text:
    339.
    RHODES, DOLVIN & COMPANY v. CONTINENTAL FURNITURE COMPANY.
    1. Where an attachment is returned to a court which the papers show-on their face does not have jurisdiction thereof, that court should refuse to entertain jurisdiction, and may order the proceedings transferred and returned to the proper court.
    2. Where a contract of sale contemplates transportation to the purchaser through the medium of a common carrier, ordinarily delivery of the goods to the carrier and acceptance from it of its standard bill of lading is delivery to the purchaser.
    Appeal, from Greene superior court — Judge Lewis. November 7, 1906.
    Argued May 13,
    Decided May 28, 1907.

      S. H. Sibley, for plaintiffs in error. J. P. Brown, contra.
   Powell, J.

This action commenced by attachment issued by the justice of the peace of the 123d district, G. M., Greene county. The affidavit recited the residence of the defendant as being in the 141st district of that- county. The bond in describing the case recited that the attachment ivas returnable to the justice’s court of the 143d district, and the attachment itself was, by the justice, made so returnable. Thereafter the plaintiff, by leave of that court, amended the attachment and bond by striking the words “143d district” and inserting the words “141st district.” It does not appear that the security to the bond consented to this amendment. After ordering the amendment, the justice of the 143d district directed that the case be withdrawn from that court and transferred to the justice’s court of the 141st district, “to which it is returnable.” The statutory notice of the pendency of the attachment in the justice’s court of the 141st district was given to the defendant for the purpose of recovering a personal judgment. Without objection, the parties went to trial in that court, the defendant obtained judgment, and the plaintiff appealed to the superior court. In that court the defendant assailed the pleadings by moving to dismiss the case, “upon the ground that the papers showed upon their face that the case was one regularly sued out and returned to the justice’s court of the 143d district, G. M., and that the attempted amendment and transfer thereof from said named court to that of the 141st district was without authority of law and void, and said court of the 141st district was Avithout jurisdiction to enter a confession of judgment by the - plaintiff therein, and the superior court was without jurisdiction to entertain an appeal from such a' confession, and further moved that the ease be remanded to said court of the 143d district, as a case pending therein and undisposed of therein.” The court overruled the motion, and the trial resulted in favor of the plaintiff. The defendant renewed his attack by motion in arrest of judgment, on the following grounds: “Because it appears on the face of the record that said case was an attachment regularly sued out to the justice’s court of the 143d district, G-. M., and that the bond given was for an attachment returnable to' said court, and the attachment was actually returned to said court, and the papers made a case lawfully pending therein. It appears further that said court, without consent of the defendants or of the security in the attachment bond, undertook to transfer said ease to the justice’s court of the 141st district, and that confession of judgment was there entered by the plaintiffs without a trial. Movants show, therefore, that said court of the 143d district was without lawful authority to enter the orders it did and to transfer said case to said court of the 141st district, and that said latter court acquired no jurisdiction thereof, and that an appeal from a judgment in said latter court invests this court with no greater jurisdiction than said justice’s court had, and that there is no regular or lawful basis in the record for a judgment in this court.” The court overruled the motion in arrest of judgment and also a motion for a new trial. The defendant brings error.

We think that neither the motion to dismiss the action nor the motion in arrest of judgment was well taken. The law fixed the jurisdiction to hear the case in the district of the defendant’s residence. While an- attachment should give directions for its Teturn, still “it is not this written direction to the sheriff or constable which gives the court jurisdiction, but the law.” Blake v. Camp, 45 Ga. 298. Lack of jurisdiction in the justice’s court of the 143d district appeared on the face of the record, since the affidavit recited that the defendant resided in the 141st district. The justice’s court of the 143d district, therefore, properly declined to assume jurisdiction of the same. Every court has jurisdiction to entertain cognizance of a matter presented to it to the extent of determining whether it has jurisdiction, and, if it finds that it has no jurisdiction, of giving directions to the matter, consistent with its lack of jurisdiction. When the justice of the peace discovered that he had violated the provisions of the statute, in returning the case to his own court, he properly refused to take jurisdiction; and his direction that it be transferred to the proper court, while probably not necessary, was an- order consistent with his lack of jurisdiction. See Carreker v. Thornton, 1 Ga. App. 508, 57 S. E. 988, and cit.

At all events, the case was finally in fact filed in the proper court. In that court every amendable defect became cured by the trial and the judgment; for it is shown by the record that the defendant appeared at the trial and testified, though that trial resulted in a confession of ‘judgment by the plaintiff. See Covington v. Cothrans, 35 Ga. 156; Blake v. Camp, 45 Ga. 298; Townsend v. Stoddard, 26 Ga. 430; Williams v. Buchanan, 75 Ga. 789; R. & D. R. Co. v. Benson, 86 Ga. 205, 12 S. E. 357, 22 Am. St. Rep. 446. It is true that the bond recited that it was given in a case returnable to the 143d district; and it may be that consent of the surety was necessary to an amendment of the bond, and even that the attempted amendment of the bond rendered it void as to him, so that it was no longer a good bond; hut as to these-things we give no opinion, for no attack was made upon the bond in accordance with the statutory method provided in the act of November 11, 1899. Ga. Laws 1899, p. 37. If the bond were found deficient, there would result, not a dismissal of the case, but a dismissal of the levy, and the plaintiff might have judgment notwithstanding the levy was dismissed. Lockett v. De Neufville, 55 Ga. 458; Perry v. Mulligan, 58 Ga. 479; Hodnett v. Stone, 93 Ga. 645 (2), 20 S. E. 43.

We think that upon the merits of the case the evidence demanded a verdict for the plaintiff. The defendant ordered a shipment of furniture from the plaintiff to be sent to him at Siloam, Ga., from High Point, N. C. It appears beyond controversy that the furniture was delivered in good order to the railroad company at High Point, and that it was damaged in transit by water leaking on it through a defect in the roof of the car. Indeed, one of the defendants, testifying as a witness, conceded: “I ordered all Ihe furniture to be shipped in one car, and to come by railroad in the customary way. It was 'so shipped in the way I expected it to be." Counsel for tbe plaintiff in error concedes that ordinarily in such sales delivery to the carrier is delivery to the purchaser, but contends that the rule is not applicable in this case, because the shipper took from the carrier a bill of lading which contained many material exceptions from its common-law liability, though the same was not signed by the shipper. It appears that the consignors took from the railway company its “standard bill of lading." It may be true that under the law of North Carolina it is not required, as in Georgia, that the shipper sign the contract of carriage in order to make its special terms effective; but we know of no common-law rule nor of any North Carolina statute which requires a carrier to issue any other than its standard bill of lading. However, an examination of the law in North Carolina as declared by its courts will show that in that State a carrier can not contract against its negligence. The rule there on that subject is as it is in this State. Nor is the stipulation in the bill of lading requiring the claim for damage to be filed within thirty days valid, under the laws of that State. Capehart v. Seaboard R. Co., 81 N. C. 438, 31 Am. Rep. 505. We think that delivery to the carrier may be ‘held as delivery to the purchaser, where the carrier’s standard bill of lading is accepted, in the absence of express direction from the purchaser requiring some other method of shipment, especially in the absence of any showing that the shipper had the power to compel the carrier, by whom it was mutually anticipated that the transportation was to be effected, to make any other form of-contract of carriage, or that the carrier customarily issued any other form of bill of lading.

Judgment affirmed.


source: Caselaw Access Project

author: Powell, J.

license: Public Domain

text:
    342.
    STORY v. BUTT.
    1. The Civil Code, §3092, relating to the right of a tenant for life to emblements,- is merely declaratory of the common law.
    2. The Civil Code, §3093, which entitles one who rents from the tenant for life to the land until the end of the year, upon his complying with his contract with the tenant for life, notwithstanding the latter dies during the year, is not of common-law origin, but is manifestly an adaptation, made by the compilers of our code, of the statute of 14 and 15 .Viet., e. 25.

      (а) Under this section a power is conferred upon the tenant for life to represent the whole estate to the extent of making a rent contract binding to the end of the year in which the death of such tenant for life may occur.
    (б) The correlative duty of the undertenant is to comply with his contract with the life-tenant; and if he does so, he is not accountable to the remainderman for any portion of the year’s rent, though the life-tenant die before the crops are sown.
    Distress warrant, from Marion superior court — Judge Little.’December 15, 1906.
    Argued May 13,
    Decided May 28, 1907.

      D. L. Parmer, for plaintiff in' error;

      W. B. Short, George P. Munro, contra.
   Powell, J.

Mrs. Eliza Story had a life-estate in certain lands; she rented them to the plaintiff in error, Jesse C. Story, for the year 1905, and took from him, for the rent, a negotiable promissory note; she died February 20, 1905, having previously transferred to another the rent note. Butt, the defendant in error, was the remainderman, or rather, by purchase, he succeeded to all the rights of a remainderman, and for the purposes of the case may be regarded as such. In the fall of 1905 Butt demanded payment of the , rents of Jesse Storjr, who refused, having paid them to the holder of his rent note. Butt sued out a distress warrant and Story defended. The ground had been plowed at Mrs. Story’s death, but the crop had not been planted. The trial court held, that although Jesse Story was, as undertenant of the life-tenant, entitled to possession of the lands until the end of the year, yet since the life-tenant had died prior to the sowing of the crops, the remainderman was entitled to the rent- for the year; and that Butt might maintain the distress warrant against Jesse Story, notwithstanding he had paid the rents to the holder of his rent note. Under the holding of the trial court there was a verdict in. favor of Butt; and Story brings error.

