that there had been a failure of consideration. There is nothing in the record to show that the insurance policies in question contained any stipulation avoiding them upon failure to pay notes given for the premiums, so as to bring the case’ within the rulings in Sullivan v. Connecticut Indemnity Association, 101 Ga. 809 (29 S. E. 41), and National Life Association v. Brown, 103 Ga. 382 (29 S. E. 927). In the absence of such proof, under the ruling in Arnold v. Empire Mutual Annuity Life Insurance Co., 3 Ga. App. 685 (60 S. E. 470), and citations, the non-payment of the note would not necessarily void the policy.</p>

<p>1. A receiver of a corporation, without tlie permission of the court which appointed him, can not he sued for any acts of negligence of the corporation prior to his appointment as receiver.</p> <p>2. It appearing from the petition that the tort was committed upon the plaintiff four days prior to the appointment of the receivers, and, therefore, that the receivers were not proper parties defendant, the general demurrer was properly sustained.</p>

<p>1. Where an employee sues a railroad pompany under the act of 1909 (Acts 1909, p. 160, Civil Code (1910), § 2782 et seq.), defining the liability of carriers by railroad for injuries received by employees in the service, the presumptions and methods of carrying the burden of proof are as follows:</p> <p>(а) If it does not appear that the plaintiff was himself connected with the transaction from which the injury flowed, and if it appears that he was hurt through the running of the defendant’s cars or machinery, or by the act of some fellow servant, the presumption authorized by the Civil Code (1910), § 2780, comes to his aid, and he makes a prima facie case merely by showing that lie was damaged through one of the methods specified. If the damage did not ensue from one of the causes specified in the code section just cited, the plaintiff must prove the defendant’s negligence without the aid of the presumption.</p> <p>(б) If the plaintiff himself was connected with the transaction through which bis injury ensued, he can not rely solely upon the statutory presumption to make out his case. If the transaction is not one as to which the statutory presumption applies, he must prove the negligence by some affirmative proof, but need not go further and negative his own contributory negligence.</p> <p>(c) If tile transaction in which the plaintiff was damaged was one as to which the Civil Code (1910), § 2780, applies, and the plaintiff was himself a party to the transaction, lie may make a prima facie case by proving' either of two additional tilings: (1) that lie did not bring about the injury by bis own carelessness, amounting to a failure to exercise ordinary care; or (2) that the defendant or its other servants were in fact negligent in one or more of tlie respects charged, in the petition. The defendant, taking at this stage the burden of reply, can successfully defend by disproving either of these propositions, or by proving that; notwithstanding it or its servants were guilty of negligence, the plaintiff, by the exercise of ordinary care, could have avoided the consequences.</p> <p>(d) If it appears, either by affirmative proof or by presumption, that the defendant was negligent, and it also appears that the plaintiff was somewhat at fault, but less at fault than the defendant, the plaintiff may nevertheless go to the jury, and may recover, unless it appears that his injury was brought about by his own carelessness, amounting to a failure to exercise ordinary care, or that by the exercise of ordinary care he could have avoided the consequences of' the defendant’s negligence; and in such cases the jury may diminish the damages in proportion to the amount of negligence attributable to the plaintiff.</p> <p>2. Where the petition claims damages on account of pain; mental suffering is included; and, if the evidence so authorizes, it is proper for the judge to instruct the jury upon that subject.</p> <p>3. The evidence fully authorizes the verdict. It is not excessive.</p>

<p>Indictment for burglary; from Taylor superior court — Judge Gilbert. December 9, 1910.</p>

<p>1. The principle that a verdict must be the unanimous conviction of the jurors is imbedded in the jurisprudence of this State, and this unanimity-must be the voluntary conclusion of all the jurors, uninfluenced by any suggestion or instruction from the judge that might induce one juror to surrender his individual conviction of the truth and to accept the opinion of the other jurors.</p> <p>2. For a judge in a criminal trial to ask the jurors how they stand is of doubtful propriety, and where, in response to the query, the information is given that the jurors stand “eleven to one,” to state that “usually, where the jury stands eleven to one, the one juror comes to the eleven,” is presumptively hurtful, although the judge adds to the statement that the question is one of individual conscience, as the eleven might be wrong and the one. right. Unless the verdict is demanded by the evidence, the error disclosed by the above suggestive colloquy requires the grant of a new trial.</p>

<p>Indictment for misdemeanor; from Paulding superior court— Judge Edwards. December 14, 1910.</p>

<p>Indictment for assault and battery; from Miller superior court— Judge Worrill. December 15, 1910.</p>

<p>Indictment for robbery; from Chatham superior court — Judge Charlton. January 1, 1911.</p>

<p>Indictment for altering mark of hog; from Miller superior court —Judge Worrill. January 24, 1911.</p>

Action for damages; from city court of Cartersville — Judge Foute. March 4, 1910. Mrs. Mills brought suit against the Bartow Lumber Company for the homicide of her husband, who met his death while employed as conductor on one of the defendant’s log trains. It is alleged in the petition that it was the duty of the plaintiff’s husband to bring train-loads of logs, loaded by employees of the lumber ■company, from the forest to the mill, and to unload them.

<p>Indictment for disturbing school; from Gordon superior court— Judge Fite. December 5, 1910.</p>

<p>Certiorari; from Fulton superior court — Judge Bell. October 13, 1910.</p>

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

<p>Indictment for manufacturing liquor; from Paulding superior court — Judge Edwards. December 14, 1910.</p>

<p>Accusation of cheating and swindling; from city court of Hart-well — Judge Hodges. December 3, 1910.</p>

<p>Certiorari; from Jeff Davis superior court — Judge Conyers. January 7, 1911.</p>

<p>Conviction of manslaughter; from Hart superior court — Judge Ifeadow. December 17, 1910.</p>

<p>Certiorari; from Ware superior court — Judge Parker. December 23,1910.</p>

<p>Indictment for burglary; from Whitfield superior court — Judge Fite. January 3, 1911.</p>

<p>Indictment for assault with intent to murder; from Bibb superior court — Judge Felton. December 19, 1910.</p>

<p>1. Upon the point raised that there was a failure to prove the venue, the decision in this case is controlled by the ruling in Dyer v. State, 6 Ga. App. 390 (65 S. E. 42). Irrespective of the location of the defendant's residence, where the hogs alleged to have been stolen were found-, proof that the hogs shortly prior to their transportation were on a range in Miller county was sufficient evidence, when taken in connection with the fact that the hogs were found in the possession of the defendant, to authorize the inference that the taking (if a larceny) was in Miller county.</p> <p>2. Though the evidence, authorized a charge to the jury on the law of confessions, failure to instruct them on that subject, in the absence of an appropriate written request that they be so instructed, is not cause for a new trial.</p> <p>3. While a conviction based upon an uncorroborated confession can not be sustained, the sufficiency of- the circumstances adduced for the purpose of corroboration is to be determined by the jury. A confession of hog-stealing can not be said' to be uncorroborated, where hogs proved to have been recently, missing were found in the possession of the accused, with the earmarks changed from the mark of the former owner to the mark used by the accused, and especially when the accused attempted to escape detection by statements in which he disclaimed that he himself was the owner of the hogs, and alleged that they were the property of a third person.</p>

<p>1. The courts judicially know that cotton is a farm product, and is therefore included within those “products” mentioned in the Penal Code (1910), § 553, payment for which hy means of a worthless check is punishable by law. The description of the check alleged to have been given in pay-ment for the cotton in question was sufficiently full. Por these reasons there was no error in overruling the demurrer to the indictment.</p> <p>2. The defendant having filed a plea of autrefois acquit, in which he alleged that he had1 been acquitted upon an indictment charging him with the offense of felony and 'setting out the same essential facts as those alleged in the pending indictment, and it appearing from the plea of former jeopardy, which was not traversed, that the transaction referred to in each indictment was the same, it was error to sustain a demurrer to the plea of former jeopardy, to the effect that the plea alleged a different offense from that charged in the indictment upon which the defendant was about to be arraigned, and that the matters alleged in said plea constitute no defense.</p>

<p>There was no error in overruling the motion in arrest of judgment. The defendants had been jointly indicted with several others,, whose 'eases had been disposed of either by pleas of guilty or verdict of guilty. The verdict returned found all of the defendants guilty. ' Held, that this verdict was a sufficiently definite and certain finding upon which to pronounce judgment, and the attempt to amend the verdict by the insertion of the names of the defendants, though nugatory, was immaterial.</p>

<p>1. The offense charged being bastardy, the court properly refused to allow the prosecutrix to answer a question as to whether she had testified before the justice of the peace that the child was begotten by the defendant in committing a rape upon her. If the child was begotten by the defendant, and was a bastard likely to be chargeable to the county, the circumstances under which it was begotten were immaterial. Impeachment by contradictory statements must be by previous statements as to material matters. The witness detailed the circumstances under which</p> <p>o the alleged intercourse was had, and these circumstances indicated that she did not fully consent; but whether she had denominated the offense as rape, in testifying before the justice of the peace, was of no consequence.</p> <p>2. The court correctly excluded testimony sought to be adduced to the effect that one other than the defendant had asserted that he was the father of the bastard child. This testimony was clearly hearsay.</p> <p>3. The question of the probability of the child becoming chargeable to the county is not involved in the trial of an indictment for bastardy. Two questions are involved: whether the defendant is the father of the bastard; and whether he refused to give bond in terms of the law — that is, in the manner pointed out by law — when called on to do so..</p> <p>4. The alleged newly discovered evidence, tending' to show that the defendant was not in the county of Tattnall at the time that the intercourse between himself and the mother of the bastard child was alleged to have taken place, was not sufficient to require a new trial upon the ground of newly discovered testimony. The charge in the indictment that the child was begotten on the 9th of April, 1909 (irrespective of the fact that the prosecutrix had testified that the child was begotten on the 5th), put the defendant on notice sufficient to have required him - to produce any evidence within his knowledge as to his whereabouts at any time within the probable period of gestation.</p> <p>5. The evidence authorized the verdict, and there was no error in refusing a new trial.</p>

<p>Accusation of selling liquor ■ from Douglas superior court — Judge Edwards. November 4, 1910.</p>

<p>Indictment for assault with intent to murder; from Sumter superior court — Judge Littlejohn. January 14, 1911.</p>

<p>Indictment for sale of liquor; from Whitfield superior court— Judge Fite. January 5, 1911.</p>

<p>Accusation of pointing pistol at another; from city court of. Thomasville — Judge Hammond. January 11, 1911.</p>

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

<p>Indictment for assault with intent to murder; from Terrell sm perior court — Judge Worrill. February 10, 1911.</p>

<p>Indictment for assault and battery; from Cobb superior court— Judge Morris. January 7, 1911.</p>

<p>Accusation of gaming; from city court of Polk county — Judge Irwin. February 3, 1911.</p>

<p>Accusation of sale of liquor; from city court of Polk county — ■ Judge Irwin. February 18, 1911.</p>

<p>Accusation of cheating and swindling; from city court of Ash-burn — Judge Tipton. February 4, 1911.</p>

<p>Indictment for burglary; from Campbell superior court — Judge L. S. Boan. December 8, 1910.</p>

<p>Accusation of carrying concealed weapon; from city court of Cairo — Judge Singletary. January 31, 1911.</p>

<p>Conviction of voluntary manslaughter; from Lowndes superior _ court — Judge Thomas. February 11, 1911.</p>

<p>1. In an action brought to enforce the statutory liability against the last connecting carrier of several railroads for damage to a shipment transported by them; the last company which received the goods “as in good order shall be responsible to the consignee for any damage to the shipment, open or concealed,” and the question as to the ultimate liability must be settled among the railroads themselves.</p> <p>2. Where, in an action brought to recover such damages, the plaintiff proves that the shipment was in bad order when the consignee received it from the last connecting carrier, it is to be presumed prima facie that, if the shipment had not been in good order when received by the last connecting carrier, the latter would have refused to receive it otherwise than as in bad order; and therefore, upon proof that the shipment was delivered in bad order to the consignee by the last connecting carrier, the plaintiff has established a prima facie case of liability, and easts upon the carrier the burden of showing that it did not in fact receive the shipment as in good order.</p>

<p>Appeal; from Tattnall superior court — Judge Eawlings. March 30, 1910.</p>

<p>Action for damages; from city court of Albany — Judge Crosland. June 30, 1910.</p>

<p>Appeal; from Taylor superior court — Judge Gilbert. December 10, 1910.</p>

<p>Action for damages; from city court of Hall county — Judge Looper. July 29, 1910.</p>

<p>Certiorari; from Montgomery superior court — Judge. Martin. July 22, 1910.</p>

<p>1. There was no error in overruling the special demurrer to the mortgage foreclosure.</p> <p>2. A signed statement of facts, purporting to he the statement of the signer, followed by the certificate of an officer authorized to administer oaths that it was sworn to and subscribed before him, is a lawful affidavit. It is not necessary that it should be stated in the instrument, prior to the signature of the affiant, that the declaration was made under oath, if in fact the oath was administered. Whether the oath was or was not administered • is a matter as to which the certificate of the officer is prima facie evidence, but as to which parol evidence is admissible.</p>

<p>Action for damages; from city court of Nashville — Judge Buie. September 20, 1910.</p>

<p>Levy and claim; from city court of Wrightsville — Judge Kent. October 5, 1910.</p>

<p>Action, for damages; from city court of Tliomasville — Judge Hammond. September 20, 1910.</p>

<p>Action for damages; from city court of Biebmond county — Judge W. F. Eve. October 11, 1910.</p>

<p>Action for damages — demurrer; from city court of Floyd county —Judge Nunnally. September 27, 1910.</p>

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

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

<p>Action for damages; from city court of Waycross — Judge McDonald. September 9, 1910.</p>

<p>Action for damages; from city court of Atlanta — Judge Reid. September 10, 1910.</p>

<p>Action for damages; from city court of Lumpkin — Judge Hickey. October 15, 1910.</p>

<p>There was no error in sustaining the certiorari. A suit can not be maintained against a railroad company for the negligent killing of a d'og, and there is no evidence in this ease that the killing was wanton or malicious. The decision is controlled by the rulings of the Supreme. Court in Jemison v. Southwestern Railroad, 75 Ga. 444 (58 Am. R. 476), and Strong v. Georgia Railway & Electric Co., 118 Ga. 515 (45 S. E. 366).</p>

