author: Wade, 0. J.

text:
    8596.
    PARRISH v. PARRISH.
    1. Where one seeks to recover damages because of an obstruction occurring on the land of another in a stream flowing through his own land and across the land of the other person, which resulted from natural. causes, and he alleges that the defendant failed and refused, after notice of the existence of the obstruction, not only to remove it himself, but to permit the plaintiff to remove it at his own expense, and that following a “heavy rain” the water of the stream was impeded by the obstruction and overflowed his lands, destroying a crop thereon .and injuring the lands themselves, a cause of action is sufficiently set forth to withstand a general demurrer.
    2. The damages sued for were set forth with sufficient particularity to likewise withstand a general demurrer.
    3. A paragraph of the petition, setting forth probable consequences to follow in the future from the continued maintenance of the obstruction complained of, was subject to the demurrer interposed.
    Decided November 14, 1917.
    Action for damages; from Walker superior court — Judge Tarver presiding. February 21, 1917.

      B. M. W. Glenn, for plaintiff.. Bosser & Shaw, for defendant.
   Wade, 0. J.

The plaintiff alleged, that he was the owner and in possession of a tract of land adjacent to certain lands belonging to the defendant; that a stream of water flowed through his lands and then across the lands of the defendant; that two trees, standing on the lands of the defendant and close to the bank of said stream, were precipitated by high winds and rain transversely across the bed of said stream, and thus constituted, with the help of leaves and other floating debris which gradually accumulated on the upper side, a partial dam, impeding the natural flow of the water; that the plaintiff, anticipating injury on that account, gave notice to the defendant of the existence of said obstruction, and requested him to either remove the same or to allow the plaintiff to enter upon said lands and do so at his own expense, but the defendant failed and refused to remove said obstruction or to permit the plaintiff to remove the same; that thereafter, at a time named in the petition, “a heavy rain fell,” and on account of said obstruction in the bed of the stream, the same overflowed its banks and flooded the lands of the plaintiff and destroyed one and a half acres of corn of the value to petitioner of $100, and injured and damaged the land itself in the sum of $200; that “the valué of said crop to petitioner” was $100, and that the “taking off of much of his soil, leaving it uneven and making cuts through said land, thereby damaged the value of said land to petitioner in the sum of $200, both of which amounts petitioner sues for.” The plaintiff further alleged, in the 5th paragraph of his petition, that various future injuries might be expected to flow from the continuance of the obstruction complained of.

The defendant demurred to the petition generally upon the ground that the same set forth no cause action, and specially to the 5th paragraph, which the defendant objected to as immaterial in that it set forth no ground for relief as against him. The court entered up an order sustaining the “within demurrer” and dismissing the petition; and to this judgment the plaintiff excepted.