Section 3092 of our Civil Code, which declares, “If the life estate be terminated not by act of the tenant, he and his legal representatives shall be entitled to emblements, which are the profits of crops sowed by him during life, whether the plants be annual or perennial,” and §3093, which asserts, “If the tenant for life rents the land for the year, and dies, or the estate is otherwise terminated during the year, the tenant shall be entitled to the land •for the term of the year, upon complying with his contract with ihe tenant for life,” are not both of the same origin; the former is merely declaratory of the common law, the latter is statutory in mature, having become law in this State through the adoption of ihe first code, into which it was inserted by the codifiers as a new proposition. At common law, prior to the statute of 11 Geo. II, c. 19, if the life-tenant died before the rent daj1, his executor could mot recover from the undertenant the rent or any portion thereof; mor could any one else collect it; the undertenant went rent free, and all his interests in the land terminated, except a qualified Tight of ingress and egress for the protection of his emblements, the right to gather crops already sown; for even the undertenant’s Tights to this extent were respected. Note the statement of Blackstone as to this right: “A third incident to estates for life relates to the undertenants, or lessees. For they have the same, nay greater indulgencies than the lessors, the original tenants for life. The same; for the law of estovers and emblements with regard to the tenant for life is also law with regard to his undertenant, who represents him and stands in his place: and greater; for in those cases where tenant for life shall not have the emblements, because the estate determines by his own act, the exception shall mot reach his lessee, who is a third person.” Bl. Com. 123. The Tight to emblements merely relates to the privilege of gathering crops already sown; and the right to possess the premises is included therein only so far as such possession is necessarily incident to the gathering of such crops. There was no common-law privilege that the undertenant might possess the premises until the end of the year.

The uncertainty of the life-tenant’s estate, and consequently •of the undertenant’s dependent term, frequently made the under-tenant’s condition a precarious one; it also made his lease less valuable. Private ingenuity first found a means to avoid the hiardship; so that it became customary for the grantor of a life-estate to give the life-tenant the express power to make leases which should not terminate with the life-estate. Finally, in 1851, Parliament passed the statute of 14 and 15 Vict., c. 25, “That where the lease or tenancy of any farm or lands held by a tenant .at rackrent shall determine by the death or cesser of the estate of any landlord entitled for his life, or for any other uncertain interest, instead of claims to emblements, the tenant shall continue to hold and occupy such farm or lands until the expiration of the then current year of his tenancy, and shall then quit, upon the terms of his lease or holding, in the same manner as if such lease or tenancy were then determined by effluxion of time or other lawful means during the continuance of his landlord’s estate; and the succeeding landlord or owner shall be entitled to recover and receive of the tenant, in the same manner as his predecessor or such tenant’s lessor could have done if he had been living or had continued the landlord or lessor, a fair proportion of the rent for the period which may have elapsed from the day of the death or cesser of the estate of such predecessor or lessor to the time of the tenant so quitting, and the succeeding landlord or owner and the tenant respectively shall, as between themselves and as against each other, b.e entitled to all the benefits and advantages, and be subject to the terms, conditions, and restrictions to which the preceding landlord or lessor and such tenant respectively would have been entitled and subject in case the lease or tenancy had determined in manner aforesaid at the expiration of such current year.” This statute, of course, did not come to us as a part of the laws of England which this State had previously adopted; but its existence and beneficial purposes must have been known to the great lawyers who, ten years after its passage, undertook the compilation of our code; for in that code the spirit of this statute appears in the following language (§2238) : “If a tenant for life hires out a slave, or rents the land for a year, and dies, or the estate is otherwise terminated during the year, the hirer shall be entitled to the slave and the tenant to the land, for the term of the year, upon complying with his contract with the tenant for life.” The very words of this section, especially so much thereof as relates to the hiring of slaves, indicates a local and statutory origin. The hand of war wiped from the statute the provision as to slaves, but the remainder of if stands as our present §3093 of the Civil Code. Both the'statute of Victoria and our code section make the tenant for life the representative of the entire estate for the purposes of leasing it to the end of the year; 'the law thus confers the power which formerly a special grant was necessary to create. So that now, when the undertenant secures his rent contract for the year from the life-tenant, his estate and right of possession is not dependent solely upon the estate of the life-tenant but is also supported by the life-tenant’s power as the representative of the whole estate. His correlative statutory obligation is compliance with “his contract with the life-tenant.” If his contract with the life-tenant binds him to pay the rent in advance, and he pays it, he has made compliance and can not be required to pay again; or if the life-tenant exact a. negotiable promissory note, payment of that note to the legal holder thereof is all that can be required of him. The law having ■ made the life-tenant the agent of the remainderman as well as of himself to make the contract of tenancy for the year, the remainderman must stand or fall by the terms of that contract. The-question whether under the statute of 11 Geo. II, c. 19, or any other law, or principle of equity, the remainderman can recover from the estate of the life-tenant all or any portion of the year’s rent is not now before us for consideration. We hold — and in this case we can not properly decide more as to the resulting rights of" parties — that Jesse Story, having complied with his contract with the life-tenant, was entitled to the possession of the premises to the end of the year, and that he was not additionally liable to the remainderman for the rent. The Supreme Court of Alabama seems to have reached a similar conclusion in the case of Terrell v. Reeves, 103 Ala. 265, 16 So. 55, where it is held: “Where one takes possession of leased lands under a deed from the life-tenant, who, prior to said convej'unce, "had assigned the rent note for the then current year to a third person, to whom the lessee paid the rent, upon the death of the life-tenant in the same year, such grantee is not liable to the remainderman for the rent of said land during the year in which the said deed was executed.”

Those having occasion to pursue the common-law phases of this question further may profitably examine the following cases: Ex parte Smythe, 1 Swan, 337, and cases cited in the footnotes; Hawkins v. Kelly, 8 Ves. Jr. 308, and cit.; Pagett v. Gee, 9 Mod: 482; Bockingham v. Penrice, 1 P. Wms. 177; Jenner v. Morgan, 1 P. Wms. 392; Clun’s Case, 10 Ves. 127; Duppa v. Mayo, 1 Saund. 282, and cit.; Plymouth v. Throgmorton, Salk. 65; Price v. Pickett, 21 Ala. 741; Marshall v. Mosely, 21 N. Y. 280. Judgment reversed.


author: Hill, C. J.

text:
    432.
    WHITFIELD v. THE STATE.
    1. Where the State relied upon positive testimony as proof of the criminal act, and the defendant relied upon negative testimony to disprove such criminal act, it was error for the, court to charge, without qualification, the rule for determining the relative value of positive and negative testimony, as contained in the Renal Code, §985. In connection with the rule for weighing the testimony, as embodied in this section, the court should also have instructed the jury to consider and pass upon the credibility of the witnesses.

      2. While it is not necessary that the person prosecuted for the act of selling should own the liquor, yet the question of ownership is one of the elements which the jury may look to in determining who made the sale. And in a prosecution for the unlawful sale of liquor, where the defense was that the defendant neither owned nor sold the liquor, it was error to instruct the jury that the title of the liquor alleged to have been sold was not a matter for them to consider.
    3. A minor error in the exclusion of testimony appears.
    Accusation of selling liquor, from city court of Monticello— Judge Clements presiding. March 12, 1907.
    Submitted May 27,
    Decided May 28, 1907.

      Greene F. Johnson, for plaintiff in error.

      Doyle Campbell, solicitor, contra.
   Hill, C. J.

The defendant was indicted and convicted for selling without license spirituous, ■ alcoholic, malt, and intoxicating liquors in Jasper county. The testimony against him was given by one witness, who swore that he bought four bottles of beer from him, paying therefor fifty, cents, the beer being in the house where the defendant and several other negroes were drinking whiskey and beer. The witness testified that the defendant told him at the time he sold him the four bottles of beer that it did not belong to him, but belonged to one John Glover. The defendant introduced two witnesses, who testified, that they were present in the house at the same time with the witness for the State, and saw him get the four bottles of beer from the defendant, and heard him tell the witness for the State that the beer did not belong to him, but to one John Glover; that the beer was in a box which was marked “John Glover.” Both these witnesses swore that if the witness for the State paid the defendant any money for the beer, they did not see him do so, and they were present all the time. They also stated that they got some beer from the defendant, on the same occasion, but paid the defendant no money. The defendant further offered to prove by these two witnesses that they paid John Glover for the beer which they got from the defendant; but this testimony was excluded hv the court. This was all the evidence in the case. The defendant stated that the beer did not belong to him, but that he had been asked to carry it to the house by the owner, John Glover, and that he did not sell any of the beer to the witness for the State, or to any one else, but that this witness and his witnesses took some bottles of beer out of the house.

The judge, in his charge, gave without qualification the rule embodied in the Penal Code, §985, as to the relative value of positive and negative testimony. While the facts presented a typical case for the application of this rule, the judge erred in not also giving, in connection therewith, the qualification that the jury, in weighing such testimony, should also consider and pass upon the question of the credibility of the witnesses. It has been repeatedly held by the Supreme Court, and by this court in the three recent cases of Wood v. State, 1 Ga. App. 684, 58 S. E. 271; Phillips v. State and Thomas v. State, Id. 687, 57 S. E. 1079, that section 985 of the Penal Code should never be given in charge to the jury except with the qualification above stated. “In weighing evidence, its character as to being positive or negative is one element for consideration, but it is not the only one. Credibility is also essentially involved.” Warrick v. State, 125 Ga. 142, 53 S. E. 1031.