<p>1. The defense of insanity was clearly and conclusively established from the indicia presented by the 'act itself and the evidence of the mental condition of the accused before, at, and after the commission of the alleged criminal act. There was no evidence, of any probative value to rebut the convincing- proof of mental disease in the accused and that the act was the product of the disease.</p> <p>2. The only rational inference or hypothesis presented by the evidence in ..-.this case is that the accused, at the time of the commission of the eriminal act, was suffering from some form of mental disease, and that this disease was the efficient cause of the act. The trial judge, therefore, -in addition to the charge that, if a man has reason sufficient to distinguish between right and wrong in relation to a particular act about to be committed, he is criminally responsible, should also have given the jury an instruction (requested in writing) embodying the principle of the exception to this general rule or test o'f insanity as an excuse for-acts otherwise criminal,' to wit, that a man must have intelligence and capacity enough to form the criminal intent and' purpose; and if his mental faculties are so deficient that he has no will, no conscience or controlling mental power, or if, through, the overwhelming power of mental disease, his intellectual power is for the time obliterated, and this mental disease is the efficient cause of the act, he would not be legally responsible, and the jury should find him not guilty, because of insanity.</p> <p>3. Testimony totally irrelevant or immaterial, ■ but which is calculated to arouse prejudice or passion against the accused, should not be admitted in evidence.</p>

<p>Indictment for assault with intent to murder; from Dougherty superior court — Judge Park. December 22, 1910.</p>

<p>1. Though the evidence for the State and in behalf of the defendant is apparently in irreconcilable conflict, the evidence for the State authorizing a verdict of murder, and the evidence in behalf of the defendant clearly justifying the killing, nevertheless, if the jury believed' the State’s witnesses in preference to the testimony in behalf of the defendant, they were not required to find him guilty of murder, because it is inferable from the evidence that the killing was due, not to malice, but to a sudden, violent, and irresistible impulse of passion, provoked by the assault of the deceased upon the defendant’s brother, who had just been unjustifiably shot down by the deceased in the defendant’s presence.</p> <p>2. Where the motion for new trial relies only upon the general assignments that the verdict is contrary to law and contrary to evidence, the evidence must be wholly inapplicable to the offense of which the defendant is convicted, or wholly insufficient to support the particular finding rendered, before the result can be said to be contrary to law.</p>

<p>Accusation of assault and battery; from city court of Millen— Judge Jones. February 10, 1911.</p>

<p>Indictment for larceny from bouse; from Hall superior court— Judge Jones. February 11, 1911.</p>

<p>Accusation of assault and battery; from city court of Swainsboro — Judge Daniel. February 10, 1911.</p>

<p>Accusation of cheating and swindling; from city court of Cairo— Judge Singletary. February 11, 1911.</p>

<p>Accusation of larceny from house; from city court of Nashville — Judge Buie. February 11, 1911.</p>

<p>Error from city court of Jeffersonville — Judge Shannon. February 17, 1911.</p>

<p>Indictment for assault with intent to murder; from Hall superior court — Judge Jones. March 7, 1911.</p>

<p>Indictment for assault with, intent to murder; from Greene superior court — Judge Walker. January 13, 1911.</p>

<p>Accusation of sale of liquor; from city court of Newnan — Judge Post. February 24, 1910.</p>

<p>1. The indictment described the offense in the language of the code, and with sufficient additional particularity to fully identify the transaction wherein the accused was alleged to have violated the law.</p> <p>2. An indictment for extortion is sufficient when it designates the office held by the accused, and states that, by color of his office and in his official capacity, he unlawfully took from a named person a specified sum of money, which was not due him.</p> <p>3. To constitute a levy, there must be an actual or constructive seizure of property. The property must be so far brought under the subjection of the officer that he can exercise control, and does assume to exercise dominion of it by virtue of his writ. The mere declaration by an officer of an intent to seize property does not constitute a levy. The officer must do some act for which he could be successfully prosecuted as a trespasser, if it were not for protection afforded him by the writ.</p> <p>4. The evidence authorized the conviction.</p>

<p>Certiorari; from Fulton superior court — Judge Ellis. January 38, 1911.</p>

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

<p>Indictment .for sodomy; from Chatham superior court — Judge Charlton. May 2, 1910.</p> <p>The question certified to the Supreme Court was: “Can sodomy be committed by the month, or otherwise than per anum?” Counsel for the plaintiff in error requested that the decision in Herring v. State, 119 Ga. 709 (46 S. E. 876), as to this question, be reviewed and overruled.</p>

<p>Action for damages; from city court of Atlanta — Judge Reid. June 24, 1910.</p>

<p>1. One of the different , remedies which accrue to a party to an indivisible contract when the other party wholly refuses to perform is the right to sue on a quantum meruit for his services, or for such money as he has expended, if he himself has done anything under the contract, or has paid out money in the execution of its terms.</p> <p>2. Where the value of property, or of a paper evidencing the legal title to property, is involved, the amount which the property or instrument in question has been treated by the parties, in their transactions in relation thereto, as being worth is of such evidentiary value as to authorize the jury to infer that it represents the true market value, especially in the absence of evidence to the contrary.</p> <p>3. The contention that the court did not treat the plaintiff in error fairly in the presentation of the issues to the jury is not well taken, as appears from an inspection of the charge as a whole.</p> <p>4. “An objection that a document offered in evidence was not admissible, because the execution of, the same was not proved as required by law, being overruled, tlie presumption is that the execution was duly proved, unless the contrary affirmatively appears, either by an authentic statement that there was no evidence of execution, or by setting out such evidence on that subject as was adduced to the presiding judge. Mere preliminary evidence upon such a question is not for insertion in the brief of the evidence requisite to support a motion for a new trial. Consequently its absence from the brief does not warrant the conclusion that the overruled objection should have been sustained.”</p>

Action on contract; from city court of Atlanta — Judge Calhoun. June 21, 1910.

<p>Action, for damages; from city court of Americus — Judge Crisp. June 16, 1910.</p>

<p>Complaint; from city court of Baxley — A. V. Sellers, judge pro hac vice. July 4, 1910.</p>

<p>Action on contract; from city court of Sparta — Judge Moore. July 22, 1910.</p>

<p>Complaint; from city court of Greenville — Judge Bevill. July 16, 1910.</p>

<p>Affidavit of illegality; from Hall superior court — Judge Kimsey. July 15, 1910.</p>

<p>The owner of an automobile usually is not liable for injuries inflicted by one who at the time is driving it without his consent and contrary to his directions, even thoug-li the person driving it is his employee and has authority to use it at times for certain purposes.</p>

<p>1. “Extrinsic evidence is always admissible to show that the object or consideration of an agreement is in fact illegal.”</p> <p>2. Parol evidence is admissible to show that a written contract, which on its face and by its terms purports to rejate to a lawful transaction, was in fact entered into as a wagering contract, and that the lawful form was adopted as a guise to evade the law.</p>

<p>Complaint; from city court of Savannah — Judge Davis Freeman. August 4, 1910.</p> <p>This is a suit on promissory notes, to recover the principal, interest, and stipulated attorney’s fees. The petition contains three counts. The first count alleges, in substance, that on August 6, 1909, the defendant, Jones, made and delivered to the Citizens & Southern Bank eleven notes for $200 each, due, respectively, from seven to seventeen months after date, and one note for $100, due eighteen months after date; that all of these notes were indorsed and transferred by the bank to the plaintiffs for value, without notice of any defect; that the notes due seven, eight and nine months after date were transferred to them after maturity, and the others before maturity; that the maker had defaulted in the payment of the notes due seven, eight, nine, and ten months after date, and they were still unpaid; that to secure the payment of these notes to the bank, and the payment of other notes made directly to the plaintiffs by the defendant, he made a mortgage (a copy of which was set out, and which was referred to solely for the purpose of showing the maturity of the notes sued on, and was not sued on as a mortgage), in which he convenanted that, if default should be made in the payment of anjr one or all of said notes when due, it should be lawful for the parties of the second part (the plaintiffs) to declare the whole remaining indebtedness to be due and payable at once; that on June 9, 1910, the plaintiffs personally served the defendant with notice, in the terms of the mortgage, declaring all of the said notes due because of default in the payment of-the past-due notes, and stating their intention to bring suit thereon to the July term, 1910, of the city court of Savannah. The second count alleged that the defendant was indebted to the plaintiffs in the sum of $550 principal, besides interest and attorney’s fees, on eleven notes for $50 each, payable to the plaintiffs, dated August 6, 1909, and due, respectively, from seven to seventeen months after date, and that the defendant had defaulted in the payment of the notes due from March 6 to June 6, 1910. These allegations were followed by allegations similar to those set out in the first count, as to the mortgage, etc. The third count was based on a separate transaction, being for $100 principal and for interest and attorney’s fees, on a note; and there was a prayer for the enforcement of the lien given to secure the payment of the note.</p> <p>The defendant demurred to the first count of the petition, contending that the relation between the plaintiffs and himself was that of principal and surety, and that, upon payment of the notes by the sureties, the notes were discharged, and the action- should have been in assumpsit, and not on the notes; and that if the sureties did not pay the notes, but had merely had them transferred, there was no right of action in them, and their suit was premature. The demurrer was overruled, and this is assigned as error.</p> <p>The answer admitted the execution of the notes and the mortgage, the default in payment of the past-due notes, and service of notice in regard to attorney’s fees, but denied indebtedness for the principal sums, as well as for attorney’s fees. It stated that-for want of sufficient information the defendant neither admitted nor denied the transfer of the notes as alleged, or the declaration of the maturity of the remaining notes on account of the default. The answer further alleged that the defendant borrowed from the Citizens & Southern Bank the sum of $3,500, payable in monthly instalments of $200, for which he gave his notes, and that the plaintiffs became sureties on the notes and not indorsers; that he gave also his notes for the aggregate sum of $900, payable monthly to the order of the plaintiffs, and executed a mortgage to indemnify them against loss by reason of their suretyship, and that he paid all the notes, both those to the bank and those to the plaintiffs, up to and including February 6, 1910; that on February 18, 1910, the plaintiffs, without just cause or reason, and before any legal default had been made or the liability of the sureties fixed and determined, attempted to foreclose the indemnity mortgage, and that, if he had made default in payment of any of the notes, it was caused without fault on his part, and without his consent, but was due to the illegal and wrongful attempt to foreclose this mortgage, whereby the sheriff of Chatham county had taken charge of his business and caused his default in performing his contract. The answer alleges that the only notes past due are “for March, April, May, and June, aggregating $800,” that the rest of the notes have not matured, and that the plaintiffs are sureties on the notes, and can not charge the defendant for moneys that they have not been called upon to pay, and for which their liability in law has not become fixed 'and determined by jtfdgment or otherwise. It is further alleged by the defendant that the contract and notes sued on and set out in the first and second counts of the petition are tainted with usury; that he has paid $300 in excess of the legal rate of interest on these notes for the amount of money loaned him by the bank up to February 6, 1910; that the $550 sued for in the second count is for money promised and contracted to be paid, for the use of money in excess of legal interest, and is usurious; that, as the sums of money sued for in the first and second counts are not due, the plaintiffs are not entitled to attorney’s fees, and that the $100 sued for in the third count is infected with usury.</p> <p>The answer was demurred to both generally and specially. The court sustained the demurrer to the answer as to the first and second counts of the petition, and overruled it as to the third count; and thereupon the defendant amended, by setting up the transactions, more in detail, bnt in substance repeating the answer as originally filed. On demurrer, both general and special, the amended answer1 was stricken; and this is.assigned as error. A second amendment to the answer set up that the notes transferred to the plaintiffs before maturity were not due, and that the plaintiffs as sureties, being subrogated to the rights of the creditor, the Citizens & Southern Bank, which was without power or authority to demand payment of the same before maturity, they could not declare the same due and demand payment thereon before maturity; that the relation between the plaintiffs and the defendant being that of principal and surety, and the sum sued for not yet due, said sum could not now be demanded by either the creditor or the surety, as the transfer of the notes was without the consent of the defendant, and the sureties could not recover thereon before legally called on to pay the same; that, even if the transfer of the notes was valid, the ¡Dlaintiffs were 'under no legal obligation to make payment until after maturity of the notes, and therefore could not recover on any of the notes not matured. This second amendment was demurred to generally, and also on the ground that the mortgage covenanted that the plaintiffs had a right to declare all the notes due in ease of default as to any one of them, and that the facts presented by the answer contained an attack on the title of the plaintiffs, which was not necessary to let in the defense claimed. The amendment was stricken, and this is assigned as error.</p> <p>The plaintiffs, by amendment, struck the third' count of their petition. Exception is taken to the allowance of the amendment. The pleadings are voluminous, but it is not necessary to set them forth more in detail; the foregoing statement being sufficient to present the substantial questions raised, and counsel for the plaintiff in error, in their argument and brief, not insisting before this court on any questions raised by the pleadings except those which involve the substantial merits of the case.</p> <p>On the trial the plaintiffs submitted the following evidence: The notes sued on in the first and second counts, all the notes made to the Citizens & Southern Bank and indorsed by it, the mortgage executed by the defendant to the plaintiffs to secure against loss on their indorsement; the notice given by the plaintiffs to the defendant, declaring default as to all the notes on failure to pay those due, stating their intention to bring the suit and claim attorney’s fees. The defendant moved for a nonsuit, on the ground that the notes and the mortgage sued on showed the plaintiffs to be sureties, and that they were suing for debts not matured, and that the suit was on notes, and not for money paid. The court overruled the motion, and the defendant excepted to this ruling. The defendant offered no evidence. The court directed a verdict for the full amount of the suit, and the defendant excepted.</p>

<p>August Certiorari; from Hall superior court — Judge Kimsey. 31, 1910.</p>

<p>Action for damages; from city court of Savannah — Judge Davis Freeman. August 5, 1910.</p>

<p>Complaint; from city court of Franklin — Judge Loftin. August 13, 1910.</p>

Complaint for damages; from city court of Macon — Judge Hodges. September 10, 1910. The case came to this court on exceptions of Parrott, receiver of the Macon & Birmingham Bailway Company, to the overruling of his demurrer and motion to dismiss the plaintiffs’ petition. Mun-son, his successor as receiver, was afterwards made plaintiff in error.