1. It is insisted in the brief of counsel for the defendant that no cause of action was set forth, because a recovery was sought for an act of God, for which the defendant was in no sense responsible, in that the petition failed to disclose that the trees which fell across the stream from natural causes offered any obstruction to the passage of water along its bed, or injured the plaintiff in any way until a “heavy rain” intervened and produced the damage, and that such a rain was itself an act of God for which the defendant could not be held liable. Our Supreme Court held, in the case of Cannon v. Hunt, 113 Ga. 508, 510 (38 S. E. 983); that “Constant, unusual, or heavy rains can not of themselves be classed as a providential hindrance.” The case there under consideration was one where a party sought to excuse delay in completing a building in a given time, because of unusual, heavy, and constant rains. Again, in Doster v. Brown, 25 Ga. 24, 26 (71 Am. D. 153), Judge McDonald, delivering the opinion of the court said: “While every shower of rain that falls upon the earth is the act of God, in contradistinction to the act Of man, yet an ordinary freshet is not the act of God in the legal sense which protects a man against responsibility for the non-performance of a contract like that made by this plaintiff.” The phrase “act of God” is some times defined as “a natural cause, the effect of which can not be prevented by the exercise of prudence, diligence, and care, and the use of those appliances which the situation of the party renders it reasonable that he should employ; something overwhelming and not merely an incidental circumstance.” 1 Corpus Juris, 1173. “The most comprehensive definition of the term is any accident, due directly and exclusively to natural causes without human intervention, which by no amount of foresight, pains, or care, reasonably to have been expected, could have been prevented. . . When the effect, the cause of which is to be considered, is found to be in part the result of the participation of man, whether it be from active intervention or neglect, or failure to act, the whole occurrence is thereby humanized, as it were, and removed from the operation of the rules applicable to the acts of God.”' Id. 1174. Generally speaking, one who is injured in his riparian rights by a detention of the water may recover damages therefor (40 Cyc. 577); and while one sued in such an action may defend because of want of notice to remove the obstruction complained of, if he was not the author thereof (Id. 578), “where defendant seeks to escape liability on the ground that the damage was the result of an extraordinary and unprecedented flood or freshet, the burden is upon him to establish* that it was of such character.” Id. 585. The mere allegation in the plaintiff’s petition that the injury followed as a result of a “heavy, rain” would not be equivalent to the statement that there was an extraordinary Or unprecedented flood amounting to an act of God; and if this defense was relied upon, the allegation in the petition that a “heavy rain,” in connection with the obstruction across the natural bed of the stream, caused the damage would not dispense with proof that the rain was so unprecedented and extraordinary as to amount to an act of God. See 1 Corpus Juris, 1177, 1178, and cases there cited. In this suit the plaintiff distinctly alleged that the obstruction in the stream,which occurred from natural causes, was brought to the notice of the defendant before the injury resulted for which he sued, and that he sought permission from the defendant to enter upon the lands of the latter and remove, at his own expense, the said obstruction, which he anticipated might bring about the identical injuries for which he sued; and that the defendant not only failed himself to act upon the notice, but declined to allow the pla-intiff to remove the possibility of injury from the obstruction. It is said in "Williams v. Columbus Producing Co. (W. Va.), 93 S. E. 809, that “No liability attacks to any one for damages sustained by reason -of the acts of God and the forces of nature, but a party whose wrongful acts co-operate with, augment, or accelerate those forces, to the injury of another, is liable in damages therefor.” It is clear that if the defendant had himself placed the obstruction across the stream, which brought about the injury to the plaintiff, he would have been liable; and under the rule in the Williams ease, supra, if he by any wrongful act co-operated with, augmented, or accelerated the forces of nature to the injury of another, he would still be .liable for the resulting damage. The question in this case is whether the failure and refusal of the defendant to either himself remove or to allow the plaintiff to remove the obstruction in the bed of the stream, not placed there by his intervention, but resulting from natural causes, amounted to a maintenance of the obstruction by him, and consequently rendered him liable in damages for the injuries flowing not only from his failure to remove the obstruction after notice of its existence but from his refusal to permit the plaintiff to remove such obstruction. If the defendant himself had been responsible for the presence of the obstruction in the stream, he could not plead, as a defense to an action for damages on account of such obstruction (coupled with a “heavy” fall of rain), that such fall of rain was extraordinary or unprecedented and therefore an act of God, unless he could go further and both allege and show that the extraordinary or unprecedented flood or freshet would, itself and alone, have produced the results complained of. It is clear to our minds that under the allegations in the petition the failure and refusal of the defendant not only to remove, but even to permit the removal of the obstruction from the bed of the stream (on his lands), after due and sufficient notice and request, amounted to a maintenance by him of said obstruction and rendered him liable for the results flowing therefrom on account of - a fall of rain merely alleged to be a “heavy rain,” and not alleged to be so unprecedented and extraordinary as to amount to an act of God, which by itself and unaided by human intervention brought about the damage sued for. We therefore think that the court erred in sustaining the general demurrer, since the petition as a whole set forth a cause of action.

2. It is insisted in the brief of counsel for the defendant that the allegations of damage are too meager and indefinite to be the basis of recovery, and that therefore the demurrer was properly sustained. The petition alleged that the value of the said crop of corn “to petitioner” was $100, and that the land was damaged to the value “to the petitioner” of $200, in the manner described therein. Fairly construed, the allegations amount to an assertion that the crop was damaged to the extent of $100, and the land to the extent of $200 (actual or market value), whereby petitioner had been injured in these amounts. While the damages are not specifically and precisely set forth, in the absence of any special demurrer upon this ground we think the allegations of damage were sufficient to withstand a general demurrer.