Error is also assigned on the following charge by the court: “I charge you that the question of the title of the beer alleged to have been sold is not a matter for you to consider.” Of course the defendant was guilty if he sold the beer, whether it belonged to him or to some one else. But he contended, and introduced evidence in support of his contention, that the beer did not belong to him, and that he did not sell it at all. And the 'question of ownership might have been considered by the jury as a fact corroborating the defendant’s statement and supporting his contention. It would not have been error for the court to instruct the jury that if they believed that the defendant sold the beer, or assisted in selling it, the question of ownership was immaterial; but we think the court went too far in charging, under the facts of this case, that the question of ownership was not a matter for them to consider at all.

We think the court erred in excluding the testimony of the "two witnesses to the effect that each got beer at the same time and place that the witness for the State got his beer, hut that they • did not pay the defendant therefor, but did pay one John Glover. While the purchase of the beer by these two witnesses, and their payment for the same to John Glover, were, in a sense, a separate transaction from the one for which the defendant was tried, j-et it did in some degree tend to establish the contention of the defendant that the beer did not belong to him and that he was not .■selling it. The fact that these two witnesses got the beer at the same time and place as did the witness for the State, and did pay therefor the party whom the defendant claimed was the owner, was of probative value as corroborating his contention. The other .assignments of error we think are without merit. But, for .the reasons stated, we think the court erred in refusing to grant the ■ defendant a new trial. Judgment reversed,.


author: Russell, J.

text:
    480.
    GAINER v. THE STATE.
    Accusation of vagrancy, from city court of Douglas — Judge .Eoan. May 3, 1907.
    Submitted May 27,
    Decided May 28, 1907.

      Rogers & Heath, F. Willis Dart, for plaintiff in error.

      M, D. Dickerson, solicitor, contra.
   Russell, J.

1. The fact that a party is black and ragged, and asleep at night, and has not worked for four days, although he may have no money, will not of itself authorize a conviction for vagrancy.

. 2. Where a person has been arrested without a warrant, evidence, obtained by unlawful search and seizure, that such person has no money, should be rejected.

■ ■3. The evidence did not authorize the conviction, which consequently was contrary to ‘law. Judgment reversed.


text:
    42.
    VIRGINIA BRIDGE & IRON COMPANY v. CRAFTS.
    ,1. In no trial should the scope of the court’s instructions to the jury be more limited or more extensive than the range of the relevant evidence properly submitted therein. The charge of the court should be pertinent and applicable to the issues presented by the evidence, and it is error to charge the jury upon a theory which is not sustained by evidence.
    2. Where one of tlie issues was whether there was no contract, or a certain definite contract, charges applicable to the nature of a contract which had not been shown to exist were properly refused.

      3. A contract will be construed as made for a legal, rather than for an illegal purpose; and the more especially when such contract is attacked by a party thereto who has been benefited thereby.
    4. “ Courts hold themselves bound to the observance of rules of extreme caution, when invoked to declare a transaction void on grounds of public policy; and prejudice to the public interest must clearly appear before a court will be warranted in pronouncing the transaction void on this account. It is not to be lightly inferred from facts and circumstances of doubtful import and meaning, or which may admit of different construction, one consistent with and the other opposed to unquestioned policy.” Smith v. DuBose, 78 Ga. 415, 3 S. E. 314,- 6 Am. St. Rep. 260.

      3. “Where the government offers contracts for public works to the lowest bidder, the public is deeply interested in free competition in the bidding; and as a general rule any agreements among contractors to suppress the bidding, and thereby to acquire the contract from tlie government at a higher figure than could otherwise be obtained if the competition was left untrammeled, are held to be illegal.” 15 Am. & Eng. Enc. Law (2d ed.), 953.
    <8. “‘A joint proposal, the result of honest co-operation, though it might prevent the rivalry of the parties, and thus lessen competition, is not an act forbidden by public policy. . . . The public may obtain at least the benefit of the joint responsibility and of the joint ability to do.the service.’” “In all contracts secured in such a manner, the •courts should never hesitate to protect parties in their agreements with •each other and compel them to comply with the terms thereof.” Hoffman v. McMullen, 83 Fed. 377, 28 C. C. A. 183, 45 L. R. A. 410. “Tlie rule rendering illegal contracts suppressing competition in the letting •of public constructions does not render illegal bona fide partnership .agreements for bidding for such contracts, or other bona fide arrangements between prospective bidders, whereby a bid for the entire contract is put in and the parties to the agreement are each to do a part of the work; the object of the parties not being- to suppress competition.” 15 Am. & Eng. Enc. Law (2d ed.), 953.
    7. The judgment refusing a new trial is not, for any reason assigned, erroneous.
    Complaint, from city court of Atlanta — Judge Reid. July 2, 1906.
    Argued January 16,
    Decided June 19, 1907.

      Dorsey, Brewster, Howell & Heyman, Francis L. Eyles, for plaintiff.

      Westmoreland Brothers, Hamilton Douglas, for defendant.
   Russell, J.

The Virginia Bridge and Iron Company brought-its action against George IT. Crafts in the city court of Atlanta to-recover a balance of $2,850.66 alleged to be due on an account for structural material furnished to the defendant, who was a contractor and builder of bridges. Defendant admitted the correctness of the account, but pleaded a counter-claim, b)r way of set-off” (averring that the plaintiff had no office or place of business, or assets, in Georgia), that the plaintiff “is indebted” to defendant in the sum of $3)836 for failure to comply with certain agreements made between plaintiff and defendant as to sharing in the work of building certain bridges in the Vicksburg National Military Park, in the State of Mississippi, let out under competitive bids by the United States government.

The defendant, in his extended answer, avers that in 1903 and 1904 both plaintiff and defendant were in the business of taking' contracts to build both substructure and superstructure of bridges; that plaintiff, in addition to being a contractor, was also a manufacturer of structural steel superstructures; that defendant made a special feature of building substructures, such as excavations, concrete bases, brick piers and walls, etc., commonly called the-“substructure;” that this fact was known to plaintiff, who often let-out the substructure work of bridges let to it by entire contract; that in January, 1903, when the United States called for bids-looking to the construction of certain bridges in the Military Park, negotiations were entered into between plaintiff and defendant that-they should so arrange their bids as that defendant should put in the only bid, with the understanding and agreement that plaintiff should have the steel work, or superstructure, and defendant the-other work, or substructure, on whatever contracts might be awarded by the United States government to defendant; that the bid so made by defendant was partly for the use and benefit of plaintiff and at prices for the respective portions agreed on by the parties before the bid was submitted; that on February 12, 1903, the contract to build three bridges was awarded to defendant, and he at once placed an order with plaintiff for the steel work, in accordance with their agreement, but subsequently (February 16,, 1903) the government, through its officers, decided to reject all the bids and call for new ones, and specified that the estimate of” cost for building both substructure and superstructure should be- made separately, in each bid, these second bids to be opened April 16, 1903, in Vicksburg.

It is further averred that on March 16, 1903, the president of the plaintiff company addressed a letter to defendant, sa}'ing, “If it is your desire to take the matter up along the lines we worked together before, . . we know of no special objection;” and asked what method of procedure defendant would advise; the meaning of said letter (defendant avers) being to arrange some plan by which plaintiff and defendant could co-operate in securing one or more of the dozen bridges to be let by the government, so that one could furnish the substructure and the other the superstructure. Defendant had extended negotiations with Vernon II. Smith, the representative of plaintiff, and submitted to Smith the figures and calculations which were the basis of the bids made by plaintiff at the second letting, and under which plaintiff, in his own name, finally obtained the contracts and erected three of the bridges let by the government. Defendant avers that on the night of April 15, 1903, before submitting bids next day, in Vicksburg, plaintiff and Smith met, had a long interview, examined plans, estimates, figures, and prints; that Smith made an agreement with defendant to take defendant’s estimates, submit a bid in plaintiff’s name, and that defendant should have the substructure work at the figures submitted, and plaintiff the superstructure of whatever contracts might be awarded to plaintiff. Defendant, being on the ground with all equipments and implements for work (having just finished some similar work), could do the work cheaper than other contractors, and this fact was a mutual inducement for plaintiff and defendant to work in concert ; and defendant then and there disclosed and turned over to the plaintiff’s said agent his estimates, prices, calculations of quotations, etc., to be used by plaintiff in preparing his bid. He says, further, that immediately on said contract being made with the Fnited States government by plaintiff to construct three bridges, known as Nos. 4, 5, and 8, in said park, defendant offered to perform his part of said contract, and demanded his right to do the substructure work at the price named for same in plaintiff’s ibid, all of which was denied and refused by plaintiff, who awarded the substructure to another contractor (Kubush) at a cheaper price, all to his injury and damage as aforesaid. To the defendant’s answer were attached tabulated statements showing how he would be entitled to damages, and for which he prays set-off, amounting to $3,85G, besides interest from October 1, 1903.