<p>Action for damages; from city court of Cordele — Judge Strozier. September 12, 1910.</p>

<p>Complaint; from city court of Bainbridge — Judge Cranford presiding. September IS, 1910.</p>

<p>Trover ; from city court of Valdosta — Judge Cranford. August 9, 1910.</p>

Action on contract; from city court of Dublin — Judge Hawkins. September 17, 1910. Bashinski Brothers sued Lake for damages for the alleged breach of the following contract: '“Georgia, Laurens County.

<p>Complaint; from city court of Nashville — Judge Buie. August 20, 1910.</p>

<p>The allegations of the petition show a cause of action, and the demurrer was properly overruled.</p>

<p>Motion for new trial; from city court of Nashville — Judge Buie. September 5, 1910.</p>

<p>Certiorari; from Tattnall superior court — Judge Rawlings. October 6, 1910.</p>

<p>Complaint; from city court of Callioun county — Judge Calhoun. September 13, 1910.</p>

<p>Complaint; from city court of Waynesboro — Judge Davis. November 15, 1910.</p>

<p>Trover; from city court of McEae — Judge Graham. September 19, 1910.</p>

<p>Accusation of beating wife; from city court of Dublin — Judge Hawkins. November 4, 1910.</p>

<p>Certiorari; from Dade superior court — Judge Fite. September 23, 1910.</p>

<p>Certiorari; from Macon superior court — Judge Littlejohn. November 15, 1910.</p>

<p>Where an execution is levied upon property and a third person files claim thereto and executes a forthcoming bond, and on trial of the claim case the property is found subject, and thereafter the property is duly advertised for sale and is not produced, a breach of the bond ensues; and the constable to whom the fortheohiing bond has been given, suing for use of the plaintiff in execution, may recover upon the bond, notwithstanding that the property has been taken in the meantime from the possession of the claimant under the levy of a fi. fa. against a stranger to the litigation, unless it appears that the process under which,the property was seized in the second instance was superior to'the execution first levied upon the property, or that the property was in fact subject to seizure under the second execution.</p>

<p>Accusation of larceny; from city court of Dawson — Judge Edwards. December 12, 1910.</p>

<p>Action for damages; from city court of Sandersville — Judge .Hawlcins presiding. December 2, 1910.</p>

<p>Motion for new trial; from city court of Reidsville — Judge Morgan. December 30, 1910.</p>

<p>The court did not err in refusing to dismiss the petition, as amended, on general demurrer.</p>

<p>Certiorari; from Taliaferro superior court — Judge Meadow. November 24, 1910.</p>

<p>Complaint; from city court of Statesboro — Judge Brannen. December 31, 1910.</p>

<p>The legal title to a promissory note was in one person, but the equitable title was in another, who in fact physically held it. The maker of the note was aware of the relationship existing between the person to whom the note was payable on its face and the person who held it. The note called for attorney’s fees. The person who thus held it gave statutory notice in the usual form that suit would be brought on the note, and that attorney’s fees would be claimed if the debt were not paid before the return day of the court. The suit was instituted in the name of him who held the equitable title only; but, pursuant to a ruling of the court invoked by a demurrer of the defendant, the plaintiff amended the action, so that it should proceed in the name of the holder of the legal title, for the use and benefit of him (the holder of the equitable title, the real prosecutor of the action). Held, that the notice as to attorney’s fees was adequate to charge the defendant with liability therefor, notwithstanding the amendment.</p>

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

<p>The courts will not construe a contract so as to allow one of the parties to take advantage of his own wrongful breach thereof, unless it be plain and manifest that such was the intention of the parties.</p>

<p>Motion to open default; from city court of Atlanta — Judge Beid. November 19, 1910.</p>

<p>The evidence supports the verdict, and no sufficient reason appears for granting a new trial.</p>

<p>Complaint; from city court of Swainsboro — Judge Mitchell. December 10, 1910.</p>

<p>Accusation of shooting at another; from Miller superior court — Judge Worrill. January 24, 1911.</p>

<p>1. A petition which shows that the defendant swore out a criminal warrant charging the plaintiff with an offense against the laws of this State, though the offense was described only by giving one of the constituent elements by which it is commonly designated, and followed up this prosecution by going before the grand jury of the county and preferring an indictment for the same offense, in which the alleged crime was fully and distinctly set forth, and that the grand jury returned a “no bill,” and that the prosecution was malicious and without probable cause, sets forth a valid cause of action for malicious prosecution.</p> <p>2. The fact that the act creating a city court provides that all persons charged before magistrates of the county with misdemeanors shall be bound over to the city court for trial does not divest the superior court of jurisdiction in such eases, or deprive the grand jury impaneled at the superior'court of the right to investigate an indictment preferred for a misdemeanor, for which a warrant had previously been sworn out before one of the magistrates in the county.</p>

<p>Certiorari; from Whitfield superior court — Judge Fite. January 3, 1911.</p>

<p>1. While ordinarily, in habeas-eorpus cases brought to determine the custody of a child, the personal fitness of the respective contestants is a material element, still under the particular circumstances of tins case there was no error in the court’s confining the issue to the question of the child’s age.</p> <p>2. A female under the age of fourteen years can not contract matrimony; and where a child under that age has run away from her father and gone through the form of a marriage ceremony, and her father sues out habeas corpus to recover the child from the man she has attempted to marry, it is no sufficient answer on the latter’s part that the girl’s father had treated her cruelly.</p>

<p>' Indictment for using opprobrious words, etc.; from Cobb superior court — Judge Morris. January 16, 1910.</p>

<p>1. The evidence, though conflicting, authorized the verdict rendered.</p> <p>2. Tlie admissibility of dying declarations is only prima facie a question for the court. After testimony as to the statements of ¿die deceased is admitted, it is for the jury to determine whether they were in fact made by him when he was in the article of death and when conscious of his condition, so as to make them dying declarations. Even when the jury is satisfied that the statements attributed to the deceased were made by him, and that he was at that time in a dying condition and conscious of that fact, they should still be received with great care and weighed with caution.</p> <p>3. The admissibility of dying statements attributed to a deceased person is not affected by the fact that the statements may have been elicited in response to questions put to him by a bystander; nor does it matter how. or by what means the deceased becomes conscious that he is dying, provided he is really conscious of that fact and impressed with the solemnity of his situation. The circumstances under which one mortally wounded might be apprised of his dying condition, as well as the fact that he made his statements in response to questions, or under other circumstances, may affect the credibility of the alleged statements; and the jury, in the light of the facts and in the exercise of the caution required by law, would have the right to accept them as true, or to reject them as unworthy of credit, because they might he considered due to outside influence, or because made in a spirit of revenge, or because made under such circumstances that the declarant was either unable to state the facts or unwilling to do so.</p>

<p>Certiorari; from Berrien superior court— Judge Idiomas. February 14, 1911.</p>

<p>Accusation of larceny from house; from city court- of Lexington —Judge Cloud. February 2, 1910.</p> <p>Anthony Johnson was tried upon an accusation charging larceny from the house, and was convicted of simple larceny. His motion for a new trial being overruled, he excepted. Besides the general grounds, the motion for a new trial contains several special assignments of error. It is contended that the conviction of the offense of simple larceny was not authorized by the evidence; the facts showing that, if the accused was guilty of any offense, it was larceny from the house. It is further contended that the evidence failed' to show that the cottonseed, which the accused was charged with stealing, were removed from the house,- and therefore the proof does not correspond with the allegations in the accusation, and does not complete the crime as charged, or the crime of simple larceny as found by the verdict.</p> <p>The evidence for the prosecution, briefly stated, is as follows: The prosecutor testified, that the accused lived on his farm and was employed by him as a tenant; that on the day of the alleged larceny he went down to his seed-house and saw the accused therein, and there was a sack of cottonseed close by him. “I asked him who put those seed in the sack, and he said he did. I asked him what he was going to do with them, and he said he was going to feed them to his calf.” The prosecutor then took him into custody and carried him to his storehouse, where he had him repeat in the presence of the prosecutor’s brother and his clerk the same statement that the accused had made to him in reference to the cottonseed. The cottonseed-house was open, and consisted of two rooms, in one of which was a pile of cottonseed owned by the prosecutor. In the other room there were some cottonseed scattered on the floor, and these were owned by the brother of the prosecutor. The accused, with the sack, when discovered by the prosecutor, was in the room where the cottons.eed were scattered on the floor. The sack held about 2 or 2% bushels of seed, and was full, and the seed were worth about 50 cents a bushel. The prosecutor and his clerk kept the accused under arrest during the night in the storehouse. The next morning the brother of the accused came to the store, and he and the accused entered into a written agreement with the prosecutor. • The evidence does not clearly disclose the subject of this agreement; but it is reasonably inferable therefrom that the prosecutor, in consideration of not prosecuting the accused for the larceny, coerced him into making a contract to work for the prosecutor for 12 months as a laborer without wages. After the contract -was made, the accused wras released from custody, and he worked for the prosecutor for a month. The prosecutor, after he had thus secured the services of the accused as a laborer, induced the wife of the accused to assume the contract of rent which he had with her husband. The accused did not take any of the 'cottonseed out of the house, but they were left therein when he was detected and arrested by the prosecutor. The alleged larceny took place in March, and the prosecutor did not press the prosecution against the accused until the following August, after the accused had made and harvested his crop and paid the landlord his part.</p> <p>The accused introduced no evidence, but stated to the jury that he was living on the prosecutor’s place and owned a “little calf;” that he had nothing with which to feed the calf, and went up to the house where the cottonseed were stored, and gathered up some that were scattered on the floor; that he did not think the prosecutor intended to use those seed,, as in the other room there were two bales of cottonseed; that he thought that the seed left scattered on the floor were worthless and had been abandoned by the prosecutor, and for this reason he gathered them up and put them in a sack, but did not intend to steal them, and did not think he was stealing the seed, as he lived on the prosecutor’s place, and the prosecutor knew he had nothing to feed his calf on; that he thought he was raking up off the floor waste seed which the prosecutor did not intend to use; that when the prosecutor came down and saw him in the seed-house, and asked him what he was doing, he told the prosecutor, and the prosecutor said, “I have got you now; come and go with me to my store;” that the prosecutor kept him there all night, and next morning told him that, if he would make a contract to work with him for 12 months without wages, he would settle the case, otherwise he would send him to the chain-gang for two years, that the judge would not impose any fine on him, but would do whatever he (the prosecutor) said about it; that under these .circumstances he thought it was best to make the contract with the prosecutor, and did so, and began work the next day under the contract, the prosecutor having induced his' wife to assume the rent contract lie had with him; that after working with the prosecutor for one month he was informed that the prosecutor had no right to settle a case of larceny, and that he could work the year out with him for nothing and then be prosecuted, so he thought it best to quit work as a laborer, and went back and worked the land which he had rented from the prosecutor, and in the fall paid him the full rental of 1,000 pounds of lint cotton. The prosecutor made no denial of the statement, and it is substantially corroborated by the evidence.</p> <p>The trial judge sentenced the accused to work in the chain-gang on the public works of the county for six months, without any ’alternative.</p>

<p>Certiorari; from Butts superior court — Judge Daniel. February 24, 1911.</p>

<p>1, The numerous exceptions to excerpts from the charge of the court are without merit. The charge is a fair, full, clear, and correct presentation of the law applicable to the issues made by the evidence, and is not justly subject to adverse criticism.</p> <p>2. A new trial should have been granted on the ground of newly discovered testimony. The statutory requirements in support of this ground were fully complied with. The proposed evidence is not merely cumulative and impeaching in character, and is vitally material to the defense, and, if believed by the jury, would probably lead to a different result.</p>

<p>Accusation of sale of liquor; from city court of Sylvester — Judge Williamson. March 17, 1911.</p>

<p>indictment for trespass; from Douglas superior court — Judge Edwards. March 30, 1910.</p>

<p>Certiorari; from Greene superior court — Judge Walker presiding. February 27, 1911.</p>

<p>Accusation of misdemeanor; from city court of Sparta — Judge Moore. March 13, 1911.</p>

<p>1. The evidence authorized the verdict.</p> <p>2. Where the fact of guilt depends entirely upon circumstantial evidence, it is obligatory upon the trial judge, even in the absence of a timely written request, to charge the jury upon the law as to the force and effect of circumstantial evidence in criminal cases.</p>

<p>Indictment for horse stealing; from Greene superior court— Judge Walker presiding. March 14,1911.</p>

<p>Where character is put in issue, the direct examination must relate to general reputation, good or bad, as the case may be; but on cross-examination particular transactions, or statements of single individuals, may be brought into the inquiry, in testing the extent and foundation of the witness’s knowledge and the correctness of his testimony on direct examination.</p>

<p>Indictment for assault with intent to rape; from Chatham superior court — Judge Charlton. March 21, 1910.</p>

<p>Accusation of sale of liquor; from city court of Swainsboro— Judge Daniel. February 20, 1911:</p>

<p>Indictment for misdemeanor; from Bartow superior court— Judge Fite. March 27, 1911.</p>

<p>Accusation of selling mortgaged property; from city court of Jefferson — Judge Stark. January 6, 1911.</p>

<p>Certiorari; from Putnam superior court — Judge J. B. Park. March 23, 1910.</p>

<p>Certiorari; from Jeff Davis superior court — Judge Conyers. March 29, 1910.</p>