3. The special demurrer to the 5th paragraph of the petition does not appear from the order of the trial judge to have been definitely passed upon; but the same appears to have been well taken, as the allegations therein contained-refer to possible damages which might hereafter flow to the plaintiff from the further maintenance -of the obstruction in the bed of the stream. This paragraph was therefore clearly demurrable.

Judgment reversed,.

J enlcins and Lulce, JJ., concur.


source: Caselaw Access Project

author: Jenkins, J.

license: Public Domain

text:
    8605.
    Trippe v. Sheppard.
   Jenkins, J.

1. Where in a suit filed in and addressed to the city court, ■ with prayer to that court for process, there was attached process, tested in the name of “W. H. Sheffield, judge of said court,” and the name of the judge of the court was “E. H. Sheffield,” the process, being regular in every other respect, was not void; and it was not error for the court, upon motion, to allow an amendment striking the initial “W.” and inserting in lieu thereof the initial “E.,” and to overrule the plea to the jurisdiction. Civil Code (1910), §§ 5693, 5572, 570.9; Mitchell v. Long, 74 Ga. 94; R. & D. Railroad Co. v. Benson, 86 Ga. 203 (12 S. E. 357, 22 Am. St. E. 446) ; Kelly v. Budge, 2 Ga. App. 759 (59 S. E. 19); Sapp v. Parrish, 3 Ga. App. 234 (59 S. E. 821); Ware v. Lamar, 16 Ga. App. 560 (85 S. E. 824).

Decided November 14, 1917.

Complaint; from city court of Blakely — Judge Sheffield. Feb- • ruary 19, 1917.

Glessner & Collins, for plaintiff in error.

E. L. Smith, L. M. Bambo, contra.

2. This was a suit upon a promissory note which was unconditional in so far as it related to the payment of the principal and interest, and conditional only so far as it related to the payment of attorney’s fees. The defendant filed his answer in which he admitted that he had been duly served with notice for the collection of attorney’s fees, and which answer contained four special pleas, setting up fraud, breach of express warranty, breach of implied warranty, and failure of consideration, respectively. These pleas were not verified, and counsel for the plaintiff moved to strike them for this reason; whereupon the defendant amended his answer by swearing to all of his defenses except that which set up fraud. Counsel for the plaintiff renewed the motion to strike the plea remaining unverified, which motion was sustained. Eeld, that this plea being directed solely to the unconditional part of the contract, and not having been verified, the court did not err in striking it. O’Kelly v. Welch, 18 Ga. App. 157 (89 S. E. 76); Turner v. Bank of Maysville, 13 Ga. App. 547 (79 S. E. 180); Wade v. Watson, 129 Ga. 614, 616 (59 S. E. 294).

Judgment affirmed.

Wade, O. J., and Luke, J., concur.


author: Duke, J.

text:
    8637.
    Wood v. Hill.
   Duke, J.

1. The plaintiff alleged and proved that he was in the livery business, and was the owner of certain horses which were sound and in good condition; that the defendant, acting as agent of the owner of certain mules, induced the plaintiff to take them into his stables, the defendant falsely representing that they were sound and well; that plaintiff fully believed these representations, relied upon them, and was thereby induced to take them into his stables where his own horses were kept; that the mules had a contagious disease of which plaintiff was ignorant, and which they communicated to plaintiff’s horses, by reason of which the horses became siclc and died. Eeld, that the jury properly returned a verdict in favor of the plaintiff for his actual damages. Turner v. Clark, 143 Ca. 44 (84 S. E. 116) ; Snowden v. Waterman, 100 Ga. 588 (3) (28 S. E. 121) ; Knox v. Wible, 73 Ind. 233.

Decided November 14, 1917.

Action for damages; from Wilkes superior court — Judge Park. November 35, 1916.