The jury found for the plaintiff $837.75, upon which judgment was entered. Plaintiff moved for new trial on the several grounds stated in the record. At the hearing of the motion the trial judge passed the following order: “Defendant having voluntarily written off the sum of $144.23 from the set-off found in his favor, leaving the amount due the plaintiff the sum of $981.98, the motion for new trial is hereby overruled and denied.”

In the voluminous record there is evidence for the defendant that the first letting, which was afterwards rejected by the government, took place as alleged; that afterwards, on the night of April 15, 1903, before the second letting next day, plaintiff’s agent, Vernon H. Smith, and the defendant met in the latter’s room at the hotel in Vicksburg to confer as to methods of submitting bids; that plaintiff’s agent said his principal was chiefly a manufacturer of steel structural work and did not care for foundation work, though it did not refuse it; that defendant had figures made out in detail on substructure, and Smith some detailed figures on superstructure; that Smith stated that he had compared certain figures he had from his company, on both substructure and superstructure work, with the plans of the engineer on substructure work, and did not consider them reliable; that, if defendant would show him his estimates on quantities and prices, he (Smith) would use those prices in bidding on the substructure, and, if he got any contract on any of the subwork of the bridges, he would turn the subwork over to the defendant. In bidding for the entire bridge Smith agreed to put his separate bid for the subwork 1 per cent, ■higher than the defendant’s bid, and the defendant was to put his price .for superstructure higher than the plaintiff’s. Both submitted bids. There was no agreement as to what should be done in the event defendant got the award for superstructure and substructure. If defendant got the award for superstructure, then he was to do it; and there was nothing said as to where he should get»the superstructure materials. “I was not presumed to get the superstructure work, as I was to bid above him.” Some time afterwards the defendant and Smith met in Atlanta, and for the first time the defendant learned that the plaintiff had given the contract to Eubush. When pressed for an explanation, he said that the bid had named 4 months as the time for completion of the work, and that he had to make the contract in such a time as that the substructure work must be done in %y2 months, and that he did not know that the defendant could do it in that time; that the other party had agreed to do it in 2y2 months, and he had given him the contract.

The plaintiff, in its testimony, through its representatives, denied that any such -agreement as defendant alleged ever took place in Vicksburg, and testified that the first agreement, governing the first bid, came to an end with the rejection by the government of the first letting; that the naked suggestion in the first letter of its president (Eobertson) to Crafts was a suggestion only, and no subsequent negotiations ever ripened it into a contract; that, after the bids had been formulated and submitted, Vernon Smith, agent of plaintiff, was informed by the government officer superintending construction that, if the time mentioned in plaintiff’s substructure work bid were shortened, he could recommend acceptance as to three bridges; that said officer told him that Eubush could do it in less time; that Smith immediately went to see Eubush, and was assured that the latter could do the substructure in 2y2 months; that he then shortened the time in his bid to correspond, and his bid was then recommended and finally closed by contract with the government. He (Smith) did not give the contract to Eubush at that time, but merely got a basis to rely on; had not closed with Eubush at time of meeting with Crafts at the latter’s house in Atlanta, but did afterwards; was willing at that time to give the work to Crafts, if the latter had proposed to do the work in the same time as Eubush, and had also lessened his calculation as to quantities. There was some agreement among the bridge builders and contractors in the line and intendment of allowing certain work to go to certain individuals without underbidding on the part of others. Defendant did not participate in this scheme. After the rejection of the first bids there was correspondence between Crafts and Smith about certain changes in tracings and estimates which Crafts wanted to use at the second letting. Smith erased the name of Virginia Bridge Company on blue prints, and substituted the name of George H. Crafts; this because, says Smith, “I took my tracings to our draftsman and notified him, at Crafts’ request, of certain changes to be made in them.” The parties differed in respect to the size and amount of steel joists, and perhaps in other respects.

The business Crafts had with the witness (Smith) when they met at the Vicksburg hotel was “to get the blue prints we had prepared for him.” In turning over these plans to Crafts, he was simply carrnng out the agreement of the previous letting. In case this was arranged, he (Crafts) was to use these plans in the bidding; and, in case it was so agreed, Crafts was to have this work as at previous bidding, with the understanding that he was to give “us.” the steel work for the superstructure at a pound price. The pound price was not fixed by witness and Crafts that evening. It remained the same as at former letting. Smith looked at Crafts' estimates and adopted his unit of prices. His estimates did not check relatively with Smith’s. The greater variance was as to bridge 5, in which-there was decided difference. Witness told Crafts that he would place plaintiff’s bid on substructure above Crafts’, so that, in event the work was let separately, it would go to him. Witness said nothing in regard to what was to be done as to Crafts getting subwork in the event the government did not let bids separately and plaintiff got awards. “I had no contract with Crafts at all with reference to his getting the substructure at the price I bid to the government for it, in the event I was successful, in my bid.” It was not agreed that witness was to get any interest out of Crafts’ bid, or “he out of mine,” in the event Smith put in a bid. Crafts -bid at the second letting, and did not use plans of the Virginia Bridge & Iron Company. Smith, for plaintiff, hid at the second letting. Crafts did not give Smith anything definite as to the time he could “do this work,” except what was contained in his hid to the government. Plaintiff got the letter that Crafts wrote, after contract with Rubush, about May, agreeing to do the work in 2% months. He refused to make that bid in Atlanta at time spoken of. The president of the plaintiff company, C. E. Michael, testified that Crafts bought other orders for bridges and paid 'for them without making demand -or claim on account of the Vicksburg affair. As he paid for those, the plaintiff sold him still another order, the one now sued for. It also appeared in testimony that the Virginia Bridge & Iron Company and George II. Crafts were competitive bidders for the work on the bridges in controversy.

After a careful examination of the very voluminous record in thN case, we are unable to find any reason for reversing the judgment of the trial court in refusing a new trial. Omitting the general grounds of the motion, we come to consider the grounds contained in the amendment thereto. The plaintiff in error insists that the court should not have charged the jury that the contract set up m defendant’s plea, if proved, was a legal, enforceable contract, with sufficient consideration to support it, for the reason that the evidence did not authorize the charge, and that the evidence, if it showed anything, proved an agreement in restraint of trade and in violation of the laws relating to fair competition, and was unilateral, not mutual, and because there was no authority in the plaintiff to transfer the contract or any part thereof to any other person. We see nothing in the evidence offered by the defendant showing that the agreement was illegal or contrary to public policy. The plaintiff denied any agreement at all. The defendant’s testimony only proved that, without any intention, to defraud or overreach the government, the plaintiff, who did not desire the substructure work, agreed, in consideration of the use of the defendant’s carefully prepared estimates on the substructure, to allow the defendant to do that portion of the work under any contract the plaintiff might receive. The contract was not unilateral, because the plaintiff the agreement was really made) could have compelled the defendant to do the substructure work though at a loss; and the contract, as appears in the record, forbids the transfer of the contract or any interest therein, and does not forbid the contractor from having any portion of the work done by any other person, as, for instance, by subcontract.

The next insistence of the plaintiff in error is that the court erred in submitting to the jury the question as to whether the defendant was damaged. We think, from what has been already stated, that the jury were authorized to find that a legal agreement was entered into by which Crafts was entitled to do the sub-structural work on any bridges contracted for in the Vicksburg Military Park; and if the evidence satisfied the jury that a profit would have resulted to Crafts by reason of that agreement, and of compliance therewith by the plaintiff company, the defendant was entitled, as damages, to any profits which would thus have accrued to him. For this reason we think there is no merit in the seventh, eighth, and ninth grounds of the motion for new trial. ■

In the tenth ground of the motion it is insisted that the court erred in not charging the jury upon a material issue in the case, to wit: It is contended by plaintiff that, if there was a valid contract giving the defendant the substructural work of bridges 4, 5, and 8, it was based upon estimates as to the actual cost of the construction of said substructures submitted by defendant to plaintiff, and claimed by the defendant to be accurate, and upon a certain percentage added by defendant as his profit for doing the work; and plaintiff contends that it offered to let defendant do this work, provided he would do it on the percentage of profit specified by him at the time the agreement was entered into, and that the defendant refused to accept this offer of plaintiff. The plaintiff insists that the court erred in not instructing the jury that if they found that the plaintiff offered to let the defendant do the work for this certain percentage of profit, .and the defendant refused to accept this proposition, the plaintiff would. be relieved from liability. There is no merit in this ground of the motion, for the reason that the instructions of the court must be predicated upon evidence, and there was no evidence to authorize such a charge. In its last analysis the issue was clear-cut between the plaintiff and the defendant; the plaintiff insisting that there was no contract at all by which it was bound to let the defendant have the substructural work, and the defendant insisting that in consideration of having prepared proper estimates for the plaintiff, which estimates were of advantage to the plaintiff in securing the contract for superstructure, he was entitled to erect .the substructure and receive whatever profits might accrue from the bid thus submitted by the plaintiff in reality as his agent. There was no evidence from any source that there was any agreement that the defendant should only receive a certain per cent, of profit on the actual cost, and therefore it was immaterial that the plaintiff offered to let defendant do the work upon that basis.

