text:
    438.
    CENTRAL OF GEORGIA RAILWAY CO v. LEWIS.
    1. Summons of garnishment having been served upon a corporation, End it having answered by its agent, denying that it had any money, property, or effects belonging to the defendant, which answer was traversed by- the plaintiff, who thereupon served the garnishee with notice to produce certain vouchers arid original checks, as well as certain letters described in the notice, which were not produced, it was error for the court to pass an order peremptorily requiring the production of such papers, until satisfied by competent evidence that the contents of such papers were in fact necessary and material to the issues involved between the parties. It was therefore error to render judgment against the garnishee in pursuance of such peremptory order.
    2. The determination of the • materiality of evidence involves the exercise of a judicial function; and the conclusion of a witness that the contents of a paper are material, where there is no proof as to wliat the paper contains, is no proof that the papers sought to ho produced are in fact necessary, and can not relieve the court from the duty of passing .upon the question of materiality.
    Garnishment, from city court of Macon — Judge Hodges. April 1, 1907.
    Argued June 25,
    Decided August 8, 1907.

      R. Douglas Feagin, Wimberly & Jordan, for plaintiff in error.

      Hardeman & Jones, contra.
   Russell, J.

The defendant in error brought a suit against the Macon Fair Association, and had summons of garnishment served upon the plaintiff in error, the Central of Georgia Railway Company. The garnishee answered that it was not indebted, and the plaintiff (present defendant in error) traversed that answer. On April 1, 1907, the court entered judgment against the garnishee as in case of default, for $1301.31, and to this judgment the garnishee excepts. The action of the court was based upon the failure or refusal of the plaintiff in error (thé garnishee in the lower court) to satisfactorily respond to a notice to produce, and upon a refusal thereafter to produce certain vouchers and other papers after being required so to do by order of the court. Error is assigned upon this order of the court rendering judgment by default, and complaint is also made that there was no proper service of the notice to traverse. It appears from the record that “on Saturday, March 30, 1907, the case was called for trial before the judge without a jury; and counsel for the garnishee asked for further time within which to respond to a notice to produce, filed in said case b}r the plaintiff and served upon counsel for the garnishee on March 16, 1907, stating that the garnishee had endeavored to get the papers called for, but had been unable to hear from the agents of the garnishee in Savannah, Georgia, in whose custody the papers (if in possession of the garnishee) were.” The notice filed in the case, and to respond to which counsel for garnishee requested additional time, was as follows:

“To the Central of Georgia Eailway Company: You are herebj' notified to produce upon the trial of. the said case in the city court of Macon, to be used as evidence for the plaintiff, the originals of all vouchers issued by the Central of Georgia Eailway Company to the Macon Fair Association, or to Eugene Anderson, Secretary of said Macon Fair Association, or to Bridges Smith, President of said Macon Fair Association, or to any other officer or agent of said Macon Fair Association, or to" any one else for said Macon Fair Association; also the original checks with which said vouchers were paid; also the copies retained by the Central of Georgia Eailway Company of all letters transmitting said vouchers, or any of them.” This was signed by the plaintiff’s attorneys, and an acknowledgment of service thereon, 'dated March 16. 1907, was signed by Mr. Feagin as attorney for the garnishee.

Counsel for garnishee stated in his place that he had delivered the notice to produce (the copy) to Messrs. Wimberly & Jordan, division counsel, at Macon, Georgia, on March 20, 1907, his first opportunity to do so after receiving it from plaintiff’s counsel, and that the division counsel at once, on March 20, 1907, wrote to the proper authorities at Savannah, requesting that the papers called for by said notice be forwarded to Macon at once, if in the possession of the garnishee, and- that no reply had been received as yet to said request. The court then announced that counsel would be given until 9 o’clock Monday morning, April 1, 1907, to respond, to said notice and to produce said papers, and, over the objection of counsel for the garnishee, passed the following order and judgment: “The within notice to produce having been duly served on March 16, 1907, and it appearing that the papers required are in existence and are in possession, power, and control of the garnishee, the person notified to- produce the same, and that said papers are material to the issue, it is so found; and it is thereupon ordered that the garnishee, the Central of Ga. Ry. Co., do have and produce the papers described in the within notice before the court on April 1,' 1907, at 9 o’clock, a. m., or, in default, that judgment be entered thereon and thereupon against said garnishee as in case of judgments by default. This March 30, 1907.” The plaintiff in error contends that this judgment was error, because there was no evidence before the court upon which to base it. The judge certifies that “counsel for the party giving notice stated in his place that the papers called for were material to the case,- and that they were in the custody of the garnishee in the city of Savannah, ’ Georgia, and were not in the custody or control or possession of the applicant; and that as a matter of fact the applicant could get along if one little voucher were produced under the notice, and that the same was in garnishee’s possession in Savannah, Georgia. Counsel for the garnishee then said that he wanted further time to produce this voucher which was in Savannah, and the court then asked would Monday following be sufficient time.” On Monday, April 1, 1907, before the case was called by the court for trial, counsel for the garnishee filed the following demand in writing for a jury: “Now comes the Central of Georgia Railway Company, garnishee in the above-stated ease, and at the term of court at which said garnishment was answered and before the trial of the issue raised by the traverse to the answer of the garnishee, filed in said ease, and in terms of the law, demands a trial by jury on the issue raised by the traverse in said case.” Signed by the garnishee’s attorney. Yfhen the case was called, counsel for the garnishee called the ■court’s attention to this demand and insisted that the same be allowed; but the court refused, to consider said demand, holding that the same was not in' order, and called upon the garnishee to know if it were ready to respond to the notice to produce.

Two questions are raised as presented by the record, to wit: should the traverse have been dismissed; and did the court err or abuse its discretion in entering judgment by default, because of the failure of the garnishee to produce the voucher? A notice to produce' is a harsh procedure, and the law relative thereto must, for that .reason, be strictly construed and followed closely. We think the court erred in granting the peremptory order requiring the garnishee to have the papers in court by nine o’clock a. m. of1 April 1st, 1907, and also in the judgment rendered in favor of the plaintiff against the garnishee. The learned counsel for defendant in error would be right in his conclusion of law if- his premises were correct. The court should have had evidence before it on which to base the proceedings taken, and 'the party giving the notice (defendant in error) should have made the showing required by tlie^ Civil Code, § 5250. Counsel for defendant in error relies upon the recital of the court in the bill of exceptions, that “counsel fcr the party giving notice stated in his place that the papers called for were material to the case, and that they were in the custody of the garnishee in.the city of Savannah, Georgia, and were not in the custodjr or control or possession of the applicant; and that-as a matter of fact the applicant could get along if one little voucher were produced under notice, and that the same was in garnishee’s possession in Savannah, Georgia.” This evidence was competent and sufficient in some respects, and yet it was fatally defective in a most important particular. It was shown that the voucher was in Savannah, by the admission of the counsel for the garnishee; and he asked for time in which to produce it; and although it was not necessary, under the ruling in Morrison v. Hilburn, 126 Ga. 114, 54 S. E. 938, the judgment was introduced in evidence, but there was no evidence as to the contents of the paper sought to be produced, nor that they were material to» the issue; and for this reason the courti should not have granted the peremptory order in the first place, and -rendered a judgment in favor of plaintiff and against the garnishee thereafter. It is true that, according to the certificate of the presiding judge, counsel .stated that the papers called for were material, but this was a mere conclusion of the witness, and not competent evidence, which substituted the judgment of the counsel as to the materiality of the testimony for that of the court; and so far as the trial court 3mew or could know, and so far as this court can know, there is. not a single fact as to the contents of the papers in question from which it can be judicially determined whether the contents of the papers sought to be produced are or are not material to the issue, and as to whether the witness was or was not correct in his conclusion of law. At any rate, in the exercise of harsh remedies the law should he strictly construed. It would have to he very loosely construed for the statement of a witness, no matter how truthful, that the contents of a certain paper or papers are material, to he allowed to oust the judicial function of passing upon thq materiality of evidence. Had the trial judge, upon evidence,, of the contents of the vouchers, properly held them to be material,, we might he able to ‘determine, upon review, that such evidence was material, and for that reason we might he prepared to say that the judgment rendered against the garnishee was correct. In the absence of such evidence the judge could not say that the evidence was material. Nor can we. It is unnecessary to discuss the remaining assignments of error, for the reason that the error of the judge in passing upon the case without sufficient evidence goes to the root of the whole case and demands a new trial.

Judgment reversed.


source: Caselaw Access Project

author: Hill, C. J.

license: Public Domain

text:
    446.
    Davidson & Grinstead v. Waxelbaum & Brother. Davidson & Grinstead v. Waxelbaum Company.
    447.
   Hill, C. J.

1. While the testimony of an alleged partner is competent to. prove the fact of partnership, his mere declaration, written or spoken, is not admissible for that purpose. Abel v. Jarratt, 100 Ga. 732, 28 S. E. 453.

2. Where there is independent prima facie proof of a partnership, the declarations of either one of the alleged partners, written or spoken, are admissible in corroboration. Ham v. Brown, ante, 71, 58 S. E. 316; Jones v. Harrell, 110 Ga. 380, 35 S. E. 690.