Colley & Colley, J. M. Piiner, for plaintiff in error.

William Wynne, W. A. Slaton, contra.

2. The court’s instructions to the jury, of which complaint is made, were authorized by the evidence, and were in accord with the ruling announced.

Judgment affirmed.

Wade, C. J., and Jenkins, J., concur.


author: Luke, J.

text:
    8756.
    Staples v. Almand.
    Decided November 14, 1917.
    Certiorari'; from DeXalb superior court — Judge Smith. March 38, 1917.

      A. M. Brand, for plaintiff ‘in error. L. B. Norton, contra.
   Luke, J.

The petition for certiorari and the answer thereto presenting an issue of fact only, and the jury in the justice’s court having determined that issue adversely to the plaintiff in certiorari, it was not error for the judge of the superior court to overrule the certiorari.

Judgment affirmed.

Wade, C. J., and Jenleins, J., concur.


text:
    8826.
    Gazaway v. City of Atlanta.
   Luke, J.

Gazaway sued the City of Atlanta (after complying with the statute requiring the filing of claim for damages, etc.), alleging, that while he was in the employment of the city in the construction department, and while setting forms for the purpose of making a concrete sewer through property of the city, he was injured and damaged; that the forms which he and two other men were setting in a sewer ditch were made by a gang of carpenters under the supervision of Mr. Grimm; that petitioner was working under a different foreman; that said forms were made of pine lumber, held together by nails driven in from the outside; that the particular forms from which he received his injury had on one side a nail with the head on the inside, and an inch or more of the nail sticking out on the outside; that the forms were let down into the ditch.by the use of ropes; that on the day of his injury the servants and agents of the city let one of the forms down into the ditch, and, before the same reached the bottom, one of the ropes slipped off, and, after the plaintiff was warned to do so by those on top of the ditch, he and the other men working with him caught the form; that the nail sticking out of the said fo^m was driven into the palm of his left hand; that the city was negligent, in putting the said nail into the form with the point sticking outward, in leaving said nail sticking outward through said form, in not seeing the same, in not warning the petitioner of the existence of the same, in not properly inspecting the form before it was lowered into, said ditch, and in not extracting the nail from the form before attempting to use it in the ditch. To the plaintiff’s petition the defendant demurred upon the grounds: (a) no cause of action is therein set out; (6) it appears that the injury alleged was caused from a risk incident to the employment of plaintiff; (c) it appears that the said plaintiff was injured by the negligence of a coemployee, for which this defendant is not liable. The court sustained the demurrer and dismissed the suit, and the plaintiff excepted. Meld, that the petition did not set forth a cause of action against the defendant, and it was not error to sustain the demurrer and dismiss the suit. Dozier v. City of Atlanta, 118 Ga. 354 (45 S. E. 306); Park’s Ann. Code, § 3129.

Decided November 14, 1917.

Rehearing denied December 13, 1917.

Action for damages; from city court of Atlanta — Judge Eeid. March 27, 1917.

W. H. Terrell, for plaintiff.

J. L. Mayson, 8. D. Hewlett, for defendant.

Judgment affirmed.

Wade, C. J., and Jenkins, J., concur.


author: Bloodworth, J.

text:
    8378.
    Southern Fertilizer & Chemical Co. v. Carter.
   Bloodworth, J.