The request to charge, which the court refused, and which is embodied in the eleventh ground of the motion, is as follows: “I charge you, if you believe from the evidence that an arrangement was made by which the bids of the plaintiff for substructure, if successful, were to be turned over to defendant, that such an arrangement was not binding on tbe plaintiff, because, under the contract entered into between the government and plaintiff, such agreement was impossible of performance.” We think this request was properly refused. An examination of the contract shows that there is nothing in its terms which prevents the contractor from procuring any portion of the work to be done by ofhers. It is merely the manifest purpose of the United States government to recognize no one, in so far as its liability is concerned, except the original contractor, and to hold such contractor solely liable for any breach or non-performance. This, too, without question, is the construction placed upon it by the government; for the evidence in this very case discloses the fact that the plaintiff, upon the suggestion, of the agent of the government who signed the contract in its behalf, procured one Kuhush to erect the very substructures which the defendant claimed the right to build. The same complaint substantially is made in the twelfth ground of the motion for new' trial, and, for the reasons j.ust stated, is without merit.

In the thirteenth ground of the motion the plaintiff contends that the court should have submitted to the jury the contention that the reduction of the time, in its bid, from 4% months to 2%-months, was the making of a new contract, and that, even if th© agreement between plaintiff and defendant had been a legal and! valid one, the new agreement was not binding on defendant, and! defendant had no interest therein. The court properly refused plaintiff’s request upon this subject. If the defendant had any agreement with the plaintiff, it was that he was to do the substructure work under any contracts made by the plaintiff with the government for bridges in the Vicksburg Military Park — not on any bids made by the plaintiff. The bids might never materialize into a contract, and the defendant testified that the agreement reached to the contract. When the chairman of the government commission declined to accept the plaintiff’s bid unless the time was reduced to 2y2 months, it was the duty of the plaintiff to inform the defendant of the change; and this the plaintiff did. Good faith required this. As no contract had yet been entered into, the defendant might then either decline to undertake the labor in the lessened time or accept the modification of the proposal. In this -case the defendant, by his letter of April 28, 1903, offered to do the work in the 2% months; and the contract was not entered into until May 11, 1903. This testimony is undisputed. There would be point in the plaintiff’s request to charge, if the evidence had shown that defendant was only to receive the substructure under certain bids, instead of the substructural work of such bridges rs the plaintiff might get to build, or if he had delayed in notifjdng the plaintiff that he was still ready to do the work in conjunction with the plaintiff, according to their agreement, regardless of the reduction of time to 2% months.

After a very painstaking review of the evidence, we are unable to sustain the plaintiff’s contention that the amount of damages awarded as a set-off to the defendant is excessive. We have expended much labor and time in the consideration of the tremen clous record in this case, only to find, after several successive read • ings of the evidence, a plain conflict in the testimony, which it was ihe duty of the jury to settle. The charge of the court, when com ¡sidered in connection with the evidence, is a clear and forcible presentation of the law applicable to the case, and is free from, error of any kind. Judgment affirmed.


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    85.
    WILLIAMS v. FAIN & STAMPS.
    In a justice’s court a suit upon an unconditional contract in writing may be tried at tbe first term, although a plea be filed, if the plaintiff h" present and willing to proceed to trial. Even at the first term the defendant can not continue the case as a matter of right.
    Certiorari, from Wilkes superior court — Judge Holden. May 10, 3 900.
    Submitted February 31,
    Decided June 19, 1907.

      I. T. Irvin, Jr., for plaintiff in error. J. M. Vitner, contra.
   Powell, J.

This decision is conversant merely about the meaning of one word — the word “consenting.” The plaintiff sued in a justice’s court upon an unconditional contract in writing. The defendant’s counsel appeared at the first term and filed what amounted to a pica of the general issue. The plaintiff insisted ■¡upon an immediate trial of the case, and the court, over objection of defendant’s counsel, allowed him to proceed. He obtained a judgment, and the defendant sought by certiorari to set the same aside, on the ground that under the law the case was not triable, over his objection, at the first term. The judge of the superior, court overruled the certiorari, and error is assigned to that ruling.

Civil Code, §§4133-4135, governing the practice in such cases, .are as follows:

“§4133.' All cases before a justice of the peace stand for trial .at the time and place designated in the summons, and shall be then and there tried, unless continued according to law.
“§4134. Whenever the defendant in the justices’ courts on an ■unconditional contract in writing makes defense, he shall make .such defense at the first term.
“§4135. When such defense is thus made, the cause shall stand for trial at the next term (subject, however, to continuance as provided by law) : Provided, that said cause may be tried at the term when said plea is filed, if the plaintiff or his attorney is present consenting thereto.”

The original plaintiff says that he was present and consenting to a trial at the first term, and that the ease is within the proviso of section 4135. The defendant says, the word “consenting,” ex-vi termini, connotes the concurrence of another volition with that of the plaintiff; that the plaintiff’s willingness to try at the first term is not sufficient, but that there must be also, on the defendant’s part, a willingness to try, before consent can exist; that one person can not consent until there is another willing person to consent with. It is insisted that the individual action of a single mind may be called “assent,” but not “consent.” To this proposition the majority of this court can not assent, whether we view it from a philological or from a judicial standpoint. The synonymic discrimination between the words “assent” and “consent” is not based on the distinction between single and joint volition; but, according to the authority of the Standard Dictionary, Webster’s International Dictionary, and Crabb’s English Synonyms, “assent respects the judgment, consent respects the will.” The word “consent,” as is true with most of our English words, has many shades of meaning; and it is frequently used to express the notion of “a voluntary accordance with or concurrence in what is done or proposed by another.” From an etymological standpoint the prefix “eon” does imply joint action; but in the interpretation of statutes we look to the ordinary, not the etymological, signification of words. Loosely, the word “consent” is used interchangeably with the words “assent,” “acquiescence,” “concurrence,” “agreement,” “approval,” and “permission.” However, best usage always distinguishes it from “assent” and kindred words, according to the shade of meaning just pointed out: “consent” connoting individual volition, and “assent” individual judgment. As an act of judgment we may assent to the necessity of a surgical operation, but from lack of fortitude may not have the will power to consent to it. Thus, Shakespeare makes the poor apothecary, whom Romeo tempts with money in order to induce him to furnish the poison for the contemplated suicide, repty, “Poverty, but not my will, consents.” This same writer also, in the opening verses of Henry VI., in lamenting the death of the former Henry, uses the word “consent” to express the idea of individual volition, when he calls upon the comets to scourge “the bad revolting stars, that have consented into Henrjr’s death.” The power of the colonial legislature to permit or to refuse — its unilateral volition — is implied by the use of this word as it appears in the excerpt from the Declaration of Independence: “He has kept among ns, in times of peace, standing armies, without the consent of our legislature.” In the Biblical usage of the word the same idea of the action of the individual will, as distinguished from judgment, is preserved. The murderers of Stephen laid down their clothes at the feet of a young man named Saul (Paul); and, though he took no part with them, his wish and will in the matter is expressed by the words, “And Saul was consenting unto his death.” Acts, viii, 1. Certainly there is no intention to intimate that there was an agreement among the guests who were invited to the marriage feast, and yet it is said of them, “All, with one consent, began to make excuse.” Luke, xiv, 18. Note the use of the word “one” ’to complete the' sense in this quotation. The last phrase of Rom. i, 3, which, according to the translation of 1611, reads, “Who knowing the judgment of God, that they which practice such things are worthy of' death, not only do the same, but have pleasure in them that do them,” is rendered in the revised version of 1881, “but also consent with them that practice them,” and thus “'have pleasure in” and “consent with” are recognized as interchangeable terms. Compare with this last extract Ps. L. 18, “When thou sawest a thief, then thou consentedst with him.” To express the individual action of his spiritual volition Paul says (Rom. vii, 16) : “If, then, I do that which I would, I consent unto the law that is good.” The king of England is always said to assent, not to consent to an act of Parliament; for theoretically he has no personal will or choice, and merely expresses his judgment as to Avhether the law is for the people’s good.

When we come to the law we find this shade of meaning still preserved, though not always so closely as in literature, where linguistic precision receives more care. For example, the expression “age of consent” stands in close legal relation to the phrase-“against her will.” In that topic of criminal law in which these-expressions are most familiar, the volition, not the judgment, of the-female, is considered. Her judgment may oppose the act; and yet-if, as in the case of the fair young woman of Byron’s poem, who, “swearing she would ne’er consent, consented,” her will does not oppose, the crime is not complete. When we desire to express-the meeting of the minds of the parties to a contract, it is not customary to use the word “consent” alone; but, to insure greater-precision, we say “mutuality of consent,” or “mutuality of assent” - — -the former being the mere accurate expression. If it had -been intended by the Civil Code, §4135, to make such eases triable at the first term only when both parties are willing, some such expression as “mutual consent,” or “consent of the parties,” would have been used. Compare sections 5126 and 4848. The manifest legislative intent is to give to the plaintiff the right to exercise his. own volition as to whether the trial shall be had at the first-term or the second, subject, of course, to the right of the’ defendant to continue for cause. This gives to the plaintiff no undue advantage. It merely protects him against the legal surprise-which may arise from the filing of the plea, and affords him the-time, if he needs it, to make preparation to meet the matters set up in defense. The defendant has already had 10 days’ notice of the plain-tiff’s demand, and is, therefore, ordinarily expected to be ready for trial at the first term. If the plaintiff is also ready, there is no need for further delay. The. law may justly extend, to the plaintiff, if he wishes it, further time to meet a plea just filed, without affording the defendant further delay when he is or should be ready for trial. Of course, if the defendant is not ready, and can make a proper showing for a continuance, the magistrate; may grant it. Judgment affirmed.