3. A general exception to a charge, that'it was not “full enough to clearly explain to the jury the law as to the distinction between a corporation and a partnership, and did not fully set forth the contentions of the defendant,” is not sufficiently specific, and presents no question for the determination of this court. Austell v. James, 97 Ga. 334, 22 S. E. 953; Chambers v. Walker, 80 Ga. 642, 6 S. E. 165; Foote v. Kelley, 126 Ga. 799, 55 S. E. 1045.

Complaint, from city court of Dublin — Judge Burch. February 28, 1907.

Argued June 25,

Decided August 8, 1907.

S. W. Sturgis, James A. Thomas, for plaintiffs in error.

Hardeman & Jones, contra.

4. The written request to charge, in so far as it is sound, is covered by the general charge in much clearer and more pertinent language.

5. The entire charge in this case is a full and fair presentation of the issues involved, and the law applicable thereto. The assignments of error are wholly without merit, and the vérdict is amply supported by the evidence. Judgment affirmed.


text:
    511.
    JONES et al. v. THE STATE.
    1. Offenses of the same nature may be joined in one indictment in separate counts.
    2. The offense of “keeping and maintaining a lewd house” and the offense of “keeping a common, ill-governed, and disorderly house” may be joined in the same indictment in different counts.
    3. A count in the indictment, charging that the defendants “did keep and maintain a common, ill-governed, and disorderly house to the encouragement of idleness, drinking, and other misbehavior,” is sufficiently specific, and is not demurrable because it does not definitely set out the acts constituting the “other misbehavior.”
    4. The law does not favor convictions based upon confessions, and least of all upon implied confessions.
    5. Before testimony tending to show an inference of guilt is admitted to the jury as an implied confession arising from silence when an incriminating statement is made, it should affirmatively appear that such statement was addressed to the defendant, or that he was physically near enough to hear and understand the statement, and that, at the time and place when and where made, it required from him an answer or denial.
    6. The verbal statement of the witness alleged to have been made in presence of the defendants did not measure up to the requirements of the law necessary to show an implied confession by silence or acquiescence, and it was error to admit such statement in evidence.
    7. “Reputation of a house being kept and maintained as a lewd house is admissible evidence.” Such evidence alone, wholly uncorroborated, is not sufficient to establish the offense of keeping and maintaining a lewd house.
    8. The evidence in this' case as to the general reputation of the house for lewdness was fully met by proof of the good character of the only two inmates of the house, and the further fact that for fifteen years no act or circumstance indicating lewdness or immorality was shown. in connection with said house.
    Certiorari, from Franklin superior court- — Judge Kimsey. May 8, 1907.
    Submitted July 17,
    Decided August 8, 1907.

      Joseph N. Worley, for plaintiffs in error. S. J. Tribble, solicitor-general, H. H. Chandler, J. B. Jones, contra. .
   Hill, C. J.

The indictment on which the defendants were tried contains two counts: one under the Penal Code, §391, “for keeping and maintaining a lewd house;” and one under §393, for “keeping a common, ill-governed, and disorderly house.” A demurrer was filed to the indictment, on the ground that it contained two separate and distinct counts charging separate and distinct crimes, -not kindred in nature, and not committed in the same act and at the same time. It is well settled that different counts charging offenses of the same character may be joined in ono indictment in separate counts. Williams v. State, 72 Ga. 180; Hoskins v. State, 11 Ga. 92. We think the two offenses of keeping and maintaining a lewd house, and keeping a common,,ill-governed, and disorderly house are offenses of the same nature, and are properly joined in the same indictment under separate counts.

The demurrer to the second count, on the ground that it charged the defendant with keeping said house for “the encouragement of drinking, idleness, and other misbehavior,” without stating what the “other misbehavior” consisted in, was properly overruled. The words “other misbehavior” were surplusage. Brand v. State, 112 Ga. 25, 37 S. E. 100; Hubbard v. State, 123 Ga. 17, 51 S. E. 11. It would be sufficient to support a conviction under this count if the evidence showed that the defendant kept a common, ill-governed, and disorderly house to the encouragement of idleness or drinking.

It was shown by the evidence that the -two defendants, who were sisters owning and living at said house, had on one occasion, during the fifteen years of their residence therein, fled to a neighbor’s for protection from the disorderly conduct of a drunken man who in that condition had entered their house. This witness was allowed to testify, over the objection of defendant’s counsel, that this intoxicated' man had made in their presence certain incrimimating statements which, they did not deny. It was chown that this man was very drunk and maudlin, and that the women were greatly frightened by his conduct. The maxim qui tacit consentiré videtur, as held in Rolfe v. Rolfe, 10 Ga. 146, “is to be applied with careful discrimination,” and admissions inferred from acquiescence in the verbal statements of others “should always be received with caution, and never ought to be received at all unless the evidence is of direct declarations of that kind which naturally calls for contradiction.” We do not think that such testimony is admissible, unless it affirmatively appears that the incriminating statement or declaration was addressed to the defendants, and they heard and understood • such statement, or were physically near enough to the speaker to hear it, and that under the circumstances • a denial was required and none was made. All of these essential . facts were not shown; and in any event it would be carrying the rule very far to hold that the silence of a frightened woman to the maudlin statement of a drunken man was an implied admission of the truth of such statement. We think the admission of this verbal statement incriminating the defendants, and their failure to contradict it, was erroneous under the circumstances of the case.

The defendants were two sisters living together in a house which they were charged with keeping and maintaining as a lewd house and a disorderly house. They had lived in this house for fifteen years. The only testimony against them was as to the general reputation of the house. Several witnesses testified that the house had a bad reputation, and was generally reputed to be a lewd house. To meet this evidence, it was clearly shown that the defendants were women of some means, owned the house in which they lived, and had besides other property. It was also shown that the authorities of the town in which the house was located had had this house watched for ten years, and not one act of lewdness or disorder was discovered in connection therewith, except that during this time on one occasion a woman was seen to kiss a man in the house. It was not shown who this man was, and it was further shown that the woman had a brother and other relatives who visited them at their home. During the fifteen years in which these women had lived in this house, no act of immorality or improper conduct was shown against either one of them, or as taking place in said house. No evidence was offered to prove that tbe two women were themselves of lewd reputation; and during the entire fifteen years only three men were seen to go to said house. The solicitor-general, abandoned the count for keeping a disorderly house, but relied upon the count for keeping and maintaining a lewd house; and upon this count the defendants were convicted. The conviction rests aloné upon the testimony as to the general reputation of the house for lewdness. There is not one circumstance or fact in corroboration of the testimony as to the general reputation of the house, and every specific fact and circumstance tends to prove that this general reputation was not justified by the real character of the house or the conduct and character of the two inmates. The Supreme Court, in Hogan v. State, 76 Ga. 82, has held that the reputation of a house being .kept and maintained as a lewd house is admissible evidence in the trial of a case for this offense. The Supreme Court did not hold in that case that such evidence alone and uncorroborated was sufficient to support a verdict of guilty; and in that particular case there wds other eorroborative evidence, such as the lewd character of the women who lived in the house, and that men visited the house for immoral purposes. Many courts in other States have held that evidence of general reputation of the house is inadmissible in support of the charge of keeping a lewd house. Henson v. State, 62 Md. 204, 50 Am. R. 204; U. S. v. Jourdine, 4 Cranch, 338, Fed. Cas. 15499; Handy v. State, 63 Miss. 207, 56 Am. R. 803; State v. Plant, 67 Vt. 454, 32 Atl. 237; Nelson v. Territory, 5 Okl. 512, 49 Pac. 920; Wooster v. State, 55 Ala. 217. But, as before stated, the Supreme Court of Georgia' in Hogan v. State, supra, only decided that such testimony was admissible, but did not decide that such testimon3r, without any corroboration, was itself sufficient to prove the charge of keeping and maintaining a lewd house, and to support a conviction therefor. The testimo^r in this case even as to the general reputation of the house was by no means satisfactory as proving such general reputation. Such testimony seems to have been founded upon mere rumors, and not the opinion of character generally entertained by the community. “Mere' rumors are of course not reputation. • Reputation involves a notion of the general estimate of the community as a whole. Not what a few persons say or what many say, but what the community generally believes.” 1 Gr. Ev. (16th ed.) 586.

After a careful analysis of the evidence in this record, we are clearly of the opinion that this verdict was without legal evidence to support it, and that a new trial should be granted.

Judgment reversed.


text:
    585.
    Cothran v. The State.
    Indictment for assault with intent to murder, from Floyd superior court — Judge Wright. May 24, 1907.
    Submitted July 18,
    Decided August 8, 1907.
    W. M. Henry, for plaintiff in error.

      W. H. Ennis, solicitor-general, contra.
   Hill, C. J.

1. Tlie credibility of the witnesses is exclusively a matter for the jury.

2. Although one witness for ■ the State whose testimony supports the verdict may have been attacked by impeaching testimony, and several witnesses to the difficulty charged this one witness with being the actual perpetrator of the crime, yet the jury had the right to accept his testimony as the truth of the case; and this court will not disturb the verdict where no error of law was committed. Judgment affirmed.


author: Powell, J.

text:
    590.
    Hall v. The State.
    Certiorari, from Liberty superior court — Judge Seabrook. May 22, 1907.
    Submitted July 18,
    Decided August 8, 1907.