1. Where an agent sold guano to a person who could neither read nor write, and afterwards went to the home of the purchaser, and “it was nearly night when he came up in his car, and he did not stay but a little while,” and the agent told the purchaser he “had come t<j get him to sign the guano note,” and thus secured his mark to a note in which was embraced a mortgage on the crop, of which latter fact the agent did not apprise the purchaser, this was such a fraud as, when properly pleaded and proved, would relieve the purchaser of liability under the mortgage, it not appearing that there was any third party present who could read and write and the signer of the note being thus compelled to rely upon the representations of the agent who procured the note. In Gore v. Malsby, 110 Ga. 900, 901 (36 S. E. 315), it was said: “The defendant was illiterate; could neither read nor write; and avers the note was never read over to him before he signed it. We think the allegations make out a clear ease of the procurement of the note by such fraud as would render it absolutely void in law; and, instead of seeking to vary a written contract by parol evidence, he is simply endeavoring to show what the real contract was, and that his signature to what purports to be the written contract was obtained by the fraudulent misrepresentations of the party with whom he was dealing. . . It has repeatedly been decided that when one through his own negligence fails to inform himself about the contents of a written contract, he will not be allowed to vary it by parol evidence. But the difference is very marked between that class of cases and where one from illiteracy or ignorance is unable to read the writing he is induced to sign, and has to rely upon the representations made by the draftsman. . . See also, in this conneetion, Hansford v. freeman, 99 Ga. 376 [27 S. E. 706]; Chapman v. Atlanta Guano Co., 91 Ga. 821 [18 S. E. 41], where a note was written out for more than the agreement, and was signed by the maker when so dark that he could not see well, but on the representation of the payee. It was held that this constituted a good defense to the note. Certainly it would be equally as good a defense when the maker could not read what he was signing, and relied upon the representations of the draftsman. Numerous other authorities might be cited to sustain the ruling herein announced. In fact we know of no-other adjudication of this or any other court of last resort at all in conflict with our decision in this case.” A general rule laid down in Epps v. Waring, 93 Ga. 768 (20 S. E. 645), is as follows: “It is a universally recognized doctrine, supported by all respectable text-writers and upheld in every well-considered ease bearing upon this subject, that where a party has been induced to enter into a contract by a willful fraud on the part of the other party, calculated to deceive and which does deceive, the defrauded party may set up the fraud in his defense to an action upon the contract.” See also McBride v. Macon Telegraph Publishing Co., 102 Ga. 422 (2) (30 S. E. 999); Wood v. Cincinnati Safe &c. Co., 96 Ga. 120 (22 S. E. 909) ; Chapman v. Atlanta Guano Co., supra; Angler v. Brewster, 69 Ga. 362, 364. The foregoing ruling applies only to the mortgage embraced in the note, and has no.reference whatever to the note itself.

2. The ground of the motion for new trial based on the newly discovered evidence is without merit. Where a person as agent of another in the sale of guano takes a note in settlement therefor, makes affidavit to foreclose an alleged mortgage based on the note, and in said affidavit swears that he is the “duly appointed agent of and authorized by the [plaintiff] to make this affidavit,” and in the affidavit made to be used on the hearing of the motion for a new trial he swears that he “represented the plaintiff in looking after the collection of said- debt and in looking after the employment of counsel to proceed to foreclose the mortgage in said case, and consulted 'counsel with respect to the testimony in preparation for the trial thereof,” testimony of a witness who swears that he was present and heard a conversation between the defendant and the agent referred to can not be “newly discovered evidence,” because the agent himself, the alter ego of the corporation in this transaction, was a party to the conversation.

{a) Even if said evidence could be considered newly discovered, it is cumulative and impeaching in its character.

Decided November 14, 1917.

Mortgage foreclosure; from city court of Baxley — Judge Sellers. September 21, 1916.

Padgett & "Watson, for plaintiff.

(6) In cases of newly discovered evidence, “it must appear by affidavit of movant and each of his counsel that they did not know of the existence of such evidence before the trial, and that the same could not have been discovered by the exercise of ordinary diligence.” Civil Code, § 6086. This rule is not complied with where there is no affidavit of any one as agent for the plaintiff, and the attorneys swear only “that at the time of the trial of said case they had not been informed and did not know that the said Nep Carter had admitted to M. B. Johnson and J. C. Eranklin that he knew he had given a good mortgage note over his crop for the debt in question in said case.”

Judgment affirmed.

Broyles, P. J., and Harwell, J., concur.


text:
    8404.
    Bank of Omega v. Youmans.
    Decided November 14, 1917.
    Complaint; from city court of Tifton — Judge Eve. December 30, 1916.