Russell, J., dissents.


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    204.
    RUCKER v. THE STATE.
    1. A verdict of guilty, dependent upon an uncorroborated confession, should be set aside upon motion for new trial.
    2. While, in the absence of a request to charge upon that subject, a trial court is not generally required to instruct the.jury upon the subject of confessions, or as to their force and effect, still, where the case of the Rtate is entirely dependent upon a confession in order to authorize a conviction, the jury should be given appropriate instructions with reference to the care with which such confessions should be considered, and they should be informed that a conviction is not authorized unless such confession be corroborated.
    Indictment for enticing servant, from Hart superior court — Judge Holden. December 10, 1906.
    Submitted February 18,
    Decided June 19, 1907.

      A. G. & Julian McCurry, for plaintiff in error.

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

The defendant, Wylie Rucker, was convicted of the offense of a misdemeanor, under the Penal Code, §122. It is alleged in the indictment that the defendant enticed, persuaded, and decoyed one George Smith, who was under a verbal contract as a farm laborer, to leave his employer, after he had actually entered the service of such employer, by offering to pay said Smith higher wages. The evidence on behalf of the State showed that George Smith was under a verbal contract, made about the 10th of May, 1904, by which he was to work for the prosecutor until Christmas, for $7 a month and his board. He worked a little over two months with his employer, and then went to work with the defendant. The prosecutor further testified that the defendant confessed to him that-he had employed said George Smith, and was to give him $8.50 or $9 a month, and that he knew that the servant had actually entered the prosecutor’s service and had worked over two months. It further appeared, from the evidence, that George Smith, the employee, wanted to “knock around a while,” and that the prosecutor agreed to let him rest from the time they got done laying by. Under this agreement he worked with the defendant, or with his father, from the latter part of July until some time in August, and “after the vacation he came back and worked for [the prosecutor] about two weeks.” The evidence for the defendant, which was uncontradicted, showed that George Smith was a minor, whose mother was living. It also appeared that the defendant made a contract with his mother for the hire of the boy, and that nothing was done to induce the boy to work with the defendant, and that he did not work with him after the defendant was informed that the boy was under contract with the prosecutor. The defendant insisted that he only boarded the boy, George Smith, for the month during laying-by time, during which his employer had given him leave of absence, and that the agreement was that he was to work for the defendant for his board.

We think the court erred in not granting the defendant a new-trial. The motion for new trial was based upon the general grounds; and, in addition, it is averred that the court 'erred m failing to charge the jury, although not requested so to do, that “all admissions should be scanned with care and confessions of guilt should be received with great caution. A confession alone, uncorloborated by other evidence, wall not justify a conviction.” The movant also insisted that the court erred in failing to charge the jury the rule of lawr with reference to circumstantial evidence, to wit, that to warrant conviction on such evidence the proved facts must exclude every other reasonable-hypothesis save that of guilt, of the accused. The conviction in this case must depend entirely upon the evidence of the prosecutor that the defendant admitted to him that he persuaded the servant, George Smith, to wnrk with him and leave his employer, by offering the boy higher wages. Without this evidence the State would have no case whatever, and the essential fact contained in this statement is the very gist of the whole criminal action. Generally the court is not required to charge the jury upon the subject of confessions at all, in the absence of a written request for instructions upon that subject; but there is a distinction between a case in which the conviction may depend upon a confession or upon other evidence, and a case in which conviction, if had, must depend upon the confession alone, as in this case. In cases of the former class the confession is always more or less corroborated by the other evidence in the case. In this case there was no corroboration; and, for that reason, although the testimony as to the confession be true, it can not support a. conviction. If the State had proved that George Smith and the prosecutor made the contract alleged in the indictment, and that Smith entered into such service and left before its completion, the State would have had no case whatever against this defendant; for it would have failed absolutely to show that he enticed, persuaded, ■or decoyed George Smith away from such employment. As before remarked, the knowingly enticing, persuading, and decoying of the farm laborer or other servant of another constitutes the whole offense, and therefore the statement made by the' defendant to the prosecutor was not a mere inculpatory admission, but a confession, and we think, therefore, that the jury should have been charged that confessions of guilt should be received with great caution and that a confession uncorroborated will not justify a convic-. tion. “The case, at best, is close and doubtful, and it is by no means clear that the evidence warranted a conviction. It was therefore essential to the fairness of the trial that the jury should have distinctly understood that they could not lawfully convict upon a confession alone, and that it was incumbent upon them to pass on and determine the all-important question whether or not tlfe confession, if proved to their satisfaction, was corroborated by other evidence, which in connection with the confession itself was sufficiently strong and convincing to satisfy their minds beyond a reasonable doubt of the guilt of the accused.” The confession is not corroborated in this case by the corpus delicti, for the entire criminal act depends upon the confession.

We are further of the opinion that a new trial should have been granted for the reason that the evidence is insufficient to authorize conviction. Taking the confession, as proved, to be sufficiently corroborated, it nowhere appears that the defendant knew, at the time that George Smith came to his house, or at the time that he employed him, that he was under contract with the prosecutor. 'The most that was proved by the prosecutor upon that subject was that the defendant knew that the laborer had actually entered his service and had worked over two months. This, the prosecutor ¡says, the defendant told him he knew; and the only evidence that the boy, George Smith, was ever at the defendant’s house after the conversation between the prosecutor and the defendant, comes from the prosecutor, as being a statement made to him by a person ■ other than the defendant. This was, of course, inadmissible against the defendant, unless the evidence had shown that the defendant was present and by his silence acquiesced in the statement made. Nothing is more vexatious, abominable, or injurious than the interference of outsiders with the servants or laborers with whom another has contracted and upon the faith of whose contract he relies to honestly fulfill his own obligation; and the laws against these violators of the public peace and comfort should be enforced. But it must be borne in mind that in this class of cases, as in every other criminal charge, the State is required to prove the guilt of the accused. And to sustain a conviction in this case this court would have to shut its eyes to the fact‘that it was proved, and not contradicted, that the boy, George Smith, had a mo.ther living, and that the State produced no evidence to show how he was able to make a legal contract, and further failed to show that the defendant knew that a legal contract had been made.

It is indispensable to show, in accusations brought under the Penal Code, §122, that there was a legal contract and that the defendant knew it. Both of these essentials the State failed to establish. The evidence in this case is very similar to that in McAllister v. State, 122 Ga. 744, 50 S. E. 921. It is not enough to show that a defendant employed a servant who had already quit the service of his employer or had been temporarily released from such service; even though it be shown that the defendant employed such a servant by a promise of higher wages. If the servant has already left his employer, or if there was no legal contract with the former employer, he who employs such servant does not violate section 122 of the Penal Code. In the McAllister case, above cited, the defendant sent his wagons and helped the servant, Jackson, to move his household goods, over the protest and threats of the employer. And yet the Supreme Court in that case says: “The words used in the statute, entice, persuade, or decoy/ indicate that there must be some word or act of incitment or inducement on thei part of the defendant, whereby he influences the will of the serv- ■ ant so that the latter becomes dissatisfied with his employment and is allured away.' That.Jackson of his own volition quit the service ■ of his employer, and was then hired by the accused and by him .assisted in moving his household effects, is not enough to authorize .a conviction under the statute, unless it be shown that the servant ■was prompted to leave his employer by the accused. But it was .argued, if this is not sufficient, it will be impossible to convict any .one under this statute. That may be true, but the courts can not bend the construction of a statute in order to assist the State Í7 making out a case if the statute does not authorize such a construction. . . Penal statutes are to be construed strictly, and a sufficient answer to the argument ab inconvenienti is ita lexscripta est." Judgment reversed.


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    343.
    SMITH v. SHEPPARD.
    1. “ The husband can make a gift to his own wife, although she lives in the same house with- him, . as easily as he can make a present to his neighbor’s wife,” and when such gift is made in good faith, and consummated by delivery and acceptance, it can not thereafter be defeated by a sale made by the husband.
    ?. In a contest between the wife, as donee, and a subsequent purchaser from the husband, the burden is on the former to show the gift and its validity.
    O. Whether this burden was successfully carried in this case should have-been submitted to be determined by the jury, and the direction of a verdict for the defendant was erroneous.
    Trover, from city court of Blakely — Judge Jordan. October 16,. 1906.'
    Argued May 13,
    Decided June 19, 1907.

      W. I. Geer, Arnold & Arnold, J. B. Ridley, for plaintiff.

      Pottle & Glessner, for defendant.
   Hill, C. J.

In McNaught v. Anderson, 78 Ga. 503, 3 S. E. 668, 6 Am. St. R. 278, Chief Justice Bleckley declares, speaking for the court, that “the legal unity of husband and wife has, in Georgia, for most purposes been dissolved, and a legal duality established. A wife' is a wife, and not a husband, as she was formerly. Legislative chemistry has analyzed the conjugal unit, and it is no- longer treated as an element, but as a compound. A husband can make a gift to his own wife, although she lives in the house with him and attends to her household duties, as easily as he can make a present to his neighbor’s wife. This puts her on an equality with other ladies, and looks like progress.” Therefore-a husband can make a valid gift of a personal chattel, such as a horse, to his wife, although she may be living with him; and such a gift, when consummated by delivery to the wife and acceptance by her, will be upheld by the court, unless made with fraudulent intent. Civil Code, §3564.