      A. S. Way, Donald Fraser, for plaintiff in error.
    N. J. Norman, solicitor-general, contra.
   Powell, J.

In order for this court to review a refusal to sanction an application for certiorari, the petition must be incorporated in the bill of exceptions or otherwise verified as a part thereof by the trial judge; an unsanetioned petition can not be specified as a part of the record. Lenney v. Finley, 118 Ga. 719, 45 S. E. 593; Wood v. Tattnall, 115 Ga. 1000, 42 S. E. 403; Tompkins v. Newnan, 120 Ga. 173, 47 S. E. 557; Anthony v. State, 112 Ga. 751, 38 S. E. 79; Evans v. Bloodworth, 105 Ga. 835, 31 S. E. 778; Central Ry. Co. v. Whitehead, 105 Ga. 492, 30 S. E. 814, and cases cited. Writ of error dismissed.


text:
    591.
    GOODMAN v. THE STATE.
    1. In a prosecution for larceny after trust, based on tbe Penal Code, § 194, it is not necessary to allege or prove that any demand was made for the property alleged to have been fraudulently converted before the indictment was found. Under this section, it is only necessary to allege and prove the bailment, the purpose of the trust, and the fraudulent conversion.
    2. No error of law was. committed,, and the evidence fully warranted the verdict.
    Indictment for larceny after trust, from Chatham superior court —Judge Cann. May 8, 1907.
    Submitted July 18,
    Decided August 8, 1907.

      Robert L. Colding, Raiford Falligant, for plaintiff in error.
    ■ W. W. Osborne, solicitor-general, contra.
   Hill, C. J.

The plaintiff in error was convicted of the offense of larceny after trust. The indictment was based on Penal Code, §194, and charges that the defendant, “having been entrusted by one Louisa W. Brinkman as administratrix of tbe estate of C. J. Brinkman, deceased, with certain money, to wit, the sum of $310.97 of the value of $310.97, the propertjr of said administratrix, for the purpose of applying the same for the use and benefit of said owner by safely keeping the same and delivering the same over to said owner, did then and there fraudulently convert same to his own use.” Other counts in the indictment charge the fraudulent conversion of separate sums of the aggregate amount embraced in the first count. The evidence clearly and fully sustained the allegations of the indictment. The bailment and the purpose of the trust were not denied. The plaintiff in error relied upon two grounds of defense: (1) That no legal demand was made upon him for the money. (2) That the money was entrusted by the prosecutor to the Commercial Collecting Agency, a corporation for whom he was acting in receiving it; and that if any larceny was committed, it was from said corporation.

This indictment was properly based upon section 194 of the Penal Code. It does not allege that any demand was made, and, for a violation of this section, no demand is necessary. The offense is complete when the bailment and the fraudulent conversion are shown. Birt v. State, 1 Ga. App. 150, 57 S. E. 965; Keys v. State, 112 Ga. 392, 37 S. E. 762, 81 Am. St. R. 63. The charge of the court that a demand was necessary was more favorable to the defendant than he was entitled to under the statute. Even if a demand as a condition precedent to prosecution was required to be proved, the evidence clearly showed that it was repeatedly made.

The undisputed evidence showed that the defendant was ear- . rying on a collection agency. He operated it under the name of the “Commercial Collection Agency.” The entire business of the “Agency” was conducted by the defendant and his stenographer. While the receipts for the money were signed by the defendant and his stenographer in the name of the “Com. Col. Agency,” the money was all paid to the defendant. There was -no proof of any such corporation, nor does the name- import corporate existence. Under the evidence, the jury.were warranted in the conclusion, that there was no such corporation, but that the defendant was in fact operating as an individual under the term “Agency” for some occult purpose. He was entrusted with the money as an individual, he received every dollar of it into his personal possession, and he converted every dollar of it to his own use. It would be a failure of justice to allow him to escape responsibility for his individual fraudulent conversion because he perpetrated his criminal fraud, in the name of a mythical corporation. The court properly excluded the oral statement of the stenographer that the “Commercial Collection Agency” was a corporation.

Judgment affirmed.


text:
    596.
    Cooper v. The State.
    Indictment for larceny from house, from Warren superior court —Judge Holden. May 24, 1907.
    Submitted July 18,
    Decided August 8, 1907.

      L. R. Massengale, for plaintiff in error.

      David W. Meadow, solicitor-general, contra.
   Powell, J.

Although the evidence is weak and circumstantial only,, yet there being some evidence to support the verdict, this court has no power to set it aside. Jmdgment affirmed.


text:
    606.
    GOLDEN et al. v. THE STATE.
    1. “The doctrine seems to-he established that, in those' States in which, by statute or at common law, it is larceny to bring into the State goods stolen in another State or a foreign country, one who there receives goods with knowledge that they have been stolen in another State or • country is liable to indictment for receiving the goods. This does not apply, however, in those States in which, it is held that bringing into the State goods stolen in another State or foreign country does not constitute larceny; for thé goods must have been stolen in the jurisdiction in which it is sought to punish-for the receiving.”
    2. “Though after committing larceny in an adjoining State the thief brings-the stolen property into this State and here carries it from place to place in a county of Georgia, he does not commit larceny in this State.” Lee v. State, 64 Ga. 203, 37 Am. R. 67. It is, therefore, not a crime for one to receive in this State goods stolen in a foreign jurisdiction. Legislation making such receiving criminal is suggested.
    Indictment for receiving stolen goods, from Chatham superior court — Judge Seabrook presiding. June 8, 1907.
    Argued July 18,
    Decided August 8, 1907.

      Edmund H. Abrahams, Robert L. Colding, for plaintiffs in error.

      W. W. Osborne, solicitor-general, contra.
   Powell, J.

The defendants were accused of the offense of receiving stolen goods knowing them to be stolen. It was alleged that the principal thief committed a burglary in Charleston, South Carolina, stoic the goods rhere, and brought them to the county of Chatham in this State, where the defendants received them with guilty knowledge. The case comes to us on demurrer to the indictment.

“The doctrine seems to be established that in those States in which, by statute or at common law, it is.larceny to bring into the State goods stolen in another State or a foreign country, one who there receives goods with knowledge that they have been stolen in another State or country is liable to indictment for receiving the goods. This does not apply, however, in those States in ’which it is held that bringing into the State goods stolen in another State or foreign country docs not constitute larceny; for the goods must have been stolen in the jurisdiction in which it is sought to punish for the receiving.” 12 Cye. 210. “By express statutory provisions in some States, the offense includes a receiving in one State of property stolen in another. But, in the absence of such provision, proof of, a foreign larcenjr, it is held, will not be sufficient to establish the offense. In a jurisdiction, however, where the bringing by the thief of goods stolen in another jurisdiction is regarded as' a new larceny in the former, a receiver in that jurisdiction will be liable to indictment.” 24 Am. & Eng. Enc. Law (2d ed.), 46, See also Rorer on Interstate Law (2d ed.), 309-320. By the decision of the Supreme Court in Lee v. State, 64 Ga. 203, 37 Am. R. 67, it is well settled that the bringing into this State of goods stolen in a sister State does not constitute a crime under the laws ■of this State; it follows, therefore, that a foreign larceny or buglary will not support a conviction of receiving stolen goods, although under the statutes of this State the latter offense is a distinct crime from the larceny. By our Penal Code, §171, “If any person shall buy or receive any goods, chattels, money, or other effects, that shall have been stolen or feloniously taken from another, knowing the same to be stolen or feloniously taken, such person shall be an accessory after the fact, and shall receive the same punishment as would be inflicted on the person convicted of having stolen or feloniously taken the property.” The portion of this section which relates to the punishment strengthens the argument that only larcenies and felonious takings that occur in this State are contemplated, as respects the principal offender. The courts of this State could not inflict any punishment against the principal felon for his crime committed bejrond her borders; and the same punishment as to the accessory after the fact in this view would be no punishment at all. See Edwards v. State, 80 Ga. 127, 4 S. E. 268. "We think that the law should be otherwise; but, upon a careful review of the authorities in this country and in England, we are sure that it is not. Many States, recognizing this rule as existing in the absence of express statute to the contrary, have enacted laws making criminal the receiving of goods stolen in another jurisdiction. Georgia should have such a statute; but until such a law is passed we must enforce the rule as we find it.

Judgment reversed.


text:
    607.
    LIGHTSY v. THE STATE.
    1. This case is controlled by repeated rulings of the Supreme Court, that’ the law embraced in the Penal Code, §73, does not qualify or limit the law of justifiable homicide as contained in §§70, 71, and that instructions as to these two separate branches of the law of justifiable-homicide should not be so given as to confuse the one with the other,, or tend to perplex the jury in making appropriate application of the-law to the facts.
    2. In no view of the evidence or th.e statement of the accused was the-law of justifiable homicide as laid down in the Penal Code, §73, applicable to this case, and the court erred in giving in charge that section.
    3. In a homicide ease where the evidence and the statement of the accused present only the conflicting theories of murder or justifiable-homicide, it is error for the court to give in charge the law of voluntary manslaughter, and a verdict against the accused for that offense should be set aside.
    4. Thfe other assignments of error are without merit.
    Conviction, of manslaughter, from Chattooga superior court— Judge Fite. May 22, 1907.
    Submitted July 18,
    Decided August 8, 1907.

      J. M. Bellah, F. W. Copeland, W. M. Henry, for plaintiff in error. W. H. Ennis, solicitor-general, W. B. Shaw, contra.
   Hill, C. J.

Bob Lightsy was tried for' murder, and convicted of voluntary manslaughter, in the superior court of Chattooga, county. He made a motion for a new trial, which was overruled. We find three of the grounds meritorious.