      B. D. Smith, for plaintiff in error. Fulwood & FLargrett, contra.
   Bloodworth, J.

1. The petition sets out a cause of action, and the court properly overruled the demurrer.

2. Even if, under the facts of this case, counsel for the defendant in the court below should have been allowed to open and conclude the argument, yet, as the defendant introduced no evidence, and the evidence for the plaintiff demanded a verdict in his favor, the error was harmlss. “While the opening and conclusion of the argument ’is generally a valuable right, its refusal can not in any event be reversible error where the evidence demanded the verdict.” Madison Supply & Hardware Co. v. Richardson, 8 Ga. App. 344 (5) (69 S. E. 45); Moore v. Brown, 81 Ga. 10 (3a) (6 S. E. 833). See also Gibson v. Wilson, 130 Ga. 243, 244 (3) (60 S. E. 565).

Judgment affirmed.

Broyles, P. J., and Harwell, J., concur.


text:
    8513, 8514.
    CONN v. SIMPSON GROCERY COMPANY; and vice versa.

    The court did not err in sustaining the plaintiff’s demurrer, and in striking the defendant’s plea as amended.
    Decided November 14, 1917.

      Complaint; from Floyd superior court — Judge Wright. January 8, 1917.
    Simpson Grocery Company brought suit against C. L. Conn, on two $500 notes signed by J. J. Conn and W. F. Conn, and indorsed by C.-L. Conn, on which there was alleged to be a balance due, including attorney’s fees, of $885.82. The petition alleged that J. J. Conn and W. F. Conn had been adjudicated bankrupts, and could not be joined in the suit. The- defendant in his answer admitted the execution of the notes, denied any indebtedness to the plaintiff, and alleged, among other things, “that sometime before said notes were due, the plaintiff entered into a contract and agreement with J. J. Conn and W. F. Conn, the makers of said notes, whereby, for a consideration to the plaintiff, the makers of said notes were granted an extension of time upon said notes, a copy of said contract and agreement being hereto attached and made a part of this answer.” Said agreement is as follows: “Georgia, Floyd County. Whereas J. J. Conn is indebted to Simpson Grocery Company $2500.00, which he desires to secure, Simpson Grocery Company having granted extension of time thereon; and whereas a part of said indebtedness is represented by the following notes: one dated Feb. 5th, 1913, for $500.00, is due Oct. 15th, 1913 (on which interest has been paid to date); and one bearing same date for same amount, due March 15th, 1914 (interest on which is paid up to date); said 'two notes just described bearing also the signature of W. F. Conn and bearing the indorsement of C. L. Conn; and whereas an additional note of $500.00 is being taken this day, due two years after date; and whereas an additional note of $1000.00 is being taken this date, due three years after date; all of said notes bearing interest from date at the rate of eight per cent.; and whereas the consideration to Simpson Grocery Company for granting said extension is . . It is further agreed that failure to pay one of the foregoing notes according to their legal tenor and effect shall mature all at the option of the holder.” The defendant by amendment withdrew the foregoing agreement, and then by another amendment reinstated it. The plea as amended was demurred to, the demurrer sustained, and the- plea stricken. The plaintiff' then made out its case before a jury, a verdict in its favor was returned, and judgment was rendered for the full amount of principal, interest, and attorney’s fees sued for. The defendant excepted.