<p>1. A public telephone company is a public-service corporation. It is under the duty of using ordinary care and diligence to afford the usual means of intercommunication to its subscribers, and to this end is under the duty of using ordinary care and diligence to keep its instrumentalities in working order; and the operators at the exchanges must use a like degree of care in answering calls and affording the necessary connection of subscribers’ lines. A breach of this duty is a tort, and may give a cause of action. ®nly reasonable diligence is required; and in determining whether this degree of diligence has been exercised, the nature of the service,- the delicacy of the instruments, and all other similar matters should be taken into consideration.</p> <p>2. An action to recover damages on account of a negligent homicide under the Civil Code (1910), § 4424, is not an action seeking to recover for mental pain and suffering within the purview of the decisions holding that no recovery can be had in cases based on simple negligence, where no damage other than mental pain and suffering is shown.</p> <p>3. In an action against a telephone company, wherein the petition asserted that the plaintiff’s wife was threatened with an acute bodily disorder; that he arranged with a physician, ready, willing, and able to come at once to her relief upon notification by telephone, if certain dangerous symptoms appeared; that the symptoms appeared, and he endeavored to communicate with the physician by telephone, but, through negligence of the agents of the telephone company, was unable thus to summon the physician, and was unable to get in communication with him for several hours; that in the meantime the threatened disorder came upon his wife, and, before the physician could reach her after he received the belated summons, proved fatal, through her bleeding to death; that the disorder was one which was readily relievable by appliances which were in the hands of the physician, and, if the physician had received the call promptly, he could have prevented the disorder from coming on, or, if it had come on, could, by means of the appliances at hand, have prevented any serious results; and that the sole cause of his W'ife’s death was the fact that she bled to death through inability to get the necessary medical or surgical attention, the court erred in dismissing the petition on the grounds that it did not appear that the death of the wife was a legal and natural result of the defendant’s negligence, and that damages for the homicide were too remote and speculative in their nature te be legally attributable to the wrong charged.</p> <p>4. In an action by a husband for damages on account of the negligent homicide of his wife, the measure of damages is prescribed by the code as being the “full value of the life of the deceased,” and no additional damages are recoverable for mental anguish occasioned by the bereavement.</p>

<p>Complaint; from city court of Yaldosta — Judge Cranford. November 25, 1.910.</p>

<p>Action for damages; from city court of Elberton — Judge Tutt. June 30, 1910.</p>

<p>Certiorari; from Borsytb superior court — Judge Morris. August 30, 1910.</p>

<p>Error from city court of Savannah — Judge Freeman. September 9,1910.</p>

<p>Complaint; from city court of Lumpkin — Judge Hickey. September 26, 1910.</p>

<p>Complaint; from city court of Fitzgerald — Judge Wall. September 22, 1910.</p>

<p>Appeal; Floyd superior court — Judge Maddox. October 28, 1910.</p>

<p>A husband is not liable criminally for his wife’s offenses, unless he aids, procures, or acquiesces in their commission. In order to show that the sale of a liquid denominated as beer is unlawful, and consequently that the keeping of the liquid for sale is likewise unlawful, it must be shown that the beer in question comes within one of those classes whose sale is regulated by law.</p>

<p>1. A mortgage lien given to a merchant for supplies, fertilizer, etc., to enable the mortgagor to make a crop, is not superior to the statutory exemption allowed under the Civil Code (1910), § 3416, and the personal property so set apart as exempt is not subject to be seized and sold under an execution issued on a foreclosure of the mortgage.</p> <p>2. Where a fi. fa., issued on a mortgage given for supplies furnished to the mortgagor, was levied on personal property, and subsequently the property was replevied and a forthcoming bond given, but before the sale day the property was set apart as a statutory exemption under the Civil Code (1910), § 3416, the levying officer could not make a sale of the property, and there was no breach of the forthcoming bond by reason of a failure to produce the property on the day of sale.</p>

<p>1. The failure to serve counsel of the opposite party with the brief of counsel for the plaintiff in error, as required by rule 15, may subject counsel to a penalty for contempt of court, but is not ground for dismissing the writ of error.</p> <p>2. There was no error in overruling the demurrer, which complained that plaintiff’s petition did not point out the particular train or trains by which the plaintiff’s cattle were killed, nor the hour, of the day when any of the cattle were killed, nor the direction in which the train was going.</p>

<p>Complaint; from city court of Covington — Judge Whaley. November 8, 1910.</p>

<p>Complaint; from city court of Douglas — Judge Cranford presiding. November 3, 1910.</p> <p>The American Agricultural Chemical Company sued T. L. Graham as maker of a note payable to it, or bearer, originally for the sum of $102. There was a credit of $40 thereon, dated November 9, 1906. The defendant admitted the execution of the note and pleaded payment in full.</p> <p>The evidence in support of the plea was that of the defendant, as follows: “I am the defendant in this case, and executed this note sued upon. This note was given to Mr. Charlie Butler, who was agent for the plaintiff at the time. Mr. Butler is now dead. I have fully paid off this note. On Saturday before the 9th day of November, 1906, Mrs. R. C. Butler came to my house. She had the note and demanded payment of me for the same. I saw the note and knew she had it in her possession. On the Thursday next following, which was November 9, 1906, I paid to Mr. Samp Smith $40 on this note at Bushnell, Ga., and took his receipt for same, and Mrs. Butler later told me that, she received this money, which is the $40 credited on the note. On March 1, 1907, on the stairway of the Union Banking Company building in Douglas, Ga., I paid to Mrs. R. C. Butler on said note $40, and her son, W. M. Butler, gave me a receipt for same, signed by himself and R. C. Butler. Mrs. Butler at that time stated to me on the stairway, in the presence of her son, that she did not have the note with her, but that the same was at home in Bushnell, Ga.; and on the 25th day of March, 1907, I paid to W. M. Butler on said note, in the grocery store of W. W. Southerland, in the city of Douglas, Ga., $10, for which he gave me a receipt, signed by himself and Mrs. R. C. Butler, his mother. On the 29th day of November, 1909, I paid to Levi O’Steen, attorney for plaintiffs, $15.72. This last payment was made after the suit was filed, and, according to my contention, paid this note in full.”</p> <p>It was admitted that Mrs. R. C. Butler was the administratrix of the estate of Charlie Butler. There was no other evidence, and the plaintiff moved the court to direct a verdict in its favor, on the ground that the defendant had failed to show any valid payments on the note, binding upon the plaintiff, for the reason that he had shown no agency between Mrs. R. C. Butler and W. M. Butler and the plaintiff, and had failed to show any authority whatever in either Mrs. B. C. Butler or 'her, son, W. M. Butler, to collect the money on this note from the defendant for the plaintiff. The court overruled this motion, and the plaintiff excepted. The defendant then moved the court to direct a verdict in his behalf, which the court did, and to this direction the plaintiff excepted.</p>

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

<p>Certiorari; from Banks superior court — Judge Brand. January 6, 1911.</p>

<p>Certiorari; from Fulton superior court — Judge Ellis. January 9, 1911.</p>

<p>Trover; from city court of Jefferson — Judge Stark. January 6, 1911.</p>

<p>Certiorari; from Eloyd superior court — Judge Maddox. February 14, 1911.</p>

<p>Complaint; from city court of Washington — Judge Wynne. February 24, 1911.</p>

<p>Certiorari; from Floyd superior court — Judge Maddox. February 24, 1911.</p>

<p>Complaint; from city court of Moultrie — Judge McKenzie. February 17, 1911.</p>

<p>Complaint; from city court of Leesburg — Judge Long. February 20, 1911.</p>

<p>Complaint; from city court of Nashville — Judge Buie. February 11, 1911.</p>

<p>Where a plaintiff dismisses or discontinues his action, or suffers nonsuit, he has the privilege of recommencing the action only upon the payment of all the costs which accrued in the former suit, unless he files the pauper affidavit allowed by the Civil Code (1910), § 5626. This condition as to payment of. costs applies to all costs, whether due to officers or to the opposite party, and applies whether a formal judgment taxing the costs has ever been entered or not.</p>

<p>Levy and claim; from city court of Moultrie— Robert L. Shipp, judge pro hac vice. February 22, 1911.</p>

<p>Action for damages; from city court of Jefferson — Judge Stark. January 27,1911.</p>

<p>Action for damages; from city court of Atlanta — Judge Calhoun. March 2, 1911.</p>

<p>Certiorari; from Walker superior court — Judge Maddox. Februar3r 22, 1911.</p>

<p>Accusation of sale of liquor; from city court of Dublin — Judge Hawkins. April 18, 1911.</p>

<p>Certiorari; from Thomas superior court — Judge Thomas. April 23, 1911.</p>

<p>Indictment for burglary; from Putnam superior court — Judge J. B. Park. May 8, 1911.</p> <p>The indictment charged Em Calhoun with having broken and entered a certain storehouse and stolen a pistol from it. One of the owners testified, that he closed and locked the store at night, leaving the pistol in. it, and that on returning the next morning about six o’clock lie discovered that the store had been broken open and entered, and that the pistol was missing, and he found a small plank,, which seemed to have been used in prizing open the window, and showed it to Em Calhoun, who was there with other negroes, and in about fifteen minutes Em and the plank disappeared. This was in September. In the ensuing June he was told by Em Calhoun that Lewis Yarborough had the pistol, he asked Lewis for it, and Lewis gave it to him, saying he had found it. Lewis Yarborough testified, that in the next year after that in which, the store was broken open, be found the pistol under wheat straw in the barn of T)r. Ledbetter, bis employer, on whose premises, near the store, Em Calhoun lived and worked as a servant ; that about a month before he found it he saw Em looking for something in the straw, and that Em said he was hunting for a gun, and offered to pay him to find it; that when he (fhe witness) found the pistol it was rusty and would not work, and ho had it fixed ; that Em would not pay him for having it fixed, and told him to keep it; Em did not say where it came from. The witness further testified; '“Em told me I was so careless with it everybody would know T had it.” ’ Mary Yarborough testified, that the defendant told her it was his pistol that Lewis had, ’and that when he got his hand on it he was going to keep it. It ivas testified that on the night of the burglary, about eight or nine o’clock, the defendant was seen in bed at his house, and that about an hour later he was seen in a cane patch between his house and I)r. Ledbetter’s, two hundred or three hundred yards from the store, and that he then said that he went after some tablets for his wife’s headache. Dr. Ledbetter testified, that ho saiv the defendant and Lewis Yarborough when it looked as if they were going to fight, and he took a pistol away from Lewis, which the' defendant claimed'as his own; lie (the witness) gave it hack to Lewis, because he had taken it away from him; • it was not the pistol stolen from the store. There was evidence as to an altercation between the defendant and Lewis Yarborough on account of Yarborough’s wife. The defendant, in his statement to the jury, said that the pistol about which he spoke to Yarborough was his own, and that he had never had the pistol that he was charged with having taken. It was testified that about two or three weeks after the burglary three new gowns of outing e.loth were found in the defendant’s house; and one of the proprietors of the store hi question testified that onting cloth was kept in stock at the store, but he did not know whether any of it was taken from the store on the night of the burglary; liis pistol was the only thing he missed, lie did not think that he had sold any of the cloth to the defendant; lie had not sold any considerable quantity of such cloth to the defendant’s wife. The same kind of cloth was sold at other stores in the locality. In addition to the general grounds of the motion for a new trial, that the verdict was not supported by evidence, etc., exception was taken to the judge’s refusal to rule out the testimony as to the finding of the cloth at the defendant’s house, and to certain instructions to the jury.</p>

<p>Indictment for hog-stealing; from Decatur superior court— Judge Frank Park. May 15, 1911.</p>

<p>1. Where a policy of life insurance provides that the insured shall belong to a named division of policy-holders, and the insurance company therein promises, 'within a designated time after the death of the insured, to pay to tlie beneficiary, “out of the mortuary fund on hand in the division to which the member belongs, an amount not exceeding [a named sum], or the full amount raised by one mortuary assessment upon all members in good standing in said division at the time of the assured’s death, not m excess of said sum,” after the designated time has elapsed the beneficiary may maintain an action at law against the company upon the policy. Prima facie the beneficiary is entitled to recover the amount stipulated in the policy, hut the insurance company may show in defense that it has made an assessment on all the members in good standing in the division involved and has not raised t!ie amount stated, and thus diminish the recovery to the amount actually realized. The burden of showing how many members there are in the division, and whether the assessment regularly made would or would not have produced the amount named in the policy, is upon the insurance company.</p> <p>2 Though a policy of insurance may provide for the payment of assessments and semi-annual dues, and may stipulate that "failure to pay swni-annual dues or assessments, when due, renders this policy null and void,” still if, at a time when the policy is legally in force, the company declines a tender of the assessments or dues, on the ground that the insured is not a policy-holder, and notifies the insured and t he beneficiary that it regards the policy as no longer of force and effect, it i« not incumbent upon the insured or the beneficiary to conthiue to tender the dues or assessments. The notification in advance that the dues or assessments will not he accepted waives the tender of them.</p> <p>3. Under the act of August 17, 1906 (Acts 1906, p. 107), the application on which an insurance policy is based is not to be considered as part of tile policy or contract between the parties, unless a copy thereof is attached to or accompanies the policy. ' Statements made in the application are not to be treated as warranties or covenants, on account of the failure or falsity of which the policy may be avoided, unless a copy of the application is attached to the policy or accompanies it, though representations contained in the application, if fraudulently made, may give to the insurance company the right to avoid the policy.</p> <p>4. Although in the proof at the trial it may be shown that one of the representations made in the application upon which the policy was issued, but which did not accompany the policy, was untrue, still, if the company desired to avoid the policy on account of this misrepresentation as an act of fraud, it was incumbent upon it to plead the matter specifically, and in the absence of such a plea it can not take advantage of the particular misrepresentation.</p> <p>5. The evidence as to whether the policy was procured by fraud was conflicting, but was amply sufficient to support the verdict, and no sufficient reason appears for this court to interfere with the discretion of the trial judge in refusing to grant a new trial.</p>

<p>Action for damages; from city court of Atlanta — Judge Reid. April 4-,.1910.</p> <p>The question certified to the Supreme Court in this case ivas as follows: “Can a servant who was injured by the negligent conduct of an incompetent fellow servant, the incompetency being unknown to him, recover damages from a common master, arising from his breach of duty in knowingly employing' and retaining the incompetent servant, where the proof shows that at the time of the injury the plaintiff, the negligent and incompetent fellow servant, and the master were all three engaged together in the violation of a penal statute of this State, viz., in pursuit of their business and work of ordinary calling on the Sabbath day ? Penal Code (1910), § 422.” For the decision of the Supreme Court, see 136 Ga. 511 (71 S. E. 728).</p>

<p>Complaint; from city court of Blakely — Judge Jordan. Jnne '20, 1910.</p>

<p>Complaint; from city court of Covington — Judge Whaley. July 11, 1910.</p>

<p>The finding of the jury was authorized by the evidence, and it was not error to refuse a new trial even though the charge of the court upon one point in the case was inapplicable. It is clear that the charge of the court was not harmful to the plaintiff in error.</p>

<p>Certiorari; from Grady superior court — Judge Frank Park. September 5, 1910.</p>

<p>A party who is dissatisfied with the award in condemnation proceedings which have been instituted to assess the damages to private property taken for public use, and who desires to appeal from the decision of the assessors to the superior court, is not required to give bond for the eventual condemnation money as in case of .other appeals.</p>