Under the evidence and the defendant’s statement, the court erred in giving in charge section 73 of the Penal Code. The Supreme Court has repeatedly ruled that this section should never be given in charge unless there is some evidence tending to show that there was a mutual .combat between the accused and the deceased, or an agreement between the parties indicating a 'mutual intent to fight. Among the many oases expressly so ruling, we cite Powell v. State, 101 Ga. 9, 29 S. E. 309, 65 Am. St. R. 277, where Mr. Justice Little elaborately treats the subject of justifiable homicide under the Penal Code, §§ 70, 71, 73, pointing out clearly when either or all of these sections would be applicable and when not. See also Stubbs v. State, 110 Ga. 916, 36 S. E. 200; Wheeler v. State, 112 Ga. 43, 37 S. E. 126; Freeman v. State, 112 Ga. 48, 37 S. E. 172; Heard v. State, 114 Ga. 90, 39 S. E. 909; Jordan v. State, 117 Ga. 405, 43 S. E. 747. In this case there was no witness to the act of killing. The accused, by his statement, put his defense squarely on the Penal Code, §§ 70, 71. The evidence in behalf of the accused strengthened the position of self-defense made by the statement, and neither by the evidence nor the statement was there any fact or circumstance tending to show any mutual combat or any agreement evidencing a mutual intention to fight. 'The theory of the State was that the accused, after a quarrel with the deceased, threatened to kill him, armed himself, sought and found him, and without any real or apparent danger shot him as soon as he saw him. It is not necessary to give in detail the evidence of the State and the accused, or to attempt to evolve the truth from these conflicting theories. That is a problem for the jury. It is sufficient to state generally that under neither theory was the law of mutual combat as defined by the Penal Code, § 73, in any respect applicable. The evidence both for the State and the accused, including the defendant’s statement, made a ease of murder or justifiable homicide under the Penal Code, §§ 70, 71. Nevertheless the court, after giving to the jury a charge covering the code definitions • of murder and voluntary manslaughter, further instructed them as follows on the subject of justifiable homicide: “Justifiable homicide is the killing of a human being in self-defense, or in defense of his person, as applicable to this case. A bare fear of any of those offenses to prevent which the homicide is alleged to have been committed shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable man, and that the party killing really acted under the influence of those fears, and not in a spirit of revenge.” Again, “If a person kill another in his defense, it must appear that the danger was so urgent and pressing at the time of the killing, that, in order to save his own life, the killing of the other was absolutely necessary; and it must also appear that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given, or that the deceased was manifestly intending or endeavoring, by violence or surprise, to commit a felony upon him.” Now, this charge qualified the right of self-defense as laid down in the Penal Code, §§ 70, 71, by the more exacting limitations of justifiable homicide under § 73. This charge was calculated to impress the jury with the fact that the law of justifiable homicide would not give the right in self-defense to slay one who was manifestly intending and endeavoring by violence or surprise to commit a felony on .his person, unless it also appeared that the deceased was the-assailant, that the slayer had really and in'good faith endeavored to' decline any'further struggle before the mortal blow was given, and that at the time of th'e killing the danger was so urgent and pressing that in order to save his own life the killing was absolutely necessary. This is not the law, and -imposes upon one who is entirely faultless, and who exercises his right- of self-defense under sections 70 and 71, the greater burden imposed upon one who is not without fault, but who voluntarily enters into a deadly mutual combat, and who therefore must show, in order to justify the killing of his adversary, an absolute necessity to do so to save his own life. It is true that the judge further on, in applying the law to the contentions of the parties, restricted his charge to the law of justifiable homicide as laid down in the Penal Code, §§70, 71. But we do not -think this corrected the erroneous intermingling of the code sections, but rather tended to add to the confusion of the jury on the subject.

It is also insisted that the court erred in the manner in which he charged the three code sections under consideration. They were all charged together and in immediate connection with each-other, and without drawing an]!- distinction between the sections; as constituting different kinds of justifiable homicide. We think this exception is well taken. There may be cases of homicide when it would be entirely proper to charge all three of these sections to meet different theories presented by the evidence; but whenever.it is proper to do so, the court should by specific instructions make clear to the jury the application of each section to the different theories arising from the facts and circumstances of the particular case.

In our opinion there was no evidence in this ease that required the court to give in Gharge the law of voluntary manslaughter. If the evidence relied on by the State for a conviction was the truth of the case, the accused was guilty of murder. If the statement of the accused and the evidence in his behalf were the truth of the case, he was not guilty of any offense, but his defense of justifiable homiciue was fully sustained. There is no fact or circumstance in the record upon which a verdict for voluntary manslaughter can be legally predicated, and such verdict should be set aside as contrary to law. McBeth v. State, 122 Ga. 737, 50 S. E. 931; Berry v. State, 122 Ga. 429, 50 S. E. 345; Tolbirt v. State, 119 Ga. 970, 47 S. E. 544. Judgment reversed.


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    613.
    McCONNELL v. THE STATE.
    1. “Reputation of a house being kept and maintained as a lewd house is admissible evidence” on the trial of- a person charged with said of- . fense. Such evidence of itself, and wholly uncorroborated, is not suffi- . cient evidence to support a conviction for said offense.
    2. There were other facts and circumstances in evidence in this ease warranting the jury in concluding that the general reputation of the house for lewdness was in fact its real character; and there being no material error of law, the judgment refusing a new trial is affirmed.
    Indictment for keeping lewd house, from Chatham superior court — Judge Cann. May 28, 1907.
    Argued July 18,
    Decided August 8, 1907.

      Jacob Gazan, O’Connor, O’Byrne & Hartridge, for plaintiff in error. W. W. Osborne, solicitor-general, contra.
   Hill, C. J.

Lizzie McConnell was convicted of the offense o£ keeping a lewd house. Her motion for a new trial was overruled, and she brings the case to this court. The principal ground of error assigned is that the verdict is without any evidence to support it, and therefore contrary to law. To determine this question, it is necessary to consider the evidence for the State, which, briefly stated, is as follows: The defendant was a negro woman living in a house containing nine rooms, mostly bedrooms, located in what might be called the “tenderloin” district of Savannah. Living in the house with her were her son and one negro girl attendant. It was proved by several police officers in the city that the general reputation of the house was that of an assignation or lewd house, and such had been its general reputation for several years. A short time prior to the arrest of the defendant for keeping a lewd house, it was shown that she had rented a room in her house to a young white woman wto was brought there at midnight in a hack by a white man, and that while this woman was in the bonse an abortion was performed upon her, from the effects of which she died. When the officers arrested the defendant, they found in her house a white woman locked in a room up stairs, in a street dress, with her hat off, who gave them a fictitious name and address. The defendant in her statement to the jury admitted that she had rented the house in question for the . purpose of keeping it as a lewd-house some three or four years before her indictment, but stated that she had not kept it for such unlawful purpose for three or four years; that she had discontinued keeping it since said time for improper purposes, and lived there with her son and his wife and child until the death of the wife and child, and had continued to live there with her son until the present time. She stated that she owned the house and would have sold it, but could not get any price for it; that she made her living in the summer time by selling watermelons, and in the winter time, selling wood from a wood yard, and from operating public hacks. It was also shown by the evidence that white men and white women frequented said house. We will first consider the special assignments of error.

The court permitted Murphy, a witness for the State, to testify, over the objection of defendant, that he had, in his capacity as a policeman, visited the residence of the defendant about two months prior to the date of his testimony, while he was investigating “that abortion case,” meaning the casé in which it was alleged that the young white woman had had a criminal operation performed upon her in the house of the defendant, from the effects of which she had died. It was insisted that this testimony was irrelevant and inadmissible, for the reason that if an abortion had been committed in the house of the defendant, such fact was no proof that she kept and'maintained a lewd house, and that the purpose or motive of the witness in visiting the house of the defendant was further irrelevant as not being in line with the alleged purpose for which the defendant kept and maintained the house, and that'such testimony tended to confuse the minds of the jury, and mislead and prejudice them against the defendant. The court, in admitting this testimony, instructed the jury that they were not to consider the evidence in reference to any alleged abortion. We think the fact that a young white woman, presumptively of immoral character, had been an inmate of said house, was a circumstance, its weight to be determined by the jury, illustrating the character of the house.

It is insisted that the court erred in permitting this same witness to testify for the State, over the objection of the defendant, that defendant had stated to him that she had rented a yoom in her house to a white woman about two weeks prior to the visit •of the police officer, it being urged that this testimony was irrelevant, unless the State could show also that the reputation of the woman to whom the room was rented was that of unchastity, or that the purpose of renting the room to her was for prostitution, or that the woman committed an act of prostitution in the house; it being contended that the mere renting of the room in the house to the woman, without proof of more, was not competent evidence on the charge of keeping and maintaining a lewd house. This ■admission of the defendant was relevant testimony in connection with the circumstances, that the woman in question was a white woman who had been brought to the house at -midnight by a white .man who was not her husband or related to her, and that while in -the house this woman had performed upon her an abortion.'

It was said that the court erred in permitting a police officer as a witness for the State to testify, over the objection of •defendant that the woman to whom the room had been rented, and upon whom the criminal abortion had been committed, was mot then in life, it being insisted that this testimony was calculated to mislead the jury, and to prejudice their minds against the defendant. The court, in admitting the testimony, stated to the .jury that he did so for the sole purpose of explaining why the .State did not produce her a's a witness, it having already been shown by the testimony that defendant had rented this white woman a room in the house. The further fact that the* woman was dead could not have been hurtful to the defendant.