      M. B. Eubanks, for plaintiff in error in main bill.

      T. W. Lipscomb, Nathan Harris, Wright Willingham, contra,
   Bloodworth, J.

Nothing in the defendant’s answer constitutes a valid defense to this suit. The agreement which is. attached as an exhibit to the answer, and the relevant parts of which are hereinbefore set out, undoubtedly grants an extension of time on $1500 of the indebtedness, by taking notes, one for $500 due in two years, and the other for $1000 due in three years, but these notes are not the basis of this litigation. The agreement to extend did not fix any definite period to which the notes sued on were to be extended, but on the contrary the agreement provided “that failure to pay one of the foregoing notes, according to their legal tenor and effect, shall mature all at the option of the holder.” By the “legal tenor and effect” of the notes sued on they became due October 15th, 1913, and March 15th, 1914. Where there is an agreement between the holder and the maker of notes to extend the time of payment, unless it be for a definite period, even though for a valuable consideration, the surety will not be discharged from liability. The first headnote in the ease of Bunn v. Commercial Bank of Cedartown, 98 Ga. 647 (26 S. E. 63), is as follows: “An agreement by the holder and owner of a promissory note with the maker of the same to extend the time of its payment for an indefinite period, though based upon a valuable consideration, does not 'discharge a surety on said note from liability. As such agreement would not prevent the immediate bringing of an action, the making of it really amounts to no more than a mere failure by the creditor to sue as soon as the law allows, or negligence to prosecute with vigor his legal remedies, and it therefore stands upon an entirely different footing from an extension for a definite period. In the former case a surety may at any time pay the debt and proceed to enforce the same against his principal, and he may also proceed against the co-sureties, if any, for contribution. In the latter he can not do this, and consequently his risk is increased and he is discharged.” See also Woolfolk v. Plant, 46 Ga. 422 (2). From the foregoing it will appear that the court did not err in sustaining the demurrer and in striking the pleas.

Judgment affirmed on main bill of exceptions; cross-bill dismissed.

Broyles, P. J., and Harwell, J., concur.


text:
    8955.
    Wooster v. The State.
    Decided November 14, 1917.
    Indictment for adultery and fornication; from Camden superior court- — Judge Highsmith. May 26, 1917.

      James M. Yocelle, for plaintiff in error.

      Alvin Y. Sellers, solicitor-general, contra.
   Bloodworth, J.

1. The record in this ease shows that the defendant, who^was charged with adultery and fornication, he being unmarried and the woman married, confessed his guilt. Under the rulings in Burger v. State, 81 Ga. 196 (6 S. E. 282), and Cook v. State, 11 Ga. 53 (6), 54 (56 Am. D. 410), the confession was sufficiently corroborated by proof that the defendant and the woman lived together as man and wife, and for several months slept in a room with one'bed. See also McArthur v. State, 19 Ga. App. 747 (92 S. E. 234).

2. The grounds of the amended motion for new trial are without merit, and the judge did not err in refusing a new trial.

Judgment affirmed.

Broyles, P. J., and Harwell, J., eoneur.


author: Harwell, J.