<p>Action for damages; from city court of Hall county — Judge Looper. October 5, 1910.</p>

<p>Indictment for selling cocaine; from Chatham superior court— Judge Charlton. August 24, 1910.</p>

<p>1. The sums which an offended shipper may recover from a delinquent carrier under the several storage rules of the railroad commission are not penalties in the strict sense of the word, but are fixed civil punitory liabilities (in the nature of a substitute for punitive damages) which the shipper has the option of suing-for and recovering at his election, instead of pursuing his common-law remedies for redressing the same delinquency.</p> <p>2. The railroad commission is an administrative, and not a legislative, body. It has only such powers as the legislature has expressly, or by fair implication, conferred upon it.</p> <p>3. Under the constitution the General Assembly is made the legislative body of the State, and it can not delegate its powers: but it may confer upon administrative bodies the power to make regulations and to deal in a somewhat legislative way with matters which are quasi legislative, but which are predominantly administrative in their nature.</p> <p>4. The general power imposing punishment for wrongs or neglect is a legislative function, and this is true whether the punishment is to be imposed by the infliction of á criminal penalty, or of civil punitory liability. In some cases, when the determination of what would be a just and reasonable penalty depends upon a consideration of so much data or of so many details and exigencies that the legislature could not intelligently and justly fix the amount of the penalty without further inquiry and investigation than is expedient in the ordinary course of the passage of legislation, it may in general terms declare the punishableness of the thing to be penalized, and leave to an administrative body or officer the ascertainment and declaration of what the amount of the penalty should be.</p> <p>5. The question as to what amount of penalty should be assessed against a railroad company for delinquency in furnishing cars and in other respects relative to its duty of receiving, forwarding, and delivering freight promptly is a question involving inquiry into so many facts and conditions capable of accurate ascertainment only « outside of the halls of legislation'1 as to make it a matter which the legislature could delegate to the railroad commission; provided that the legislature itself in general terms performed the purely legislative act of declaring, expressly or by fair implication, that the delinquency should be punishable.</p> <p>6. As to the matters dealt with in storage rule 9 of the railroad commission, the legislature declared the general punishableness of the delinquencies there dealt with, and left to the railroad commission the working out of the details of the penalty, and therefore the civil punitory liability imposed by that rule is enforceable. Prior to the adoption of the act of 1907 (Laws 1907, p. 72),’enlarging the powers of the railroad commission, the legislature had never declared, either expressly or' by any fair implication, that the delinquencies dealt with in storage rules 1, 10, and 12 of the commission should be punishable otherwise than by the infliction of the penalty of $250 imposed by the fourth section of the act approved August 23, 1905 (Laws 1905, p. 121). Hence, so much of those rules as imposes an additional civil punitory liability is unenforceable as to matters occurring prior to the passage of the act of 1907.</p>

<p>Foreclosure of mortgage; from city court of Sparta — Judge Moore. October 22, 1911.</p>

<p>Conviction of manslaughter; from Jackson superior court— Judge Brand. September 5, 1910.</p>

<p>’ '‘Accusation of sale of liquor; from city court of Sandersville-Judge Jordan. November 18, 1911.</p>

<p>1. The statement of counsel for the accused, in the trial of a criminal case, that the accused demanded all of his legal rights, and would not waive anything, except a copy of the indictment and a list of the witnesses, was not sufficient to constitute a challenge to the array.</p> <p>2. Upon the failure of the clerk of the court to furnish counsel for the defendant with a list of the jury, it is his duty to call the attention of the court to that fact, and failure to call the attention of the court to the omission of the clerk must be construed as a waiver of the right to be supplied with a list of the jury.</p> <p>3. The evidence authorized the verdict.</p>

<p>Complaint; from city court of Macon — Judge Hodges. November 5, 1910.</p>

<p>Accusation of sale of liquor; from city court of Sandersville— Judge Jordan. November 18, 1911.</p>

<p>Accusation of buying and receiving seed cotton; from city court of Lexington — Judge Cloud. March 2, 1911.</p>

<p>Conviction of manslaughter; from Gwinnett superior court— Judge Brand. May 2, 1911.</p>

<p>Assumpsit; from city court of Forsyth — Judge Cabaniss. January 24, 1911.</p>

<p>Accusation of sale of liquor; from city court of Jefferson — Judge Stark. May 3, 1911.</p>

<p>Indictment for larceny; from Decatur superior court — Judge Frank Park. May term, 1911.</p>

<p>Proof merely that a person had “beer” in his possession for illegal sale is not sufficient to convict him of having intoxicating or malt liquor in his possession for illegal sale.</p>

<p>1. Where a motion for a new trial is made, the normal practice, requires that the brief of the evidence should be filed either simultaneously with the filing of the motion, or at least at the same term of the court. If the motion is not heard during the term, the judge may allow additional time within which the movant may file the brief of the evidence; but the movant obtains such an extension as a matter’ of judicial grace, and not as a matter of legal right, and, if the privilege of filing the brief after the expiration of the term is granted conditionally or upon a limitation, the movant must comply with the condition or limitation set in the order, else the judge may .legally refuse to approve the brief of the evidence when tendered.</p> <p>2. “When, by an order passed in .term, a motion for new trial is set to be heard on a particular day, and the same order requires the movant to present a brief of evidence to the judge for approval in vacation on another named day prior to that set for the hearing, the judge is without jurisdiction, on the day fixed for the presentation of the brief, to lawfully extend the time for such presentation.” Blackburn v. Alabama Midland Railway Co., 116 Ca. 936 (43 S. E. 366).</p> <p>3. “It was not error to dismiss a motion for a new trial, where no brief of evidence was made out and tendered for approval within the time prescribed by the order of the judge.” Dublin Hame Works v. Ross-Mehan Foundry Co., 128 Ga. 399 (57 S. E. 683).</p>

Action on contract; from city court of Nashville — Judge Buie. June term, 1910. The petition of J. G. Gaulding alleges'that, as a buyer and seller of cotton, he made a contract with Harmon C. Baker, the defendant, by which the latter contracted and sold to him 65 bales of cotton, of the average weight of 500 pounds per bale.

<p>Certiorari; from Jasper superior court — Judge J. B. Park. March 11, 1911.</p>

<p>Motion to open default; from city court of Hall county — Judge. Looper. August 18, 1911.</p>

<p>Trover; from city court of Bainbridge — Judge Harrell. July 9, 1910.</p>

<p>A postdated check, or one which bears a date subsequent to that of its actual issue, is payable on or after the day of its date, being in effect the same as if it had not been issued until that date; but in the meantime it is a negotiable instrument, and the drawer can not be charged by garnishment as debtor of the payee, unless it affirmatively appears at the time of rendering judgment against the garnishee that the check has become due, and is still the property of the payee.</p>

<p>Accusation of riot; from city court of Cairo — Judge Singletary. July 29, 1910.</p>

<p>Indictment for misdemeanor; from Terrell superior court— Judge Worrill. September 17, 1910.</p>

<p>Conviction of manslaughter; from Elbert superior court — Judge Meadow. October 1, 1910.</p>

<p>Action for damages; from city court of Eloyd county — ’W. J. Nunnally, judge pro hac vice. September 30, 1910.</p> <p>From the petition it appears, that the plaintiff went to the ticket office at the defendant’s railway station in Chattanooga, Tennessee, and, through ’a person acting for her, requested of the defendant’s ticket agent a ticket over its railway from that place to Silver Creek, Georgia; and in response to this request the agent furnished to her a ticket, for which she paid. She was unable to read and supposed that the ticket was of the kind requested. She boarded the defendant’s train, and,' after it had run several miles, the conductor of the train asked for her ticket, and she tendered this ticket and was told by him that it was a ticket of the Central of Georgia Bailway Company, and not good on the defendant’s railroad. She informed him of the facts mentioned above, and that she had no money to pay her fare. He then told her that he would have to put her off the train, and stopped the train and gruffly told her that she must get off; and, while she was endeavoring to comply with this demand, she “was harshly and insultingly told by the porter of the train that she had no sense, or would have known not to get on the .train with the ticket she had.” The conductor and the porter put her off the train at a place in the State of Tennessee, several miles from Chattanooga. She had a heavy grip and basket which she was forced to carry, and, being totally unfamiliar with the place, had to inquire as to her whereabouts, and after much difficulty reached a car line some distance from that point, and returned to Chattanooga, reaching there at a late hour in the afternoon. She was a stranger in Chattanooga and did not know her way about the city, and did not, until after dark, find a place to spend the night. The petition alleges, that the agent who furnished the ticket was grossly negligent in not furnishing a ticket over the defendant’s line as requested; also that there were other passengers in the coach from which she was ejected, and that she was greatly humiliated in their presence by being forced to leave the coach, and by having to submit to the language used to her by the porter of the train; that she was frightened by being left at a strange place when ejected, and that the ejection, together with the worry incident to finding her way back to Chattanooga and being forced to wander about the streets in search of a place to 'spend the night, caused a great shock to her nervous system. “Petitioner sues for the humiliation and worry caused by her wrongful ejection, and for the shock to her nervous system by reason of said wrongful ejection, and for punitive damages for said wrongful ejection, in the sum of one thousand dollars.”</p> <p>The defendant moved to dismiss the case “because no cause of action is set forth. (1) No actual damages of any kind and no injury to the person being alleged, and no statute of the State of Tennessee (in which the acts are alleged to have occurred) being set out, the only law applicable is the common law, and, under the common law, damages for humiliation and wounded feelings (in this case sued for as punitive damages) could not be recovered against common carriers. (2) The plaintiff, or her agent to purchase the ticket for her, had ample opportunity to have observed that the ticket was over the Central of Georgia, and not over the Southern Railway; and the fact that she could not read would not relieve her of the duty of knowing that she held the proper ticket before entering the train, unless she had informed the agent of the defendant that she could not read.” The court dismissed the action, and the defendant excepted.</p>

<p>Appeal; from Eloyd superior court — Judge Maddox. October 28, 1910.</p>

<p>No error of law is complained of, and the evidence demanded the judgment rendered.</p>

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

<p>Accusation of sale of liquor; from city court of Dublin — Jutnn Hawkins October 17, 1910.</p>

<p>Conviction of voluntary manslaughter; from Telfair superior court — Judge Martin. November 7, 1910.</p>

<p>Where a defendant in attachment has replevied the property levied upon, giving the statutory bond, and has also filed a traverse to the grounds of the attachment, and the plaintiff in attachment elects to take a general judgment, but does not dismiss the attachment, and the defendant appeals to the superior court, the surety on the-replevy bond can not be surety also on the appeal bond.</p>

<p>Appeal; from Bibb superior court — Judge Felton. September 8, 1910.</p>

<p>Certiorari; from Habersham superior _ court — Judge Kimsey. December 2, 1910.</p>

<p>Accusation of carrying concealed weapon-/from Early superior court — Judge IVorrill. December 21, 1910.</p>

<p>1. An agent can not recover from liis principal money which he has advanced for the purchase of cotton futures for the principal; hence, such a transaction can not be successfully asserted as supplying any part of the consideration of a promissory note given to secure future advances.</p> <p>2. Where a planter gives to a factor his promissory note for supplies and for money to he furnished him for the making of his crops, and the factor furnishes him some money'for that purpose, and thereafter, at the direction of the planter, pays out other sums for the purchase of cotton futures for the planter’s benefit, the promissory note will be upheld only as to the money advanced for the purpose other than the purchase of cotton futures.</p>

<p>Accusation of drunkenness at church; from city court of Franklin — Judge Loftin. February 22, 1911.</p>

<p>1. Under tlie special facts appearing in the record, especially as recited in the note of the trial judge qualifying the grounds of the motion for a new trial, the conviction will not he set aside because he informed the jury in the beginning of his charge that the defendant was indicted for killing Owen Folsom, when in fact the indictment charged the killing of J. O. Folsom.</p> <p>2. The evidence authorized the verdict rendered, and the exceptions to the charge are not well taken.</p>

<p>1. Where the result of a contract is to create' a relationship as to which the law imposes certain specific duties, a violation of one of these duties may give a cause of action in tort in favor of the party to whom the duty is owing. But ordinarily a breach of contract, as such, gives rise only to an action ex contractu. Por a railroad company, at one of its agencies, to accept money from a person under a contract to deliver to another person at another time and place a railroad ticket creates only a contractual relationship between -the person first named and the company, and a breach of the contract by a failure to furnish the ticket at the time mentioned does not give rise to an action in tort.</p> <p>2. A father in one city, being desirous that his son in another city should be furnished railroad transportation, went to the office of the railroad company in his own city and made an agreement with the agent, whereby the father deposited with the agent the usual fare, under an agreement that transportation would be furnished at once to the son in the other city through telegraphic means, and the company failed to furnish the transportation to the son. Held, that the father has a right to sue for the.breach of the contract; but that he can recover only such damages as were in contemplation of the parties when the contract was made.</p>

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

<p>Accusation of riot ; from city court of Nashville — Judge Cranford. April 28, 1911.</p>

<p>Motion for new trial;.from city court of Millen — Judge Davis. April 22, 1911.</p>