Counsel for the defendant offered -to prove by two of the State’s witnesses that when they went to the defendant’s house do make the arrest, they found a white woman in a bedroom up ;stairs, who stated to them the purpose of her visit to said house, und the reason for her presence therein; she stating then and ihere to these officers that she had entered the house for the purpose of finding a dressmaker, thinking that a dressmaker was located therein, and that, seeing the officers coming in, she had become frightened and fled up stairs; that she was a respectable lady,, and was not in said house for the purpose of lewdness. In view of the fact that in the same conversation this woman had given, to the officers a name and address which was found to be fictitious, which facts were allowed to be shown in behalf of the State,, wé think all of this conversation should have been admitted to-the jury'-.' We do not think, however, that the refusal to admit it-was such harmful error as to demand a new trial.

But the main point relied upon by counsel for plaintiff in. error, and presented to this court with much force, is that there was no legal evidence submitted to the jury upon which a verdict-of guilty of the crime charged could have been based. It is urged, that there is not in the testimony of any witness a single fact based upon his 'own knowledge, to prove the offense charged, to-wit, that of maintaining and keeping a lewd house. It is insisted that the testimony given by the police officers, that the defendant maintained and kept a house having the reputation of being a, lewd house, furnishes no evidence to support a conviction, and was inadmissible. The Supreme Court, in Hogan v. State, 76 Ga. 82, held that the reputation of a house .being kept and maintained as a lewd house was admissible evidence on the trial of a person charged with keeping and maintaining a lewd house. It is insisted b>3r' learned counsel that this ruling is unsound and contrary to decisions of many courts of last resort on the same subject; and we are asked to certify this question to the Supreme Court for the purpose of having this decision reviewed. It is said that this evidence is. admissible only where the statute makes it an offense to keep and maintain a house of ill-fame. We think the word “ill-fame” is used in these statutes as synonymous with the word “lewd,” both meaning a house kept for the purpose of permitting the practice of fornication and adultery therein. We can not think that it was intended to create a’ substantive offense in keeping a house which, justly or unjustlyq had the reputation of being a-house of ill-fame. The offense must be the keeping of a house which was in fact, and not merely in name, a house for the practice of immorality. But we do not think it necessary to extend this discussion'. We do not think the Supreme Court, in the decision supra, intended to hold that general reputation of a house of itself alone and uncorroborated'was sufficient evidence to prove the offense, but that it was admissible as a circumstance tending to prove the fact, and, in connection with other facts and circumstances, might be sufficient to prove the existence of the offense. Construing the decision with this limitation, we see no reason to doubt its soundness, or to certify the question to the Supreme Court for review.

Without going into a consideration of the evidence, we content ourselves with the statement that there were other facts and circumstances proved, along with the general reputation of the house, which warranted the verdict of the jury... What might be called the general complexion of the place had the appearance of lewdness, and there were several leprous spots in this complexion which strongly pointed to the existence of immorality. This court can not say that there was no evidence to support the verdict, or that the trial court abused its discretion in refusing to grant a new trial. Judgment affirmed.


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    623.
    SAPP v. THE STATE.
    1. “If upon a sudden quarrel the parties fight upon the spot, or presently agree and fetch their weapons and fight, and one of them is killed, such killing is voluntary manslaughter, no matter who strikes the first blow.” Gann v. State, 30 Ga. 67. A. mutual intention to fight need not be proved directly, but may be inferred by the jury from the conduct of the parties.
    2. There being evidence in the record upon which the verdict can legally rest, this court has no power to grant a new trial.
    Conviction of manslaughter, from Screven superior court— Judge Eawlings. May 27, 1907.
    Submitted July 18,
    Decided August 8, 1907.

      E. K. Overstreet, for plaintiff in error.

      Alfred Herrington, solicitor-general, H. A. Boykin, contra.
   Powell, J.

The accused shot at one Brannen; and the shot straying struck a boy standing by and killed him. It is conceded that the offense is the same as if Brannen had been killed instead of the boy; and, indeed, this seems to be the law. A verdict of guilty of voluntary manslaughter was rendered; and the insistence through the present writ of error is that this verdict is contrary to law and without evidence to support it. It appears from the record, that, a day or so prior to the homicide, Brannen had ordered one of the defendant’s boys ont of a mill operated .by Brannen’s father.- On the day of the fatal rencounter the wife of the defendant came to the store near by the mill and remonstrated with Brannen for his having ordered her -boy out of the mill, and he made her leave the store. We will give the account of the further details of the transaction leading up to the shooting, in Brannen’s words, as taken from the record: “I looked out and about half way between the storehouse and the mill, which was about fifty yards distance, and I saw this man Sapp and his boy; he was sitting on a work-bench, and I saw that, he had a gun. I am pretty sure that he didn’t have the gun in his hand, but as well as I can remember he and his boy were sitting on the work-bench, and the gun was leaning against an oak tree about twenty or thirty feet from them; and I reasoned out in my own mind, those negroes had been working there, but - were not working there that day, and I had just decided that they had come there to attack me. So I picked up my father’s gun that was left in the corner of the store, and I cocked it; it looked as if I was going to have trouble. Mr. Andrews says, ‘What are you going to do, Harry?’ and I says ‘I guess I had better prepare myself to defend myself,’ and I started on, and he says, ‘No, put the gun down,’ and I took the gun and' set it down there still cocked, and left it there sitting in the corner and started over to my father’s.. When I got about half way, the negroes were still talking among themselves in a low tone of voice and looked as if they were mad, and saying what they were going to do if I didn’t let their boys have the privilege of going in the mill-house, and such as that; and this .Sapp spoke up — the first time that he had spoke to me — and he says, ‘Here is my boy now, and he can whip you,’ and he says, if I remember right, ‘We can fix you,’ and he says, ‘There is the boy right now,’ and I says, ‘What have 3rou got to do with it ? Shut your damn black mouth,’ and he says, ‘I will see,’ or words to that effect, and jumped down off the bench and run towards his gun and I noticed he was making towards the gun. I was only a few feet distance from the store and I broke and run back to the store and picked up my gun that I liad left there and run out and of course the gun was already cocked and as. soon as I cleared the doorway I saw from the negro’s actions that he was going to shoot. I judged that he was, at least, and of course I got ready to shoot, and as soon as I did clear the doorway'I did shoot one barrel, he shot also; the two guns — you couldn’t distinguish one from the other. I have learned since, from the amount of shot that struck the store, that it was a very full charge at least in the gun.” It further appears from the testimony of this witness that the defendant’s gun was loaded with large ..shot. Further relevant portions of the testimony of this same witness are as follows: “I did go back to get a gun to shoot the negro-. I did it to defend myself; for he was going after a gun to shoot me with. I started back to the store with the full determination of getting my gun to shoot the negro” to defend myself; when I got to the door and got the gun I immediately tired, and he did too at the same time. I know that my gun didn’t fire first. I know that both guns were fired so close together that you couldn’t distinguish which one fired first. I claim that he was about as quick as I was. When I reached the door the gun was sitting side of the door, and I picked up the gun and fired immediately. I didn’t have to go inside the store to get the gun. I just did clear the door before I fired. I had the gun to my shoulder when I fired. I don’t know whether the negro had his gun to his shoulder or not. • I don’t know how he had his gun, because I was shooting myself; before I started back to the store he didn’t have his gun in his hands, it was standing against the work-bench. When the negro first accosted me he was sitting on this work-bench, which was I should say about twenty yards from the store, and I had got very near about opposite the workbench on my way to the mill before he spoke to me. I was about thirty feet nearer the store than he was. I didn’t have to go' straight. I was kinder across from the work-bench. I was about fifteen yards from the store when I turned and went back to the store. He would have had plenty of time to have shot me, but he didn’t have his gun; it was leaning against the end of the workbench, and he was sitting on the other end of it; he jumped down -off the bench and started to run; he was within, I should -say, twenty-five feet of his gun; he was nearer his gun than I was to the store, but I don’t think it was possible for him to have got his gun and shot me before I got in the store, because he had to get down off of the bench and 'go to his gun and pick it up and cock it and raise it in a shooting position; I don’t know whether his gun was cocked like mine or not; it may have been; I don’t know. So far as I know it wasn’t cocked; he would have had to move pretty fast if he had shot me before I got back to the store, because I was moving pretty fast. The reason, one reason I know he was going for his gun, he said: ‘We come here prepared for you,’ and I was having the argument with him; it was an opinion of mine, a strong belief. When I started out there, Mr. Andrews requested that I leave the gun on the inside, and I left it there. I was expecting a difficulty, and only intending to defend myself. This woman had been in the store and raised this difficulty and went out there, and they were talking among themselves; and when I got a part of the way across, the defendant here says, ‘we come to fix you,’ and then he got down and started for his gun or started in the direction of it. I don’t remember really whether the gun was leaning against the end of the work-bench or against a tree near by. When he turned, and started he went in the exact direction of the gun, and I knew there wasn’t anything else for him to be going for; so I went for mine, and when I shot I saw him with his gun te his face; it was just a glance, only a few seconds.” The shot fired by the defendant struck the boy. The defendant by his statement set up a complete ease of self-defense. There was other evidence for the State; but since, if there was any theory of the evidence by which the jury could have reached the verdict rendered (and that set out above seems to us to authorize it), we are bound to adopt it and affirm the judgment. There being no other error assigned, we do not deem it necessary to set out more than we have already done. The v.erdict seems to be warranted, upon the theory of mutual combat; the words and conduct of the defendant as detailed above seem to us to have authorized the jury to believe that the defendant was willing to fight the matter out, and that Brannen accepted the implied challenge. ‘‘If upon a sudden quarrel the parties fight upon the spot, or presently agree and fetch their weapons and fight, and one of them is killed, such killing is voluntary manslaughter, no matter who strikes the first blow.” Gann v. State, 30 Ga. 67, and cit. This principal case has been frequently cited by our Supreme Court in subsequent cases, and is a clearly-recognized principle of our law. It may be true that at the time the defendant actualfy fired, the person at whom he shot was trying to kill him; but before this fact can be set up in justification, under the Penal Code, § 73, which is applicable in cases of mutual combat, “it must appear that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given.-’-’ Stiles v. State, 57 Ga. 188;. Heard v. State, 70 Ga. 602. If the testimony of Brannen be true, the defendant, by rushing for a weapon, coupled with a threat and an apparent present purpose of using the weapon, became the assailant, and there is no evidence that he declined any further combat. According to the record, the parties, by their mutual preparations for the rencounter, by their quarrel, by their language expressing willingness to fight, by their simultaneous display and use of deadly weapons, made just such a case of mutual combat as is contemplated by the language used in Cann's case, supra.