When the husband makes a gift to the wife of a personal chattel, bona fide and without any fraudulent intent, and the gift is consummated by delivery and acceptance, he can not subsequently deprive the wife of such gift by a conveyance of the personal chattel to a third party. In a contest between the wife and a subsequent purchaser of such personal chattel from the husband, the presumption would be that the gift to the wife by the husband was made with intent to defraud the purchaser, and the burden would be upon the wife to show the bona fides of the gift. The provision of the statute of Elizabeth, as .codified in the Civil Code, §3530, that a’voluntary conveyance is void as against .subsequent bona fide' purchasers for a valuable consideration, without notice, is not a general rule of law without an exception. The exception to this general rule is where the evidence rebuts the presumption of fraud against the gift and clearly establishes its bona fides. We think this exception is clearly pointed out in the case of Howard v. Snelling, 32 Ga. 195, and in the case of Cathcart v. Robinson, 5 Pet. 279, 8 L. ed. 120. This must be the law, else there would “be presented an irreconcilable conflict between section 3561 of the Civil Code, which defines a valid gift, and section 3530, as to the rights of bona fide purchasers against voluntary conveyances. The law’s purpose is to prevent a fraud by the donor upon the donee in the subsequent sale, as well as to prevent a fraud upon the purchaser by the previous gift. There was conflict in the evidence in this case as to the making of the gift by the husband to the wife and its consummation. There was no evidence that, if the gift was made and consummated, there was any fraudulent intent on the part of the husband as against the subsequent purchaser. The gift, if made, was consummated, according to the evidence of the plaintiff, two years prior to the sale of the horse by the husband to the purchaser. In the language of Mr. Justice Jenkins, in Howard v. Snelling, supra, this was “a very long incubation of a fraudulent intent.” Whether the gift was made, and its consummation and bona fides, under the evidence in this case, should have been submitted to the jury to be determined by them. The direction. of the verdict for the defendant was error.

Judgment reversed.

Powell, J., disqualified.


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    437.
    DENNEY v. THE STATE.
    The gist of tlie offense under the Penal Code, § 671, is the fraudulent sale or disposition of mortgaged personal property, and loss thereby sustained by the mortgagee. The statute requires proof of both elements of the offense. Loss, in its legal sense, was not shown, where the only evidence on the subject was the general statement by the prosecutor that he had lost “a good deal of valuable time, and had to employ a lawyer to foreclose the mortgage,” without stating the value of such time, or the amount paid or promised the lawyer for his services.
    Indictment for unlawful sale of mortgaged property, from Rabun superior court — Judge Kimsey. March 11, 1907.
    Submitted May 27,
    Decided June 19, 1907.
    W. S. Paris, for plaintiff in error.

      W. A. Charters, solicitor-general, contra.
   Hill, C. J.

The plaintiff in error was convicted, in the superior court of Babun county, of the wrongful sale of mortgaged property in violation of the Penal Code, §671. There was no» conflict in the evidence on the trial, and the following facts were shown: The prosecutor indorsed a note for the plaintiff in error for $150, to enable him to borrow this sum from one Hilliard York. To indemnify the prosecutor as surety on the note, the plaintiff in error executed a mortgage to him on two mules. The prosecutor testified: “I took the mortgage to indemnify me and save me harmless from loss in the event I had to pay the note we gave to York.” The plaintiff in error failed to pay the note at maturity, and York brought suit thereon, recovered a judgment against both principal and surety, and had an execution issued and levied on the property of the plaintiff in error, who was the maker of the note, and sold it, but the amount realized failed to satisfy the execution in full. Thereupon the prosecutor foreclosed his mortgage, and, the sheriff failing to find the mortgaged property, the prosecutor indicted the plaintiff in error. After the indictment had been returned by the grand jury, the plaintiff in error paid off the balance of the debt for which, the prosecutor was liable as surety.

The only evidence as to the prosecutor’s loss was the following statement made by him: “I suffered loss by the sale of the mortgaged property. I lost a good deal of valuable time, and I had to employ a lawyer to foreclose the mortgage.” The proof failed to show the value of the prosecutor’s time in dollars and cents, or that he paid a lawyer anything to foreclose the mortgage. It may be remarked,' as illustrating the question of intent, that the defendant told the prosecutor that he had sold the mules. TVe think that under this evidence the conviction of the defendant was wholly unsupported, and therefore contrary to law. The gist of the offense, under this section of the code, is the fraudulent sale or disposition of mortgaged personal property, and loss thereby sustained by the holder of the mortgage. In other words, there must be a fraudulent sale and consequent loss, before this offense exists. The first element of the offense might have been inferred in this case from the fact that the sheriff failed to find the property which had been mortgaged to indemnify the surety against loss; but the evidence utterly fails to show that the sale of the mortgaged property insulted in any loss to the surety. If the evidence shows that the prosecutor, as such surety, incurred any pecuniary loss in prosecuting his remedy against the mortgagor, or in protecting himself as such surety, this would be such loss as would be covered by the statute; but the general statement that the only loss incurred by him was that of his .valuable time, and the emplo)rment of a lawyer to foreclose the mortgage, where the proof fails to show definitely the pecuniary loss in some amount to the prosecutor, such general statement of loss is entirely too indefinite, vague, and uncertain to constitute proof of loss .as intended by this penal statute. Under the undisputed evidence, the mortgage in this case was given to the surety to indemnify and save him harmless from loss in the event he had .to pay the note upon which he was surety; and the evidence showed that this contingency never happened; for the entire debt was fully paid by the maker of the note, and the surety incurred no loss whatever in connection with his suretyship.

For the reasons above stated, we conclude that the court erred in not granting the defendant a new trial.

Judgment reversed.


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    448.
    SHERMAN v. THE STATE.
    1. Evidence obtained by illegal seizure and search of the defendant’s person, by which he is compelled to criminate himself, being inadmissible against a defendant accused of crime, the burden devolves upon the State to show that evidence obtained by search was procured after a legal arrest. Proof that the arrest was legal is not made by the statement of a witness that the arrest was made under a warrant. The conclusion of a witness that a given paper is a warrant under which an arrest may legally be made is not proper proof that such a paper is in fact a warrant by virtue of which a legal arrest1 has been made, so as to authorize the admission of evidence obtained by means of an arrest under such paper or alleged warrant.
    2. Where a juror, properly rejected by either party to a cause, serves without the knowledge or consent of such party and his counsel, and, unknown to such party or his counsel, participates in the finding and rendering of a verdict in the case, a new trial should be granted on the motion of such party.
    Accusation of carrying concealed weapon, from city court of Americus — Judge Crisp. April 13, 1907.
    Submitted May 27,
    Decided June 19, 1907.

      Howell B. Simmons, for plaintiff in error.

      Zach. Childers, solicitor, contra.
   Russell, J.

Ed Sherman was tried and found guilty of the offense of carrying concealed weapons. He moved for a new trial, and his motion was overruled. It is onty necessary to notice the amended grounds of the motion. These were two in number. In the first it is insisted that the court erred in refusing to exclude the testimony of the State’s witness, upon the ground that a legal arrest wa§ not shown, because it did not appear that the party arresting had a warrant against the defendant, and because it must appear that the arrest was legal, before the testimony would be admissible. The second ground was that, “only eleven of the jury selected to try the case served, and that in place, of W. A. Stephens, one of the jury selected to try the case, was put or voluntarily went in one W. H. Justice, a member of the ¡Danel of the jirrors that had been stricken.” With regard to the second ground of the motion, the presiding judge qualifies his approval by the following note: “Two jury lists were handed out and a jury stricken. The jury was called, and twelve jurors took their places in the jury box, after being duly sworn. The solicitor and defendant’s counsel both made their opening statements to -the jury. Evidence was then introduced, and at its conclusion the case was argued by the solicitor and the defendant’s counsel. The jury retired, and later the court was notified the jury had made a verdict. The court had the jury brought into the court-room, and the foreman reported the jury had made a verdict. The court instructed the solicitor to receive it, which was done, and the verdict read and published in open court. As soon as the verdict was read and published, Mr. Simmons came up to the bench and informed the court privately he thought one of the jurors who served had been stricken. The court informed Mr. Simmons he. knew nothing of the matter, but would have the jury called, which was done, and one of the jurors had been stricken. Mr. Simmons here in open court requested the court to declare a mistrial, which the court refused, saying the motion came too late, as the verdict had been rendered, received, and published in open court.” The ground of the motion with reference to the juror was verified by the affidavit of Mr. Simmons, defendant’s attorney, who swore that his client did not know any member of the jury, and that the jury was stricken by him in behalf of his client. He further ■swore that Justice was 'stricken by him, and would not, in any event, have been accepted by defendant, or by him as defendant’s counsel, in a case where the rights of a negro (defendant being a negro) were concerned. The affidavit of counsel further showed that the defendant and his counsel relied upon the officers to see that the jury selected served, for the reason that the defendant knew none of the jurors, and his counsel was not acquainted with all of those selected; further, that the defendants counsel is nearsighted, and did not have on his glasses, and did not notice that said Justice was on the jury until the jury hack made a verdict. The jury list used upon the'trial, a copy of which'is attache 1 to the record, shows that W. H. Justice was stricken by the defendant.