<p>Indictment for misdemeanor; from city court of Nashville— Judge Buie. December 2, 1910.</p> <p>The grounds of the motion for a new trial, in addition to the grounds that the verdict was contrary to law and to the evidence, were as follows:</p> <p>(1) Because the witness George Gray testified, on direct examination: “Q. What was his condition? A. His appearance showed that he was drunk. Q. How did he act? A. He staggered as he went along.” And on the redirect examination, over defendant’s objection, the court allowed the witness to testify: “Q. What do you say as to his being drunk or sober? A. I could not say, only from his appearance. I did not see him drink any liquor. Q. What do you say as to his appearance? A. From his appearance he was drunk.” The questions and answers were objected to before going to the jury, by defendant, as follows: The witness, was examined fully on the direct examination, and the State has no right to reexamine, the witness as if on direct examination, but only in rebuttal of the testimony brought out on cross-examination, bceanse the questions are leading. [Note by the court: This was before the witness was excused from the stand, on his original examination or redirect examination.] The court overruled defendant’s objections, and the defendant assigns the ruling as error, because the examination was prejudicial to the interest of the defendant, in that it unduly stressed the testimony of the State, and the ruling was an intimation as to the guilt of the accused. It violated the rules of evidence and the ethics of good practice, and needlessly. incumbered the record with superfluous testimony.</p> <p>(2) It was error for the court to exclude from the consideration of the jury the material testimony of Han Harrell, a witness for defendant, as follows: “Q. How old are you? A. 17 years.” The purpose of the evidence was to show that the State’s “star” witness, John Metis, had given to this minor boy whisky, and the witness was endeavoring to convict the defendant to forestall a prosecution against the -witness for the offense of furnishing liquor to a minor. •</p> <p>(3) It was error harmful to defendant for the court to charge' as follows: “This is a case of the State against John Harrell, charged with the offense of being intoxicated at a place of divine worship, or being in any manner under the influence of intoxicating liquors, at a place of divine worship while the people were assembled there for divine worship, on the date alleged in the bill of indictment, or special presentment, whatever it is.” The offense charged in the special presentment being: “John Harrell [did] be and appear at the Dan Griffin schoolhouse, in said county, a place of divine worship. He, the said John Harrell, was then and there intoxicated and in a manner under the influence of intoxicating liquors while the people were assembled for the purpose of engaging in divine worship.” The error being: (a) The charge was much broader than the special presentment, in that it instructed the jury that the defendant was charged either with being “intoxicated” or being “in any manner under the influence of intoxicating liquors.” (5) The special presentment charged one offense only, to wit: “John Harrell was then and there intoxicated, and in a manner under the influence of intoxicating liquors;” whereas the charge instructed the jury that he was charged with either one of the offenses, (e) Because a person may be under the influence of intoxicating liquor not to such extent as to be discernible, and with perfect propriety attend church or the church grounds while the congregation is assembled for divine worship and violate no criminal' statute. (d) Because no person, under the charge, could use liquor for medicinal purposes and attend church if he were “in any manner under the influence of intoxicating liquor.” (e) Because it did not state the contention cf the State correctly, hut much stronger than charged in the special presentment, and authorized the jury to" convict the defendant if the influence was “any.” (/) Because the court should have correctly stated that the defendant was being tried upon an indictment or special presentment.</p> <p>(4) It was error for the court to charge: “The particular law in this case is: If any person shall lie and appear at any church or other place of divine worship intoxicated, or in any manner under the influence of intoxicating liquors, while the people are assembled for the purpose of engaging in any religious worship, he shall be guilty of misdemeanor;” the error being: (a) The expression “such religious worship” was an opinion of the court that the “Dan Griffin schoolhouse” was per se a place of “religious worship.” (5) The charge is also open to the error assigned to the charge, in the third ground of the amended motion, from (a) to (f), inclusive, and especially where the court emphasized this paragraph in his charge by using the expression, “Now, this is the law.” (c) Because the court used the expression three times in his charge, and every time in different parts and connections of the charge, to wit, “Or in any manner under the influence of intoxicating liquors,” as charged by the court, is error. (d) Because the charge of the court is incorrect as an abstract principle of the law applicable to the case on trial. ■</p> <p>(5) It was error for the court to neglect to give in charge the principle that, in order for the defendant to be -guilty under the special presentment of the offense as therein charged, the jury must believe from the evidence, beyond a reasonable doubt, that the defendant was intoxicated and under the influence of intoxicating liquors, upon the church grounds, as alleged in the special presentment. It was- error for the court to refuse to give in charge the written request of the defendant as follows: “Gentlemen of the jury, I charge yoti that, before you can find the defendant guilty, you must find by the-evidence that the defendant was under the influence of intoxicating liquors at the time and place alleged in the special presentment, and while the congregation was assembled for the purpose of divine worship, and it is just as necessary that the State prove the allegation in the presentment that it was intoxicating liquors as it is to prove the defendant was under the influence of such liquors; and the State must prove both allegations beyond a reasonable doubt before you would be authorized to find the defendant guilty.” [Note of the judge: The request to charge was handed to me while the charge was being made, and not before the charge began, and the request, while riot given literally, was given in substance.]</p> <p>Second request: “It is alleged in the indictment that the defendant, John Harrell, was intoxicated on spirituous liquors. Now, you must find from the evidence that the defendant was drunk on intoxicating liquors, and nothing else. 'If it was beer, morphine, or other narcotics that produced the condition of defendant, then you would not be authorized to find the defendant guilty.” [Note of the judge: This request was not given, but it was not correct as a whole.] The error being: (a) The charge was so general that it allowed the jury to convict, if they believed the defendant was intoxicated on anything besides liquor. (&) Because there was no proof that he was intoxicated on liquor, and if his condition was as was contended for by the State, it could have been produced by some drug or opiate, and not by liquor, (c)' Because nowhere in the charge was the attention of the jury called to the sufficiency of the proof required to authorize the verdict of guilty. (d) Because there was no evidence on which the jury was authorized to find that the defendant was intoxicated on liquor.</p> <p>(6) It was one of the contentions of the defendant before the jury that the witness John Metts swore wilfully and knowingly falsely to material facts in the case, and that the court, having undertaken to charge the law of impeachment, failed to instruct the jury that if a witness swore wilfully and knowingly falsely, his testimony ought to be disregarded entirely, unless corroborated by circumstances or other unimpeached evidence. Movant contends that the court charged rules of impeachment not applicable to the evidence and contentions of defendant, and neglected to charge the correct and applicable rule as above stated.</p>

<p>• Attachment; from city court of Jefferson — Judge Stark. February 10, 1911.</p>

<p>1. Where one of the parties to a pending action claims that a third person is liable over to him in the event he loses in the suit, and vouches that person by notifying him of the pendency of the suit and giving him opportunity to appear therein, the judgment in that suit is conclusive on the person vouched as to the correctness of the judgment, but is not conclusive of the fact that there is such a relationship between the person- vouched and the person vouching as that a right of action over exists.</p> <p>2. A right of action over against some third person for contribution or indemnity in favor of the party cast in a prior suit may arise from relationships either contractual or non-contraetual.</p> <p>3. Generally speaking, one of two or more joint wrong-doers has no right of action over against those connected with him in the tort for either contribution or indemnity where he alone has been compelled to satisfy the damages resulting from the tort. In some cases two or more persons may be liable as joint wrong-doers, so far as concerns a person injured by a tort, and yet as among themselves the tort may not be joint; and in some cases of this kind a right of action over may exist in favor of the one who has been compelled to pay the damages, as against another who as between them was the sole author of the wrong.</p> <p>(a) Ordinarily, if one person is compelled to pay damages because of negligence imputed to him as the result of a tort committed by another, he may maintain an action over for indemnity against the person whose wrong has thus been imputed to him; but this is subject to the proviso that no personal negligence of his own has joined in causing the injury.</p> <p>4. The negligence of two persons may be truly concurrent, even as among themselves, though the negligence of the one began antecedently to the negligence of the other, and may, in a greater or less degree, have induced it; and in such cases no right of contribution or indemnity exists between the wrong-doers. Where two separate persons owe to a third person the same concurrent duty as to a particular thing, and, by reason of the negligent failure of each and both of them to perform that duty, the third person is injured, and he sues only one of those who owed him the duty (basing his fight of action solely upon the tortious state of affairs brought about by this joint’and common neglect of duty), and recovers damages, no action over arises in favor of the person thus subjected to the sole liability, against the other person who owed the same duty.</p> <p>5. Where a right of- action over against a third person is asserted by -the defendant in a prior tort action who has been compelled by the judgment thereon to pay damages, the plaintiff in the second action is estopped from showing that the causes alleged in the prior action were not the true causes of the damage. The only theory on which the second suit in such a case can proceed is that the judgment in the first case was based on a correct finding of the facts, and that that state of facts, taken in connection with the relationship of the parties to the second suit as to that state of facts, is such as to give an action over in favor of the one as against the other.</p>

<p>“Liens for taxes clue the State or any county thereof, or municipal corporation therein, shall cover the property of taxpayers liable to tax, from the time fixed by law for valuation of the same in each year until such taxes are paid.” Civil Code (1910), § 3333. It follows that the • owner of property on the day when the State authorities annually fix the time for the valuation of property f.or State and county taxes is liable for the municipal tax for that year, and is therefore the proper person against whom a tax execution should be issued.</p>

<p>Appeal; from Bichmond superior court — Judge Hammond. July 2,1910.</p>

<p>Complaint; from city court of Atlanta — Judge Calhoun. June 22, 1910.</p>

<p>Bemoval of cause to United States court; from city court of Waycross — Judge McDonald. July 2, 1910.</p>

<p>To make a municipality liable for an injury caused by a defect in a highway, the defect need not have been the sole cause of the injury; but if, besides the defect, there was another cause, not attributable to the negligence of the injured person, and which contributed directly but concurrently to causing the injury, the corporation might still be liable, provided the injury would not have been sustained but for the defect in the highway. In such case the concurrent acts of negligence of both wrong-doers, and not the separate act of either one, would constitute the proximate cause of the injury.</p>

<p>Complaint; from city court of Abbeville — Judge Nicholson. August 10, 1911.</p>

<p>Action for damages; from city court of Greenville — Judge Rev-ill. July 16, 1910.</p>

<p>Appeal; from Hart superior court — Judge Meadow. August 20, 1910.</p>

<p>Action for money had and received; from city court of Valdosta —Judge Cranford. September 8, 1910.</p>

<p>1. “The law will not construe a contract so as to give the debtor the right to destroy it by a simple refusal to comply with it, unless the terms of the contract are so clear and unambiguous as to make irresistible .the conclusion that no other result could possibly be reached.”</p> <p>2. Where a contract of employment provides that tt shall remain in force so long as is mutually satisfactory, and that the rate of wages shall be so much, but that the employee shall be entitled to so much extra compensation per month, provided he remain in the service until a set date, and not otherwise, the proper construction of the agreement is that either party may terminate the contract at will; and if the employee quits before the time set, or by his wrongful conduct makes it reasonable and just for his employer to discharge him prior to that time; he forfeits the extra compensation; but if the employer himself voluntarily and without cause sooner terminates the contract, the employee is entitled to a ratable part of the extra compensation.</p> <p>3. A contract by wbieb. an employer is to pay the employee a certain amount as wages in any event, and an additional amount in the event he remains in' the employment till the end of the contract, is not unenforceable as to the extra compensation on the ground that it is nudum pactum.</p> <p>4. Whether fighting on the show grounds by the plaintiff, who was a workingman employed by the proprietor of a circus, was (especially in the absence of all evidence as to the nature and cause of the fight) a reasonable cause for his discharge was a question for solution by the jury, and is not a matter absolutely settled, as a matter of law, by the express provisions of the contract.</p> <p>5. No error of law appears.</p>

<p>Claim — appeal; from Montgomery superior court — Judge Martin. July 23, 1910.</p>

<p>1. Upon the execution and delivery of bond for title to land, the equitable title charged with the payment of the purchase-money passes to the vendee; and the vendor holds the legal title only as security for the unpaid residue of the purchase-money.</p> <p>2. As to making the payments stipulated for in the sale of land where bond for title is given, time is usually not of the essence of the contract.</p> <p>3. If the vendee under a bond for title defaults in his payments, the vendor has the right to rescind upon giving the vendee notice that he will insist upon prompt payment and upon returning to him the amount of the purchase-money which he has paid, plus the value of any permanent improvements which he may have placed upon the land, less the damages which have been occasioned to the vendor by the vendee’s failure to perform the contract.</p> <p>4. If, without having completed the rescission by restoring the status, the vendor in the bond for title resells the property to a third person, who takes without notice'of the vendee’s equitable title, the vendee may treat the resale either as a rescission of the sale or as a breach of the bond. If he elects to treat it as a rescission, he may recover from the vendor the amount of purchase-money he has paid, and the value of the permanent improvements he has placed upon the land, less the damages which have been- occasioned by reason of his (the vendee’s) failure to perform the contract. If he treats it as a breach of the bond, the measure of damages is the value of the premises at the time of the resale, less the amount due on the unpaid purchase-money.</p> <p>5. Where a vendor in a bond for title breaches his bond by a resale of the property, the statute of limitations does not begin to run until .the time of the resale.</p>

<p>Complaint for. damages; from city court of Americas — Judge Crisp. September 19, 1910.</p>

<p>Complaint; from city court of Forsyth — Judge Clark. September 10, 1910.</p>

<p>Action for damages; from city court of Floyd county — W. J. Nunnally, judge pro hac vice. September 28, 1910.</p> <p>The exceptions were to the directing of a verdict for the defendant.</p>

<p>Action for damages; from city court of Waycross — Judge McDonald. September 30, 1910.</p>