Judgment affirmed.


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    394.
    TAYLOR et al. v. FOLDS.
    1. The act of August 17, 1903 (Acts 1903, p. 92), regulating sales of stocks of goods in bulk, being in derogation of the common law, is to be strictly construed.’ A sale by one partner of his interest in a mercantile business to his associates is not within the purview of the act.
    2. ' The evidence demanded a verdict finding the property not subject.
    Certiorari, from Fulton superior court — Judge Pendleton. January 28, 1907.
    Argued June 20,
    Decided August 15, 1907.

      Frank M. Hughes, Morris Macks, for plaintiffs in error.

      W. C. Munday, contra.
   Powell, J.

The defendant in érror, Folds, sued out an attachment against Max Ney, setting out that he was doing business under the name of Central Bakery, and obtained judgment thereon. This attachment was levied upon a delivery wagon as the property of defendant. Charles Taylor and Rosa Moskowitz filed a claim to the property. It appeared from the testimony that the debt for which the attachment issued was due Folds for repairs made by him upon the wagon. There was no evidence that Ney had title to or possession of the wagon at the date of the levy or subsequently thereto. Folds did not know, at the time he did the work or at the time he sued out the attachment, that any one except Ney had any interest in the Central Bakery. The wagon was brought to his shop by a son of Rosa Moskowitz; and. this young man told him that Ney would pay for the work. Folds also testified that young Moskowitz afterwards came and got the wagon, and made the statement that his father, A. Moskowitz, had bought out Ney and would pay the bill. To this testimony the claimant objected, but the court overruled the objection. Folds afterwards presented the bill to A. Moskowitz, who declined to pay it. The testimony of the claimant showed that the Central Bakery was a partnership formerly composed of Ney, Taylor, and Rosa Moskowitz. Prior to the levy Ney had sold to his other partners his interest in the business, and also this wagon. At the time of the levy Taylor and Mrs. Moskowitz owned the wagon, and Ney had no interest in it. No notice of the retirement of Ney from the partnership was given. The property was found subject. The claimants obtained a writ of certiorari; but at the hearing the same was overruled and the claimants bring error. It is the contention of the defendant in error that the sale from Ney to his other partners was void, because violative of the act of 1903 relating to sales of goods in bulk.

While at least one State (See Black v. Schwartz, 27 Utah, 387, 76 Pac. 22, 101 Am. St. R. 971, 65 L. R. A. 308) has declared that a law similar in terms to our act of August 17, 1903 (Acts 1903, p. 92), regulating sales of goods in bulk, is unconstitutional and beyond the police powers of the State, the better opinion seems to be that such laws are valid. McDaniels v. Connally Shoe Co., 30 Wash. 549, 60 L. R. A. 947, 94 Am. St. R. 889, 71 Pac. 37; Carstarphen Warehouse Co. v. Fried, 124 Ga. 544, 52 S. E. 598; Parham v. Potts-Thompson Liquor Co., 127 Ga. 303, 56 S. E. 460; Sampson v. Brandon Grocery Co., 127 Ga. 454, 56 S. E. 488. Yet since this statute is in derogation of the common law and tends to restrain the liberty of contract, it is to he strictly construed. A sale by one partner of his interest in a mercantile business to his other partners is not within the letter of the act; and the courts will not by construction give the act such an extension as to include it:

The sale from Ney to his partners not being void by reason of the act of 1903, it follows that the property was not subject. The title to the property was not adjudicated, as against the claimants, by the judgment upon the attachment. Rogers v. Bates, 19 Ga. 545. The attachment was not against the Central Bakery as a partnership, but against Ney alone; and therefore the cases of Gazan v. Royce, 78 Ga. 512, 3 S. E. 753, and DeLeon v. Heller, 77 Ga. 740, holding that an attachment against a partnership which does not specify the names of the partners is not void, is not applicable. Folds’s lien arose only upon'the levy of the attachment; the title of the claimants arose prior to that time,' and was therefore superior. It is possible that by a direct action Folds might have sued Taylor and Mrs. Moskowitz and have obtained judgment against them by reason of their connection with the partnership for which he did the work on the wagon; but that issue was not and could not have been on trial in the claim case; the quasi-equitable character of a claim case is not so broad as to permit the introduction of a collateral issue of this nature; especially is this true in the absence of equitable pleadings. Howard v. Porter, 99 Ga. 649, 27 S. E. 725. The fact that no notice was given by Ney of his retirement from the partnership may have caused him to remain liable for debts contracted by his partners in the partnership name, but did not have the effect of making the property of his partners subject to attachment and judgment against him individually. The statement of the son of Mrs. Moskowitz, made to Folds, that his father would pay the debt contracted by Ney, was clearly objectionable. Judgment reversed.


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      288, 289.
    WEAVER v. DAVIS et al.

    1. As a general principle, statutes of limitation are subject to no exceptions, unless such exceptions be expressed.

      (a) Notwithstanding this general • rule, the courts will imply judicial exceptions from “invincible necessity,” where it is legally impossible for the plaintiff to sue within the time limited.
    <&) The absence or the removal of the defendant from the State is a statutory, and not a judicial exception.
    (c) The limitation statute of March 16, 1869, wherein all causes of action which accrued prior to June 1, 1865, were required to ,be sued prior to January 1, 1870, contained no exception saving from its operation suits against defendants who had removed beyond the limits of the State, and no such exception can be implied as to actions falling within its terms.
    Certiorari, from Newton superior court — Judge Roan. September 27, 1906.
    Argued April 29,
    Decided May 16,
    Rehearing denied May 28, 1907.

      Cornwell & Gunn, Greene F. Johnson, J. D. Kilpatrick, for plaintiff in error. Rogers & Knox, contra.
   Powell, J.

On February 5, 1862, Weaver executed his two promissory notes, pa3’able to Nancy Weaver or bearer, due twelve months after date, for $175 each. The notes afterwards became the property of the plaintiffs. In 1866, Weaver left the State of Georgia and went to the State of Texas, and has never returned to reside in this State. In 1905 Weaver became entitled, by will, to a legacy of the value of some three thousand dollars, in the hands of an executor'in this State; and the plaintiffs sued out an attachment and garnishment. The declaration in attachment set out the facts stated above. The defendant resisted the action, by demurrer, asserting that the cause of action having accrued prior to June 1, 1865, the same became barred on January 1, 1870, by virtue of the fourth section of the limitation statute of March 16, 1869. The county judge sustained the demurrer; the plaintiffs brought certiorari; in the superior court the certiorari was sustained, and the judgment of the county court reversed. To this judgment of the superior court the defendant excepted, and brings error to this court.