The court was right in refusing to declare a mistrial'. The motion to declare a mistrial came too late. But we think that the defendant is entitled to a new trial, and that our learned brother of the trial bench erred in overruling the motion. The only evidence introduced for the State was that of the witness Gatewood, who testified as follows; “On October 5, 1906, I arrested Ed Sherman, the defendant, and carried him to the jail, and in his right hip pocket he had a pistol concealed. I found it there when I went to search him, before locking- him up. I had a warrant for him when I made the arrest. This was in Sumter count}', Ga. I had one of the warrants, and M. Holloway had the other, when the arrest was made. I do not know who issued the warrant that I had; will not say that it was issued by Judge Crisp or Judge Súber. But I had a warrant for him — one of the two-warrants that I have in my hand.” The defendant’s counsel moved to rule out the testimony of Gatewood, as it did not show a legal arrest. We think this motion should have been sustained. The State is required to prove its case by legal evidence. From the evidence adduced it is not shown whether the arrest was or was not a -legal arrest; and the testimony could not affect the rights of the defendant, or be used to convict him, until it was shown affirmatively that the defendant had been legally arrested. As this court has already held, in the case of Hughes v. State, 2 Ga. App. 29, 58 S. E. 390, “evidence of guilt which the defendant, either directly or indirectly, is compelled to disclose by an unlawful search and seizirre of his person under an illegal arrest, is not admissible in a criminal prosecution against the person thus illegally arrested.” The law requires a warrant, in order to render an arrest legal, unless the offense is committed in the officer’s presence, or the offender is endeavoring to escape, or there is likely to be a failure of justice for want of an officer, to issue a warrant. Seo Hughes v. State, supra. The arrest in this case may have been legal, and it perhaps could have been shown that the defendant was arrested on a warrant. But it devolved upon the State to show that the defendant wfis arrested on a warrant, and the State failed to prove it. The testimony of Gatewood, that he had a warrant for him and that he was arrested on one of ihe two warrants that he had in his hand, was nothing but .the mere conclusion of the witness that the paper was a warrant. The paper itself, if it was a warrant, was the best evidence of what it contained, and as to whether it was or was not really a warrant.. The conclusion stated by the witness was not only objectionable, because it involved a statement of the contents of a paper upon which depended, perhaps, the liberty of defendant, but, further, because the answer of the witness assumed to pass upon the sufficiency of the contents of that paper to constitute a valid warrant authorizing the defendant’s arrest. The statement of the witness could not prove the paper to be a legal warrant, even if the paper had been lost and parol evidence of its contents were thus admissible. Not to say more, the answer of the witness assumed that the paper under which the defendant was arrested was issued by an officer authorized to issue warrants upon a proper affidavit, and that it set forth the violation of a penal law. If the defendant-was arrested upon a legal warrant, proof of that fact was not made by the statement of a mere conclusion of the witness; and, as it was not shown that the defendant was legally arrested on a warrant, the evidence obtained by reason of his arrest should have been excluded. If the paper really was a. warrant, the State could easily have put it in evidence.

We think, too, that a new trial should have been granted upon the ground that Justice served upon the jury, instead of Stephens, after having been rejected by the defendant. The case at bar' is nearly identical with the case of Stripling v. State, 77 Ga. 108, 3 S. E. 277. It is true that in the Stripling' ease neither the defendant nor his counsel knew the juror who served, while in the present case the defendant’s counsel did know the juror Justice; but the testimony that the counsel is near-sighted and did not see Justice on the jury, or know that he was there, until the jury came to render their verdict, is not disputed, and otherwise there is no difference in the two cases. It does not appear how Justice came to be substituted for Stephens; and, as remarked in the Stripling case, “it is somewhat remarkable that the substitution was not discovered and corrected at an earlier period.” But in the Stripling case, as in this, the mistake was not discovered until after the trial was over. In that case Jobson was substituted for Jones, and Jones was'an acceptable juror (as Stephens was in this case), while Jobson would have been a very unacceptable one (as Justice appears to have been in this case). “The allegation, in short, is that the defendant was tried by only 11 jurors of his own selection, and he asked, therefore, that a new trial be granted him upon this and other grounds, which, as before stated, the court refused. This refusal we are satisfied was error.” There might have been exceptions made to Justice propter affectum, if the defendant had desired to urge them; but, however this may be, the record shows that the defendant had used his right to strike Justice, and thereby peremptorily challenged him. The defendant had the right to be tried by the 12' jurors selected ; and, if it be true (and it is not contradicted) that neither the defendant nor his counsel knew Justice was on the jury until after the verdict, he was entitled to a new trial. If the affidavit of the defendant’s counsel is true, “Somebody other than the defendant or his counsel was evidently to blame,” and it is .not material whether it was called to the attention of tho jrrdge prior to the motion for new trial. That the right to a jury of one’s own selection nmv be preserved by motion for new trial, see Dovey v. Hobson, 6 Taunton, 461.

In our examination of this question we have found two cases in which a new trial was held to have been properly refused where une juror was substituted for another; but neither of those cases is similar to this case. In the case of Anderson v. Green, 46 Ga. 362, a juror was selected bjr both parties, and another answered to his name and served in his stead, and the Supreme Court held that that was not a good ground for new trial, as it did not appear that both the substitute and the principal were unknown to the defendant and his counsel. The difference between the Anderson case and the case at bar is that the person who served had not been rejected. In the present case Justice had been peremptorily challenged and stricken from the list by the defendant. Nor was an3r reason shown or offered to be shown in the Anderson case why tho person who served was for any cause objectionable to the defendant. And the case of Burns v. State, 80 Ga. 545, 7 S. E. 88, is unlike this case, as that case was held by the Supreme Court to be unlike the Stripling case, because in the Burns case the juror Charles Foster, who served, was accepted b3r the defendant, and the court held that, while the accused and his counsel did not know all the facts, 3ret in the exercise of due diligence they ought to have known, before accepting the juror, whether the juror they accepted (Charles Foster, a negro, instead of Charles Foster, a white man) was 21 years of age or a minor and whether he was upon the jury list of the county. In other words, the extent of the holding in that case was that an exception propter ■defectum to a juror accepted by a party on the trial could not bo «considered on a. motion for, new trial; but, from what appears. here, this defendant, after having positively rejected the juror, was tried by him without fault on his part. To refuse him a new trial, under this state of facts, would be to deprive him of his right of peremptory challenge. Judgment reversed.


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    457.
    Epps v. The State.
    Accusation of gaming, from city court of Jeffersonville — Judge Clements presiding. March 26, 1907.
    Submitted May 27,
    Decided June 19, 1907.

      R. V. Hardeman, S. A. Crump, L. D. Moore, for plaintiff in error. M. J. Carswell, solicitor, contra.
   Hill, C. J.

1. Under the act establishing the city court of Jeffersonville, . the defendant in criminal cases is given the right to seven peremptory challenges, and the State to five (Acts 1905, p. 248). Where in the trial of a criminal case in that court the defendant exercised this right and challenged peremptorily seven of the jurors, but the State chal- • lenged peremptorily only three jurors, there was no error in the judgment of the court in refusing to allow the defendant the two peremptory challenges which had been waived by the State. The contention that the defendant was entitled to the peremptory challenges which the State had not used, in addition to the seven allowed to him by law, is utterly without merit.

'2. No other error of law is - complained of, and the verdict was fully authorized by the evidence. Judgment affirmed.


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    459.
    REED v. THE STATE.
    'There was no evidence in this case to authorize a charge upon the subject of manslaughter or a conviction for that offense.
    Conviction of manslaughter, from Hall superior court — Judge Ivimsey. April 9, 1907.
    Argued May 27,
    Decided June 19, 1907.

      H. H. Dean, Thompson & Bell, for plaintiff in error.

      W. A. Charters, solicitor-general, Fletcher M. Johnson, contra.
   Powell, J.

The deceased was found mortalty wounded.' The ■defendant was accused of murdering him. The evidence was entirely circumstantial. .Whoever killed the deceased, if, indeed, his ■death was not accidental, struck him .on the head with some blunt instrument, probably a piece of wood. The record discloses none of the circumstances under which the mortal blow was given. The evidence connecting the defendant with the crime was very slight; but it is manifest that he was guilty of murder, if he was the person who committed the unexplained homicide. While manslaughter may be shown by circumstantial evidence, yet in all such cases enough of the actual details of the killing must appear to relieve the transaction from the presumption that it was unprovoked and malicious.

The wisdom of the rule that manslaughter should not be submitted to juries in cases of homicide, where the defendant is. guilty of either murder or nothing, is exemplified in the present instance. It appears from the record that the trial judge at first instructed the jury that there was no manslaughter in the case; that the jury should find the defendant guilty of murder, or else they should acquit him. After three cNys’ deliberation the jury reported that they stood six for acquittal and six for conviction. The judge, then, upon a change of mind, gave them instructions upon manslaughter; and in a few minutes the jury, returned a verdict finding the defendant guilty of that offense. This verdict was manifestly a compromise, therein twelve men,, widely apart, six believing the defendant a murderer, si-x believing him innocent, gave up their honest convictions and found him guilty of an offense of which, under the law and the evidence, he could not have been guilty at all, in order to relieve themselves of further consideration of the case. Under the well-established rule in this State, a new trial results.

Judgment reversed.