<p>Money-rule; from city court of .Fitzgerald — Judge Wall. September 23, 1910.</p> <p>The questions in this case arise on a rule against the sheriff for the distribution of funds in his hands, realized from the' sale of property under execution. The.undisputed facts are as follows: On April 6, 1909, the sheriff sold the property in question for $1,100, in pursuance of an execution in favor of Mcllwaine, Knight & Co. against J. L. King, issued from the city court of Ashburn on January 21, 1908. On the day of the sale the Citizens Bank of Valdosta, as transferee, placed in his hands two fi. fas. against the defendant, J. L. King, one in favor of T. L. Griner, and the other in favor of the Southern Hat Company, based on judgments of the city court cff Ashburn, rendered December 16,. 1907. The transfers of these two executions to the bank were duly entered on the general execution docket on January 21, 1908. Ewell Brown intervened as transferee of a fi. fa. based upon a judgment of the city court of Ashburn, rendered on October 31, 1907, in favor of the Swift Fertilizer Works against King, for the principal sum of $354.64, interest, attorney’s fees, and costs. This execution was duly entered on the general execution docket and had on it a duly recorded transfer, dated May 5, 1909, purporting to have been made by J. H. Pate, attorney for plaintiff in fi. fa., to Ewell Brown, reciting that the transfer was for Value received. A credit of cash, $125, dated November 11, 1907, was entered on it, and there was also upon it an entry of levy on the identical property from which the fund to be distributed by the court was realized, dated November 4, 1908. J. B. Wall testified, that in the fall of 1908 he paid to the sheriff, by a draft drawn on J. L. King, the defendant, through the Lake Park Bank, the full amount due on this execution; that the execution was attached to the draft, and that he represented the defendant in making the payment; and the sheriff testified that this witness had paid him the amount due on the execution. The evidence is silent as to how the execution got into the possession of J. PI. Pate, the attorney who made the transfer to Ewell Brown, or how it got into the possession of Ewell Brown, except by the transfer as above stated. The County of Laurens intervened for the use and benefit of Mrs. M. J. Adams, transferee of a tax-execution issued by the tax-collector of Laurens county in January, 1907, against J. L. King, for State and county taxes, of the year 1906, for $208.34, besides interest, and $1.50 costs. Upon the back of this tax fi. fa. was an entry that it was transferred by C. PI. Adams, tax-collector of the said county, on October 18, 1907, to Mrs. M. J. Adams, for and in consideration of $208.34, the principal of the fi. fa. This fi. fa. was entered on the general execution docket of Laurens county on October 18, 1907. The sheriff testified, and it was not controverted, that he sold the property under the fi. fa. in favor of Mellwaine, Knight & Co. for the sum of $1,100; that before any other executions were placed in his hands claiming any part of the fund realized from the sale of this property, the plaintiff's in that execution demanded payment of their execution, and that he paid it in full and had remaining in his hands for distribution the sum of $610.86.</p> <p>It was agreed that, the judge, without the intervention of a jury, should decide the questions of law and fact, and distribute the fund remaining in the hands of the sheriff. The judge distributed the fund as follows: (1) The payment made by the sheriff of the fi. fa. in favor of Mcllwaine, Knight & Co. was approved. (2) The costs due the sheriff, the cost for the attorney who filed an answer for the sheriff to the rule, and the costs due the clerk of the city court, were ordered to be paid. It was ordered that the sum of $564.36 remaining in the hands of the sheriff be applied as follows: . (3) Upon the fi. fa. in favor of T. L. Griner, transferred to the Citizens Bank of Valdosta, $284.40; (4) upon the fi. fa. in favor of Southern Hat Company, transferred to the Citizens Bank of Valdosta, $86.83 : (5) upon the fi. fa. in favor of Swift Fertilizer Works, transferred to Ewell Brown, $194.13. The court held that the tax-execution had no lien upon the fund in the sheriff’s hands. The county of Laurens, intervenor, for the use and benefit of Mrs. M. J. Adams, transferee of the tax fi. fa., filed a motion for a new trial on the general grounds, and it excepts to the judgment overruling its motion.</p>

<p>Complaint; from city court of Sandersville — Judge Jordan. November 1, 1910.</p>

<p>Action for damages; from city court of Atlanta — Judge Calhoun. October 13, 1910.</p>

<p>Motions to dismiss.</p>

<p>Action for damages; from city court of Montieello — Judge Thurman. November 14, 1910.</p>

<p>Certiorari; from. Fulton superior court — Judge Bell. October 13, 1910.</p>

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

<p>Action for damages; from city court of Fitzgerald — Judge Wall. December 10, 1910.</p>

<p>Action for damages; from . city court of Richmond county— Judge W. F. Eve. December 3, 1910.</p> <p>The plaintiffs in error, as lessees of the Georgia Railroad, were sued for the homicide of the plaintiff’s son. The first count of the petition alleged, in brief, that the decedent, in the course of his employment as a train-hand of the defendants, went from Union Point, where he resided, to Augusta, in the afternoon, and was scheduled to go out on his regular run on a train leaving Augusta the next morning; that it was the custom of the decedent and other trainmen living at points along the line of the railroad to sleep in caboose cars in the Iíarrisonvillé yard of the defendants, near the city limits of Augusta, and this custom was well known and sanctioned by the defendants and their agents in charge of the operation of the yard; and that'a little after 12 a. m., on that morning, while he was walking across tracks in the yard, going to one of the cabooses for the purpose of sleeping there according to the custom referred to, a locomotive, moving along the track and operated by employees of the defendants, struck him and inflicted injuries from which he died; that the locomotive was proceeding at a high and negligent rate of speed, without signal or .warning of its approach, either by ringing the bell or sounding the whistle, although it was moving through crowded railroad yards where employees of the defendants, and other persons, there by consent of the defendants, were known to he moving around; that the persons operating the locomotive kept no adequate lookout, and ran over the decedent on account of their failure to keep a lookout, and through their failure to give signal or warning, and through their negligence in running at a reckless rate of speed; and that in all these matters and things the decedent was in the exercise of ordinary care and diligence.</p> <p>The second count contained the same allegations, except that, instead of alleging that the locomotive was being operated by employees of the defendants, it alleged that the locomotive was being operated by agents and servants of the Charleston & Western Carolina Bailway Company, and was there with the knowledge and consent of the defendants, it being their custom to allow locomotives of connecting carriers to enter their yards.</p> <p>The defendants demurred generally to each count of the petition.</p>

<p>Where it is made known to the court that a case has been finally settled, after argument, the court 1ms the discretion of proceeding with the decision of the points presented in the record or of dismissing the writ of error. Ordinarily the latter course will be pursued.</p>

<p>Action for damages; from city court of Atlanta — Judge Eeid. December 14, 1910.</p> <p>The plaintiff was employed as a chambermaid in the Piedmont Hotel in Atlanta. About ten o’clock on the night of September 16, 1905, she was suspected of having stolen a pnrse and a dollar bill from one of the rooms. The manager and tbe assistant manager of the hotel and a special policeman (nominally employed by the city, but in fact employed and paid by the hotel company) confronted her with the alleged theft, and the policeman, at the instruction of the other two gentlemen, arrested her. The manager consulted with the president of the hotel company, and he directed that she be “locked up.” She was carried to the police station and imprisoned there until the next afternoon at 2.30 o’clock, when she was brought before the recorder and hound over to the State court for larceny. Hp to this time no warrant had been sworn out, but, upon her being bound over to the State court, a warrant was sworn out by the special policeman and an accusation thereon was preferred against her in the city court. She was tried and acquitted. On May 27, 1909, the present suit was filed against the hotel company for damages. The petition contains three counts. The first alleges the arrest of the plaintiff without a warrant, and prays for damages, both actual and punitive, for illegal arrest. The second count takes up the transaction following her illegal arrest, alleges her incarceration in the police station without warrant or other lawful authority, and prays for damages, actual .and punitive, on account of false imprisonment. The third count sets forth the swearing out of the warrant and the prosecution in the city court, and prays for damages on account of malicious prosecution. Under the petition as drawn, the several counts were employed not for the purpose of setting forth the same cause of action with a variety of detail, as is frequently done, but for the purpose of dividing the general transaction involved in the arrest, imprisonment, and subsequent prosecution into three separate causes of action. The judge instructed the jury to render a semrate verdict on each count. They found in favor of the plaintiff $2,500 damages on the first count (for illegal arrest), and $2,500 on the second count (for false imprisonment), and found in favor of the defendant on the third count (for malicious prosecution). Further facts necessary tó an understanding of the points decided will be staged in the course of the opinion.</p>

<p>Complaint; from city court of Jefferson — Judge Stark. January 5, 1911.</p>

<p>Complaint; from city court of Miller county — Judge M. C. Edwards presiding.</p>

<p>Complaint; from city court of Baxley — Judge Sellers. February 9, 1911.</p>

<p>Complaint; from city court of Fitzgerald — Judge Wall. April 24, 1911.</p>

<p>Conviction of voluntary manslaughter; from Toombs superior court — Judge Eawlings. ■ June 15, 1910.</p>

<p>1. Where suit is brought on an account with a bill of particulars containing each item of the account, a recovery can be hart only for those items proved as alleged and set out in the bill of particulars.</p> <p>2. The fact of payment may be shown by parol evidence, although the payment may have been made by a check, which is not produced.</p> <p>3. In'a suit on a contract guaranteeing the payment of an account, the burden is on the plaintiff to prove the contract of guaranty, that the goods .were sold and delivered in accordance with and on the faith of the guaranty, and that no part of the account has been paid by the principal debtor. This is tine whether the contract of guaranty be absolute or conditional.</p>

<p>Affidavit of illegality; from Berrien superior court — Judge Merrill. August 20, 1910.</p>

<p>1. Where two persons sign a note, apparently as joint principals, and there is nothing in the note to show that one is surety for the other, the presumption of law is that both are liable as joint principals. This is not, however, a conclusive presumption, and may be rebutted by parol evidence, or by circumstances.</p> <p>2. Where one has signed a note, apparently as principal, but in reality as surety, the burden is on him to establish the fact of suretyship; and where he claims a discharge by some act increasing his risk, he must further show that the payee knew he was surety at the time of the act in question.</p> <p>3. Whether one signs a note with another as joint principal maker, or as surety merely, is a question to be deterniined by the facts, and not by the opinion that either party to the contract may entertain. Under the uneontroverted facts in the present ease, the defendant was only a surety on the note; usury was charged against the principal maker by the payee when the note was originally given; the waiver of homestead contained in the note was rendered void by the usury, and, this secret taint of usury increasing the risk of the defendant as surety, the law'1 released him from all liability thereon.</p>

<p>Accusation of misdemeanor; from Fulton superior court — Judge L. S. Koan. September. 29, 1910. .</p>

<p>Action on contract; from city court of Ashburn — Judge Tipton. October 17, 1910.</p>

<p>Complaint — appeal; from Greene superior court — Judge Lewis. December 29, 1910.</p>

<p>Ellis, Well & Ellis, for Case Threshing Machine Co.</p>

<p>1. Whenever one party to a case claims special damages against the other, he has the burden not only of showing that he has been damaged as alleged, but also of furnishing to the jury data sufficient to enable them to estimate with reasonable certainty the amount of the damages. It is not necessary, however, that the party on whom the -burden thus rests should submit, exact figures.</p> <p>2. The rule which generally requires a party suffering damage from the neglect of another to diminish the damage does not require him to adopt a course which a reasonably prudent man would not have taken under all the circumstances.</p>

<p>Action for damages; from city court of Sylvester — Judge Williamson. January 24, 1911.</p>

Action for damages; from city court of Atlanta — Judge Reid. September 17, 1911. The Sparks Milling Company brought suit against the Western Union Telegraph Company for damages growing out of the alleged negligent conduct of the defendant in the transmission and delivery of certain cablegrams. A general demurrer to the petition was sustained, and this judgment is here for review.

<p>Complaint; from city court of Dublin — Judge Hawkins. December 28, 1910.</p>

<p>Certiorari; from Fulton superior court — Judge Bell. October 11, 1910.</p> <p>The facts upon which the questions arise in this record, substantially stated, are as follows; Iilassett bought groceries from Johnson as needed, agreeing to pay for them by the week, and for some time carried out this agreement; but he fell behind in his payments and owed Johnson about $130 on a running open account for the years 1905 and 1906. Johnson split the account into two parts; including the items for 1905 in one part, and the items for 1906 in another part, and brought two suits in.a justice’s court against Klassett for the separate parts of the account. Both suits were carried to the superior court by appeal. When the suit for sixty-odd dollars, including the items for 1906, was reached for trial in the superior court, the defendant filed a plea alleging that the plaintiff had split a solid account in order to' bring it within the jurisdiction of the justice’s court, and that this was unauthorized by law. This plea seems not to have been sustained in the superior court, and a verdict was rendered for the plaintiff for the full amount of the suit. Subsequently the appeal in the other suit, involving the items for 1905, was dismissed in the superior court, and the plaintiff sued again for these items in the justice’s court, and to this suit a plea of res judicata was filed, under section 4-335 of the Civil Code (1910), setting up the judgment in the first suit in the superior court as an adjudication of the same subject-matter, and insisting that the items included in this judgment were identical with those in the suit then pending. When this case -was reached for trial in the justice’s court, the plaintiff, through his attorney, confessed judgment in open court for the defendant; and thereafter he entered an appeal from that judgment to a jury in the same court. When the appeal came on to be heard, the defendant made two motions before the magistrate: First, that the court dismiss the appeal, on the ground that it was illegal and void because the defendant had filed a plea in bar to the suit, which, if well pleaded, precluded the plaintiff from recovery for all time, and the plaintiff had made a solemn admission in judicio that this plea was well pleaded, and therefore neither an appeal nor a certiorari would lie. Second, that the magistrate direct the jury to sign up a verdict for the defendant, on the ground that the defendant had filed a plea in bar and. the plaintiff had confessed a judgment in favor of the defendant in open court, and this admission in judicio was conclusive between the parties, and, although the technical right of appeal existed, it could avail the plaintiff nothing, and the only verdict that could he lawfully rendered under the facts was a verdict sustaining the plea in bar. The court overruled both of these motions, and the case proceeded to trial before the jury.</p> <p>The plaintiff testified, in proof of his account, that in 1905 he opened up an account with the defendant, who at that time said that “he could pay by the week, and would pay by the week,” and the plaintiff sold him groceries, charging-them to his account with this understanding; and that for a while the defendant did pay by the week, but finally got behind, and that the account sued on was just, true, correct, and unpaid. The defendant introduced no evidence attacking the correctness of the account, but introduced a certified copy from the record showing the other suit for the account of 1906 and the filing of the plea in bar. The verdict was for the full amount of the suit, $67.50. The defendant sued out a writ of certiorari, which was sustained by the judge of the superior court, who thereupon entered a final judgment in favor of the defendant; and to review this judgment a writ of error was brought to this court.</p>

<p>Levy and claim; from city court of Newton- — Judge Johnson. November 28, 1910.</p>

<p>Action for damages; from city court of 'Columbus — Judge Tigner. July 16, 1910.</p>

<p>Action for damages; from city court of Americus — Judge Crisp. July 21, 1910.</p>

<p>Action for damages: from city court of “Richmond county — Judge W. E. Eve. „ September 6, 1910.</p>

<p>Action for damages; from city court of Floyd county — W. J. Nunnally, judge pro liac vice. September 13, 1910.</p>

<p>The relation of principal and agent ordinarily does not arise between employer and employee when the latter exercises an independent business, and in it is not subject to the immediate direction and control of the employer; and in such cases, where torts are committed by the employee, the employer, is not liable, under the provisions of the Civil Code (1910), §-4414. Ho exception to this rule exists where a chartered railroad company employs another person or corporation, not under its immediate direction and control, to do such work.</p>

<p>Complaint; from city court of Bainbridge — Judge Harrell. July 14, 1910.</p>

<p>Action for damages; from city court of Forsyth — Judge Clark., December 29, 1910.</p>

<p>Action on insurance policy; from city court of Ocilla — Juflg-o Oxford. December 12, 1910.</p>