The statute of March 16, 1869, was drastic in terms. It was broad and sweeping. In substance it provided that all suits upon causes of action which accrued prior to June 1, 1865, .should be brought by January 1, 1870, and not thereafter. No exceptions were made, save only cases against certain fiduciaries, for fraudulent conduct. No reference was made in the act to any of the ordinary exceptions to the running of limitation, appearing then, as now, in the code. It is contended by the plaintiff in error that it was not the intention of the legislature to repeal, or to render unavailing, the provision then existing in the code and now contained in the Civil Code, §3783, viz.: “If the defendant in any of the cases herein named shall remove from the State, the time of bis absence from the State, and until he returns to reside, shall not be counted or estimated in his favor.” At first blush, this view seemed to us to be tenable, but after a thorough examination ■of the decisions which have been rendered in relation to this act (and the Supreme Court had the statute before them for consideration very frequently during the decade immediately following its passage), we have reached the conclusion that the county judge was correct, and that the statute is subject to no exceptions other than those contained therein, save only that class of exceptions applicable from necessity to all limitation laws and known as judicial exceptions. His honor, Samuel H. "Sibley, judge of the county court of Greene county, presided at the trial of the cause, and filed with his judgment sustaining the demurrer an opinion. This eminent young jurist has gone into the question so carefully, and has collated and distinguished the authorities so well, that we are content to incorporate his opinion herein, with only a few additional remarks. Judge Sibley’s opinion is as follows:

“The note sued upon is not under seal, is dated February 5, 1862, and is due one year thereafter. In February, 1863, limitation began to run, until suspended by the legislature of 1864. In 1866 the defendant removed to Texas, and has since resided there. Hnder the act of 1855 and the code provisions since, this removal suspended the statute of limitation, even after the repeal of the suspending statutes passed during the war; and made an attachment of the debtor’s effects in this State possible at any time prior to the expiration of the limitation period after his return to reside in this State. Whitman v. McClure, 51 Ga. 590. The attachment in this case, though sued out forty-five years after the maturity of the debt and the accrual of the cause of action thereon, would be in time, unless barred by the provision of the act of 1869. That act, stated generally, provides, that actions not barred in March, 1859, on notes maturing prior to June 1, 1865, should be brought by January 1, 1870, or the right of the party plaintiff, and all right of action for its enforcement, should be forever barred. In its last section the act provides that causes of action accruing since June 1, 1865, should be ‘controlled and governed by the limitation laws as set forth in the revised Code of Georgia.’ It does not appear in the pleadings whether at all times since the removal of the defendant from the State, he has had property here capable of attachment; nor is that question material. The note is the cause of action, even where the special remedy by attachment is pursued.; and it must be concluded that this is an action on a note ‘accruing prior to June 1, 1865/ and within the provisions of the act of 1869, and not within the ‘limitation laws as set forth in the code.’
“Is the act of 1869 a statute whose only purpose was to make a. uniform and short period of limitation, equal to nine months and. fifteen days, for the classes of action dealt with by it, in substitution of the varying and longer periods named in the code, leaving all other provisions of the limitation laws, and especially the ‘exceptions and disabilities/ applicable to this new period so prescribed ? Or was it intended to be, for the classes of actions covered' by it, generally described as ‘ante-bellum claims/ the exhaustive and only limitation law, without other exceptions than stated in its face? As an original proposition, I think the latter was its-purpose; that it was intended to meet a situation unprecedented,, and to compose and set át rest all contentions dating beyond that period, that saw not only political but financial revolution, that had altered all conditions and disturbed all calculations, removed from life probably nine tenths both of parties and witnesses to> disputes, and made imperative a complete readjustment of all business affairs, — that it was intended to be as near a statute of bankruptcy as the State could enact. Constitutional considerations, however, have made this purpose not free from embarrassment, and have produced interpretations of the statute, by our Supreme Court, perhaps not free from contradiction. In Hobbs v. Cody, 45 Ga. 478, it was held that a ward arriving at majority in September, 1869, was not barred in August, 1870, from suing her guardian for her estate, received in 1860. This case has been, cited in Lake v. Hardee, 57 Ga. 458, 487, as authority for the-proposition that the act of 1869 did not run during a plaintiff’s minority. It really ruled that the plaintiff’s right of action against her guardian did not accrue until maturity gave her the right to demand possession of her estate. It has been pointed out, too, that the suit was for the estate as it was in 1869, and not for a devastavit prior to June, 1865, and so not within the act o£ 1869. Jordan v. Ticknor, 62 Ga. 129. Compare Windsor v. Bell, 61 Ga. 671 (2).
“In Adams v. Davis, 47 Ga. 339, the question was whether a suit, validly begun within the. period named by the act of 1869, could be renewed within six months of its dismissal, after January 1, 1870, by reason of the exception to- that effect found in section 2881 of the Code of 1868. 'That section is in title 7, chapter 9, article IX of that code, which article is entitled, ‘Limitations of actions on contracts/ The article is subdivided into three sections: ‘Periods of limitations/ ‘Exceptions and disabilities,' and ‘New promise.' §2881 is one of the paragraphs of the second section named. The question was squarely made whether the act of 1869 merely substituted the first of these sections as to the period of limitation, or whether it was, as to the actions covered by it, the sole law on the subject of limitation. A majority of the court reached the latter conclusion, on reasoning that would eliminate the whole of the statutory provisions contained in the second and third sections of the article of the code in question. This conclusion was followed by the same majority in the cases of Macon R. Co. v. Bass, and McConnell v. Fain, 52 Ga. 13, and affirmed by a full court in Goss v. Roberts, 54 Ga. 494. The reasoning is repeated and enforced, and the conclusion followed again, in Reese v. Tollerson, 70 Ga. 443. Meanwhile,, in Seminary v. Atwood, 50 Ga. 382, the question arose whether the twelve-months exemption from suit of the debtor’s administrator was an excuse for not suing by January 1, 1870, but it was not decided. In this case attention is given to the constitutional phase involved, as to giving a plaintiff a reasonable time to assert his right against the debtor. At the previous term in the case of George v. Gardner, 49 Ga. 441, it had been held that the nine months and fifteen days allowed by the act was, in ordinary cases, reasonable, and that the statute was constitutional. In Simmons v. Moseley, 55 Ga. 35, where the maker of a note due before June, 1865, had moved to Texas and died, a. suit against a Georgia administrator who became subject to suit was held barred. It was. stated that the ease was within ‘the letter of the statute/ that is, the suit had not been filed by January 1, 1870, and it was further stated that if there was an implied exception because of the death and want of representation of the debtor, the spirit of the statute would still bar it. [The suit was not brought until moTe than 9 months and 15 days after the judicial exception brought about by the death of the debtor had ended.] In Jordan v. Ticknor, 62 Ga. 123, it was stated that § 2875 of the Code of 1868 (§ 2926 of tire Code of 1873), being one of the ‘exceptions and disabilities’ referred to above, its provisions saved a minor from the operation of the act of 1869 during his minority, being unrepealed by that act. The suit was nevertheless held barred. In both of these cases it was held that the act barred the suit. The .recognition of exceptions and disabilities therefore did not in any way alter the result leached and the judgment rendered, and the expressions of opinion in that respect might be treated as obiter. In the former case the removal to Texas did not figure at all in the case. The debtor was dead before 1865. In Edwards v. Ross, 58 Ga. 147, lunacy and non-residence of the debtor existed, but it is not even asserted that they would have tolled the act of 1869. In this, as in other ■cases, however, nine months and fifteen days had elapsed since the removal of impediment to suit, and the suit was held in any case to be barred. It will therefore be seen that there has been no judicial opinion, even obiter, expressed to the effect that removal from the State of the debtor would save a claim from this act.
“The recognition of exceptions in favor of infants and unrepresented estates, and the exemption of administrators from suit for twelve months,'have been obiter, except in the case of Lake v. Hardee, 57 Ga. 460 (6). It was held there, in the headnote, that the cause of action ‘did not accrue, until majority or the appointment of a guardian.’ This language, whether good law or not, would not amount to a holding that all the exceptions and disabilities of the code applied to the act of 1869, nor even that that in reference to minors applied: but it was a simple construction of the word ‘accruing,’ in the act. The expression in the opinion, that the act of 1869 did not run against minors, for which Hobbs v. Cody, 45 Ga. 478, is cited as authority, is utterly unjustified by the case cited, which did not involve a liability to which the act was applicable at all. See Jordan v. Ticknor, 62 Ga. 129. But if the cases in 55 Ga. 35, 57 Ga. 460, and 62 Ga. 123, supra, are authority that the exceptions of the code there dealt with were of force as against the act of 1869, and, therefore, the exception as to non-residence is by analogy to be held of force, it must be replied that it has with greater positiveness been held that the exception as to renewal in six months was not of force; and the same analogy would exclude the exception as to removal from the State. The latter point having been ruled by a unanimous court in Goss v. Roberts, 54 Ga. 494, and that decision never having been reviewed or overruled, any conflict in the principle of that decision and that of the other decisions referred to must result in adherence to the earlier ruling.
“The constitutional requirement that a limitation statute should give a plaintiff a reasonable time to enforce his right might necessitate the recognition of some exceptions to the requirement that suits should be commenced by January 1, 1870. This seems to have influenced the court in some of the expressions recognizing such exceptions. There was no such reason for giving a plaintiff a second chance under the renewal exception; and it was denied. It may be equally said that in the ease of removal from the State, naturally and logically- the action follows the debtor to his new-home. Georgia ,is under no constitutional or other obligation to afford any remedy against the removed debtor in her courts. The remedy here by attachment might constitutionally be abolished altogether. .To refuse to preserve the right to sue a removed debtor, as against the ordinary statute of limitations, in ordinary circumstances was never considered an anomaly, either in England or in Georgia. Bishop v. Sanford, 15 Ga. 1. In the extraordinary circumstances engendered by the war, there was certainly no constitutional or other legal necessity or propriety in recognizing such an exception to the limitations prescribed. There is less hardship in requiring the creditor to follow his debtor to his new residence to enforce his debt, than in requiring the debtor to answer nearly a half century afterwards, when even the common law would presume payment in twenty years. The act of 1869 waspre-eminently intended as a 'statute of repose.’ Its object was not only to protect defendants from their ancient misfortunes, but also, as a matter of public policy, to protect our courts from controversies over these old, uncertain, perhaps inequitable, -demands-of other days. If the want of a defendant to be proceeded against in Georgia is to hold off the act of 1869, there is no reason why fifty years hence an administrator upon some estate of a long-deceased non-resident debtor might not be appointed, and the property administered to such claims. There being no authority to the contrary, and no constitutional difficulty to be encountered, I Conclude that a plaintiff, himself under no disability, and having in March, 1869, an unimpeded right to sue bis debtor resident in another State in the courts of that State, lost his remedies in the Georgia courts by failure to enforce his debt by action taken prior to January 1, 1870.”

We will only add that it is a general rule that limitation laws are subject to no exceptions, unless expressly provided. Notwith-. standing this rule, a limited class of exceptions not provided by statute, but arising out of invincible necessity, are universally recognized. 19 Am. & Eng. Enc. Law (2d ed.), 212 et seq. Exceptions of this latter class arise where such a state of affairs exists as to render it legally impossible for the plaintiff to sue within the time limited. Of this class are those cases wherein the plaintiff is prevented from exercising his remedy by a paramount power, as injunction or other process of a court, direct or indirect legislative action, the death of either of the parties, the abolition of a city’s charter (as to suits by its creditors), the existence of a state of war, non-existence of a court wherein the suit may be brought. Absence of the defendant from the State or beyond the seas has never been regarded, either at common law or in American jurisprudence, as such an exception. An examination of the authorities cited by the defendant in error will show, that while the Supreme Court in these cases recognized the judicial exceptions as applicable to the statute of 1869, it has never, except in certain mere statements obiter, recognized any other exceptions.

Judgment reversed.

Russell, J., dissents.


author: Russell, J.

text:
    141.
    DEAN v. DONALSON, executor.
    1. Any justice of the peace within the county where the debtor may reside, or where his property may be found, can issue a distress warrant for rent; and unless the amount claimed exceeds one hundred dollars, such justice has jurisdiction to try the issue made by a counter-affidavit, whether the defendant resides in his district or the property be found in his district or not, provided the county be that of the defendant’s residence.
    2. An executor, administrator, guardian, or trustee can sue out a distress warrant in his individual capacity, and terms indicating a representative capacity, if used, may be treated and disregarded as surplusage.

      Certiorari, from Decatur superior court — Albert H. Russell, judge pro hac vice. May 23, 1906. '
    Submitted February 26,
    Decided September 19, 1907.

      Byron Bower, for plaintiff in error. A. E. Thornton, contra.
   Russell, J.

J. R. Donalson, as executor of the will of C. U. •Curry, rented certain premises to Frank Dean. The rented premises were part of the estate of the deceased. On the 8th of November, 1905, a distress warrant was issued by W. G. D. Tonge, N. P. & ex-officio J. P. of the 513th District, G. M., of Decatur county, in favor of Donalson, executor, and against Dean, for the •sum of $100. The constable levied on certain personal property of the defendant in the 1188th district of said county. The defendant filed a counter-affidavit and bond, and the papers were returned to the justice of the 513th district, who had issued the warrant. When the case was called in its order, the defendant filed a plea to the jurisdiction, showing that he resided in the 1188th district G. M., and had never resided in the 513th district. Counsel for Donalson in open court admitted the facts set up in the plea. Thereupon the defendant moved to dismiss the levy and.quash the warrant, upon the ground that the justice of the 513th district had no jurisdiction of the person or property of the defendant. The-magistrate overruled the motion and refused to transfer the case to the court which defendant claims had proper jurisdiction, and over ■defendant’s objection proceeded with the trial. On the trial the plaintiff put in evidence the affidavit and distress warrant, the ■entry of levy, and the will of his testator, showing that he was therein named executor; and testified that as executor he rented ■ the premises to Dean, and that the rent was due and unpaid. On ■cross-examination he testified that Frank Dean did not owe him anything individually, that there was no contract between the defendant and himself individually, and that the amount due was ■due the estate of C. P. Curry, the deceased, of which he was executor. The plaintiff having then closed, the defendant moved that the levy be dismissed and the warrant quashed, and for a judgment in his favor, upon the ground that the evidence showed that whatever debt or contract existed was with the estate of C. IT. Curry, and not with Donalson, and that the proceedings were for James E. Donalson individually, — the words as executor of the estate of C. P. Curry and the word executor being merely descriptio personae. This motion the court also overruled, and granted a judgment in: favor of the plaintiff as executor of the estate of C. IJ. Curry against the defendant (now plaintiff in error) and the securities-on his bond. The plaintiff in error insisted that both rulings were-erroneous, and carried the case by certiorari to the superior court;, but the certiorari was dismissed by his honor Albert H. Russell, judge pro hac vice. Three questions are made by the record: (1) Could the justice of the peace issue the distress warrant? (2) Did the justice issuing the warrant have jurisdiction to try the issue' raised by the counter-affidavit, when it was admitted that the defendant lived in a different district? (3) Was the plaintiff entitled, under the evidence, to a judgment in his favor ?

1. As has heretofore been held by this court in Woolsey v. Lawshe, 1 Ga. App. 817, 57 S. E. 1039, any justice of the peace-of the county where the debtor resides or has property can-issue a. distress warrant; for this is the express provision of the Civil Code, § 4818. See also Almand v. Scott, 83 Ga. 403 (2), 11 S. E. 653; Jones v. Wylie, 82 Ga. 745, 9 S. E. 614. So that the right of the justice to issue the distress warrant in this case can not be? questioned.

The answer to the second question is not so absolutely clear, so far as direct authority is concerned. At least we have been, unable to find any Georgia case where it has been distinctly decided in terms that any justice of the peace of the county can try the issue made by distress warrant and counter-affidavit. But-in the case of Jones v. Wiley, while this question was not then before the court, Justice Simmons in rendering the opinion draws a. distinction between the foreclosure of liens in a justice’s court and the issuance of a distress warrant, and the intimation is strong that the justice who issues a distress warrant, if the amount be not greater than a hundred dollars, would have jurisdiction to try any issue arising thereon. The motion made in this case was to-dismiss the levy; and Chief Justice Bleckley in Almand v. Scott, 83 Ga. 403, 11 S. E. 653, in the latter portion of the third headnote,. holds that the fact that a distress warrant is returnable to another district does not entitle a claimant to have the levy dismissed. No opinion was delivered in the Almand case, but from the statement of facts in that case it appears that it was tried in the district of the defendant’s residence, and from the reading of the whole third headnote it is clear that the learned Chief Justice construed the words, “the court having cognizance thereof,” in the Civil Code, §4819, as we do, as meaning the court which issued the warrant; this subject, however, to the exception provided in §4818, that if the sums claimed to be due exceed one hundred dollars, the issue shall be tried either in a county, city, or superior court. We think there is no question that the words, “having cognizance thereof,” quoted above, give the justice of any district in the county of defendant’s residence, who has issued a distress warrant, the right to try any issue which may be raised by a counter-affidavit. In ordinary parlance, to “have cognizance of” means to have knowledge of; and the only court necessarily presumed to have knowledge of the issuance of a summary proceeding, such as a distress warrant, would be the justice who has issued it. But the legal meaning of the word “cognizance” is broader than its ordinary meaning. It not only implies knowledge of the subject-matter but power to deal with it. “Cognizance is a word of the greatest import, embracing all power, authority, and jurisdiction.” Webster v. Commonwealth, 59 Mass. 386. And the Supreme Court of Pennsylvania in Clarion County v. Western Hospital, 111 Pa. St. 339, 3 Atl. 97, held that the word “cognizance,” as used in a statute providing that an application may be made “to any judge learned in the law, of any court within this commonwealth having immediate cognizance of the crime,” is used in the sense of “the right to take notice of and determine a cause.”

As to the third point, it is sufficient to say that there is no variance between the judgment rendered and the affidavit and warrant, and treating the words, “executor of the estate of C. U. Curry,” as being merely descriptio personae, both the proceedings and the judgment may be treated as in favor of Donalson as an individual. As it is undisputed that the contract of rent was made by the defendant for realty belonging to the estate of the testator and that Donalson is his executor, he could sue and recover, as he has, as an-individual. It has frequently been held that a note made payable to an administrator is the property of such individual, and not of the estate of his intestate; and the rule would be the same in regard to any other contract as if it were evidenced by a note. “The legal title to promissory notes and other evidences of debt taken by a guardian, executor, or administrator is in such guardian, ad-» ministrat'or, or executor, and he has the right to collect or sell and transfer the same, passing the legal title thereof to the transferee.” Fountain v. Anderson, 33 Ga. 379, 6. And the court proceeds to say that although the purchaser of a note in such a ease may know that the note belonged to an estate, the purchaser is not liable to account for the amount of the note so purchased or any loss accruing thereby, if the transaction is made in good faith. “Every guardian, administrator, or executor is prima facie liable to his ward or to the estate represented for all notes taken by him” (and we may say for all debts becoming due to him) “in the discharge of the duties of his office, such as notes taken for property sold, rented, or hired,” etc. See also Zellner v. Cleveland, 69 Ga. 633; Henderson v. Hill, 64 Ga. 293. This ruling is made upon the theory that the descriptio personae should be rejected 'as surplusage, and that the entire proceeding can properly be treated as being carried on by Donalson individually. So far as the evidence in this case shows, the defendant in error could have sued out the distress warrant in the first instance in his own name, under the third exception provided in the Civil Code, § 3037. Morgan v. Morgan, 65 Ga. 493; Spence v. Wilson, 102 Ga. 764, 29 S. E. 713; Fargason v. Ford, 119 Ga. 343, and cit., 46 S. E. 431.

Judgment affirmed.