<p>1. A policeman is not, by reason of his position as an employee- of a city, precluded from recovering damages from the city for’ personal injuries caused by the city’s neglect to keep a highway in proper repair.</p> <p>2. Though a policeman, employed by a city to patrol a particular beat, so materially deviales from the route ho is instructed to follow while on that beat that, if the case were one falling under the ordinary law of master and servant, he could not (on account of his violation of rules and instructions) recover from his employer, the city, for any injury received by him through his encountering latent dangers, known 'to his employer and not known to him, nevertheless, if at the time of the injury he is, in a usual and orderly way, traveling upon a public highway of the city and is hurt by a defect which the city has negligently allowed to remain in tlie highway, he is entitled to recover damages on the same terms that any other citizen would be.</p> <p>(d) Query. Do the ordinary doctrines of the law of master and servant apply as between a city and its police officers?</p>

<p>Action for damages; from city court of Savannah — Judge Davis Freeman. September 13, 1910.</p>

<p>Where a landlord furnishes to liis cropper everything to make the crop, except labor, and that is furnished by the cropper and the cropper’s family, the net amount due the cropper after full settlement with the landlord is in the nature of wages paid to day laborers, and is not subject to process of garnishment while in the hands of the landlord.</p>

<p>Action on contract; from city court of Newnan — Judge Post. July 29, 1910.</p>

<p>1. A plea filed by a corporation to a suit on a note signed in the corporate name by its treasurer, which in general terms sets up that the note was not signed by an officer authorized to execute it, but in specific detail sets up that it was executed under the direction of tae piesident of the corporation in pursuance of an agreement.which the corporation had made, sets up no valid defense and is properly stricken on demurrer.</p> <p>2. Where it is provided in a contract of employment that in addition to a stated salary the employer will give to the employee a certain percentage of the earnings of the business, the agreement, as to the giving of the percentage of the net earnings is not a voluntary agreement, but is a contractual obligation resting on a valid consideration, and is enforceable.</p>

<p>Action on insurance policy; from city court of Atlanta — Judge Reid.' October 25, 1910.</p>

<p>Certiorari; from Coffee superior court — Judge Parker. October 20, 1910.</p>

<p>Complaint; from city court of Fitzgerald — Judge Wall. October 31, 1910.</p>

<p>Money-rule; from city court of Monroe — Judge Stone. December 13, 1910.</p>

<p>1. No material error of law appears, and there is some evidence to support the verdict.</p> <p>2. The word “wilfully,” as used with relation to penal offenses, ordinarily means more than “intentionally;” it refers to an act done purposely to commit the particular wrong forbidden by the law. This is the sense in which it is used in the statute providing for the punishment of any person who shall “wilfully interrupt or disturb any public school,” etc. (Penal Code of 1910, § 424).</p>

<p>Action on insurance policy; from city court of Covington— Judge Whaley. May 5, 1911.</p> <p>The Judges of the Court of Appeals being disqualified, Judges Gilbert, of the Chattahoochee circuit, Littlejohn, of the Southwestern circuit, and Conyers, of the Brunswick circuit, were designated to preside.</p>

<p>Complaint; from city court of Tifton — Judge E. Eve. January 7, 1.911.</p>

<p>While the evidence tending to show a felonious assault as charged in the indictment was weak and unsatisfactory, this court can not say that there was no evidence from which the felonious intent may have been inferred; and, as the question of .intent is so peculiarly one for the determination of the jury, in the absence of any material error of law the verdict will not be disturbed.</p>

<p>The exceptions of law raised by the record are entirely without merit; and the verdict for the plaintiff is strongly supported by the evidence.</p>

<p>Complaint; from city court of Waynesboro — Judge Davis. January 4, 1911.</p>

<p>Complaint; from city court of Dublin — Judge Hawkins. February 13, 19-11. .</p>

<p>Accusation of carrying pistol without license; from city court of Floyd county — Judge Eeece. March 20, 1911.</p>

<p>Indictment for carrjdng pistol without license; from Houston superior court — Judge Felton. April 12, 1911.</p>

<p>Indictment for adultery and fornication; from Haralson superior .court — Judge Edwards. May 10, 1911.</p>

<p>Accusation of sale of liquor; from city court of Houston county. Judge Brunson. May 22, 1911.</p>

<p>Indictment for assault with intent to murder; from Jasper superior court — Judge Park. May 20, 1911.</p>

<p>Accusation of wife-beating; from city court of Bainbridge— Judge Harrell. June term, 1911.</p>

<p>Indictment for sale of liquor;-from Pike superior court — Judge Daniel. May 22, 1911.</p>

<p>Conviction of manslaughter; -from Fayette superior court— Judge Daniel. June 3, 1911.</p>

<p>Accusation of larceny; from city court of Bainbridge — Judge Harrell. June 2Q, 1911.</p>

<p>Accusation of adultery; from city court of Eeidsville — Judge Collins. May 29, 1911.</p>

<p>Accusation of adultery; from city court of Eeidsville — -Judge Collins. May 29, 1911.</p>

<p>Certiorari; from Haralson superior court — Judge Edwards. June 20, 1911. .</p>

<p>Certiorari; from Bibb superior court — Judge Felton. June 8, 1911.</p>

<p>1. “Neither the joinder of a witness in an indictment with the defendant, nor a plea of guilty entered by the witness, necessarily makes him an accomplice with the defendant so as to require corroboration of the witness’s testimony on the latter’s trial. It is for the jury, from a consideration of the testimony of the witness, wherein he admits his presence at the scene of the crime at the time of its commission by his codefendant, but denies any participation therein by him, and the plea of guilty entered by the witness, as well as any other relevant circumstance, to determine whether the witness was an. accomplice of the defendant on trial.”</p> <p>2. The court properly left it for the jury to decide, under the evidence, whether the codefendant testifying was an accomplice; and the verdict may be upheld on the theory that the jury found that the witness was not an accomplice.</p>

<p>Certiorari; from Bibb superior court — Judge Felton. June 8, 1911. • , '</p>

<p>Accusation of sale of liquor; from city court of Carrollton — . Judge Bell. July 11, 1911.</p>

<p>Conviction of manslaughter; from Miller superior court — Judge Morrill. June 24,' 1911.</p>

<p>The grounds of the motion for a new trial are without merit,. and the verdict is supported by the evidence.</p>

<p>Accusation of violation of prohibition law; from city court of Macon — Judge Hodges. June 24, 1911.</p>

<p>Certiorari; from Fulton superior court — Judge Pendleton. May 17, 1911.</p>

<p>The court did not err in refusing to strike the answer to the certiorari, or in overruling the certiorari.</p>

<p>1. An appeal bond may be amended by correcting a misnomer in the initials of the appellee, and by inserting the name of the nsee in the body of the bond after the name of the formal party to the case.</p> <p>2. Where an appeal from a justice’s court shows that a judgment has been rendered therein with which the appellant is dissatisfied, the Civil Code (1910), § 4738, is substantially complied with. The appeal need not set forth the judgment.</p>

<p>Bare possession alone, either of land or chattels, authorizes the possessor to recover damages from any person who wrongfully in any manner interferes with such possession.</p>

<p>Appeal; from Chatham superior court — Judge Charlton. January 16, 1911.</p> <p>Wall sued Schwarz in a justice's court for $100. The petition, in substance, alleged, that in May, 1908, he sold to the defendant a mare named “Aleyon” for $200 in cash; that, as a further consideration, Schwarz agreed to raise two colts from the mare, and to deliver to the plaintiff the second colt when it reáched the age of six months, and that- upon this agreement the plaintiff accepted the $200 in cash and delivered the mare to the defendant; that sufficient time had elapsed for the defendant to perform his agreement in reference to the colt, but that he failed and refused to do so; that it was understood at the time of the trade that the colt would be of the value of $100 when six months old; and the suit was brought to recover this amount. Judgment was rendered for the plaintiff, for the full amount,'and the case was appealed to the superior court.</p> <p>On the trial in the superior court the plaintiff proved that the defendant desired to buy from him the mare in question, and that he asked $300 for her; that, after some negotiations between the two, it was expressly understood and agreed that the plaintiff would sell the mare for $200 cash, and, as a further part of the agreement and of the consideration for the sale of the mare, the defendant agreed that he would breed the mare, and would give its second colt, when six months old, to the plaintiff, keeping the first colt for himself. The plaintiff asked for a written agreement to this effect. The defendant said that his word was as good as his bond, and he would do what he said. The plaintiff said, “All right,” that the defendant could take the mare for $200 and deliver to him the second colt when it was six months old. The mare was delivered to the defendant, and subsequently a colt was bred from her. The plaintiff proved that after waiting for a sufficient time to elapse in which to give ample opportunity for the second colt to be bred from the mare, and notwithstanding the fact that the mare was in condition for breeding a second colt, and that he demanded of the defendant that he comply with his contract and have the colt bred and delivered to him when six months old, the defendant declined to breed the mare further. The plaintiff proved also that a colt bred from' the mare in question at six months old would be worth at least $100. The evidence further showed that the name of the mare was not “Alcyon,” but “Ajulai,” and was known as “Dr. Duke’s mare.” There was no question in the evidence, however, as to the identity of the mare sold to the defendant, whatever may have been her name. The plaintiff offered an amendment to the petition, alleging that the mare which he sold to defendant was a sorrel mare known as “Dr. Duke’s mare,” and was well known to the defendant; and the refusal to allow the amendment is assigned as error. At the conclusion of the plaintiff’s evidence the court sustained a motion to nonsuit, and this judgment is brought here for review.</p> <p>The motion to nonsuit was based upon the following grounds: First, that the petition alleged that the plaintiff sold a mare named “Alcyon,” and it appears from the evidence that the mare was named “Ajulai,” and that “Alcyon” was her mother. Second, that the promise on the part of the defendant to give the second colt to the plaintiff was without consideration, and was no part of the agreement to purchase the mare. Third, that the burden was upon the plaintiff to prove his damages, and there was no proof of the value of the colt when six months old. The court sustained the motion to nonsuit, on the ground that there was a material variance as to the name of the mare in the petition and in the proof; that the colt was not included in the agreement of purchase, but was “something thrown in for good measure, that in New Orleans would be called ‘lagniappe,’ ” and that there was no proof of damages.</p>

<p>There being no evidence of bad faith or fraud on the part of the owner in selling the property, after the expiration of the agency contract, to a person with whom the agent had been negotiating prior thereto, and it further appearing that the sale was made for a sum less than that named in the agency contract, as to which time was of the essence, the agent was not entitled to commissions on the transaction, even though the sale was made by the owner to the same person and at the price offered by him prior to the expiration of the agency contract.</p>

<p>Conviction of manslaughter; from Worth superior court — Judge Frank Park. January 14, 1911.</p>

<p>This case is controlled by Appling v. Abbeville, 136 (la. 772 (72 S. E. 31).</p>

<p>Indictment for larceny after trust; from Warren superior court —Judge Walker. February 23,-1911.</p>

<p>Accusation of carrying pistol without license; from city court .of Carrollton — Judge Beall. March 7, 1911.</p>

<p>Conviction Ox assault with intent to rape; from Eulton superior court — Judge L. S. Roan. April 1, 1911.</p>

Certiorari; from Fulton superior court — Judge Bell. April 10, 1911. ' X Phillips was convicted in the criminal court of Atlanta of a violation of the prohibition law in keeping liquor on hand at his place of business. The evidence for the State shows that the police officers entered his store with a search warrant, and found in the rear of the store a barrel and a half barrel of quart bottles of whisky, and a part of a barrel of pint bottles of whisky.

<p>Accusation of larceny; from city court of Polk county — Judge Irwin. May 15, 1911.</p>

<p>Conviction of involuntary manslaughter; from Burke superior court — Judge H. C. Hammond. June 24, 1911.</p>

<p>Conviction of involuntary manslaughter; from Madison superior court — Judge Meadow. June 9, 1911.</p> <p>Berry was convicted of involuntary manslaughter in the commission of an unlawful act. He admitted that he shot and killed the deceased, Velma Eberhart, a child not quite 3 years old, but contended it was an accident. The only eye-witness to the shooting was Lillian Lee, a girl 12 years old, who testified for the State: According- to her testimony the defendant came into the room where she and the deceased and another baby were. The deceased was standing by the fireplace. The defendant said to her, “Colne here, Vel.” The child replied, “I am not going to do it.” The defendant had a breech-loading gun in his hand, which he had just gotten from behind the bed,' and was standing in the* doorway. When the child refused to come .to him, he placed a shell in the gun, said, “Old lady is going to lay her body cold,” took deliberate aim, and emptied the entire load of shot in the child’s head. In his statement the defendant said that he did not' know the gun was loaded; that after he picked up the gun, and while he was looking at it, the hammer slipped out of his hand, and the child was accidentally killed.</p>

<p>Indictment for sale of liquor; from Mitchell superior court-judge Frank Park. July 3, 1911.</p>

<p>Indictment for assault with intent to murder; from Madison superior court — Judge Meadow. July 7, 1911.</p>

<p>Accusation of larceny; from city court of Miller county — Judge Bush. July 29, 1911.</p>

<p>Indictment' for robbery;' from Floyd superior court — Judge Mádcíox. July 1*7, 1911.</p>

<p>1. It is not error for tlie court to instruct the jury, as to the statutory offense of shooting at another, not in self-defense or under other, circumstances of justification, that the State need not show either malice or an intent to kill.</p> <p>2. The other charge complained of was not erroneous.</p>

<p>Conviction of shooting at another; from Cobb siiperior court— Judge Morris. August 4, 1911.</p>

<p>Accusation of gaming; from city court of Ocilla — Judge Oxford. July 24, 1911.</p>

<p>Certiorari from Jackson superior court — Judge Meadow. August 3, 1911.</p>

<p>Accusation of sale of mortgaged property; from city court of Americus — Judge I-Iixon. August 5, 1911.</p>

<p>Accusation of sale of liquor; from city court of Oglethorpe— Jiidge Greer. August 8, 1911.</p>

<p>Indictment fox larceny from house; from Campbell superior court — Judge Roan. August 8, 1911.</p>

<p>Accusation df sale of liquor; from city court of Cordele — Judge Strozier. August 5, 1911.</p>

<p>Action for damages; from city court of Thomasville — Judge W. II. Hammond. March 27, 1911.</p>