text:
    8978.
    RISH et al. v. CLEMENTS, admr., for use, etc.
    1. “There is no law in Georgia requiring a demand by the sheriff on either the principal or the surety on a forthcoming bond, in order to establish a breach of the bond. Legal advertisement of the property described in the bond is sufficient notice to the parties, and proof of the advertisement will suffice to show such breach, if the property be not produced at the time and place of sale.”
    2. There is no provision of law authorizing two newspapers having a general circulation in a county to be jointly designated as the official medium for its legal advertisements.
    3. The official advertising medium not having been in any way changed by an abortive attempt of the county officials to name two newspapers as the official organ of the county, and the advertisement of the property which the defendant in fl. fa. had obligated himself to produce having been regularly made in the official organ of the county, the obligor and his surety were sufficiently notified of the time and place of sale; and upon failure to produce the property after such advertisement, they were liable on their bond. Hogan v. Morris, 7 Ga. App. 232 (66 S. B. 550).
    4. The forthcoming bond was conditioned upon the delivery of “one horse named Frank, one black mule named Ella, one black horse mule named Scott, which was levied on as the -property of J. T. Rish, under a mortgage fl. fa. issued from the superior court of Calhoun County in favor of the Bank of Edison.” The advertisement described the property, and the proceedings under which it was to be sold, in all respects as did the bond, with the single exception that it was advertised as the property of' John C. Eish, instead of J. T. Eish. It .was admitted by the defendants that they knew of no John C. Eish. Held, that the description of the mortgaged property as given in the advertisement was sufficiently similar to that description given in the forthcoming bond to give the obligor and surety on the bond notice as to the time and place of sale.
    5. Eor the foregoing reasons, the judgment of the court holding the obligor and the surety on the forthcoming bond was not erroneous.
    Decided November 14, 1917.
    Action upon bond; from Calhoun superior court — Judge Harrell. June 6, 1917.
    A mortgage fi. fa. in favor of the Bank of Edison against John T. Eish was levied upon certain personal property as the property of the defendant. A forthcoming bond, signed by J. T. Eish and E. L. Eish as security, conditioned upon the delivery of the property at the time and place of sale, was given to the sheriff. The property was advertised, in the Calhoun County Courier, for sale on the first Tuesday in November, 1915. The levy recited: “Levied on and to be sold as the property of John C. Eish by virtue of a mortgage fi. fa. in favor of the Bank of Edison against said John C. Eish.” The property was not forthcoming on the day of sale, and, the sheriff having died, J. M. Clements was appointed his administrator. Thereafter suit was brought by J. M. Clements, administrator of the estate of W. L. Calhoun, sheriff,for the use of the Bank of Edison, against J. T. and E. L. Eish, on the forthcoming bond. The defendants insisted, by way of defense, that there had never been any breach of the bond, because there had never been any legal advertisement. They alleged that two -newspapers, the Calhoun County Courier and the Edison News, both published in Calhoun County, had been,, ever since January 1, 1911, designated by the clerk, ordinary, and sheriff as the official organ for the publication of advertisements in Calhoun County, and that the. sheriff had never advertised the sale of this mortgaged property in the Edison News. After the introduction of evidence the trial judge directed a verdict in favor of the plaintiff, to which the defendants excepted, contending that'the evidence demanded a verdict in favor of themselves and against the plaintiff.
    The evidence showed, that, prior to January 1st, 1911, the Calhoun County Courier was the official organ of Calhoun County, but .that after the passage of the act of 1910, giving the'right of selecting the official organ jointly to the sheriff, clerk, and ordinary, these officials, in the year 1910, attempted to change the official organ, and selected both the Calhoun County Courier and the Edison News, newspapers published in Calhoun County, as the official organ of the county. The Calhoun County Courier is a weekly newspaper published in Arlington, in Calhoun County, Ga., and was in existence during all the year 1915. A notice was published in both papers, signed December 9, 1910, by the county officials, to the effect that after January 1, 1911, the official advertising organ of said county would be the Calhoun County Courier, published at Arlington, Ga., and the Edison News, published at Edison, Ga., and that all sheriff’s sales and other legal advertisements would be published in both of said papers and the fees for such advertising divided equally between said papers. Testimony of the ordinary of the county showed that, since the attempted change in the county organ, he had' caused all citations, notices, and orders to be published in both papers, but he did' not • know what the officers of the county other than himself had done with reference to advertising. John T. Eish testified, that he had no notice of the intended sale' of the property on the first Tuesday in November, 1915; that he took the Edison News, and had noticed all issues of that paper for the four weeks preceding the day of sale; and that there was no advertisement of the property in those issues.. It was admitted by the defendants that the property levied on was not before the court-house door in- Morgan, Calhoun County, on the day of sale, between the legal hours of sale. The mortgage fi. fa. and the forthcoming bond and the issues of the Calhoun County Courier published in October, showing the due advertisement of the property in that paper, were introduced, in evidence. It was further admitted that Calhoun, sheriff of the county, had died, and that Clements was his administrator.

      L. M. Bambo, for plaintiffs in error. Smith & Miller, contra.
   Harwell, J.

(After stating the foregoing facts.) It is well established that no demand on the obligor and his surety is required in order to render them liable for failure to produce, on the day of sale, the property described in the forthcoming bond, and that legal advertisement of the sale is sufficient notice to them; and proof of the advertisement will suffice to show such breach, if the property be not produced at the time and place of sale. Early v. Hampton, 15 Ga. App. 95 (3) (82 S. E. 669), and eases cited. The obligor in the forthcoming bond in the instant case insists that there was no legal advertisement of the property, and that he was not, therefore, sufficiently notified of the time and place of sale.

It is insisted by plaintiffs that § 3290 of the Civil Code of 1910, which deals with the levy and sale of mortgaged property, only requires the same to be advertised “in one or more public gazettes of this State,” and that the advertisement in this ease in one paper was a sufficient compliance with that statute. It is not necessary to construe this section of the code, and to determine whether this is the correct construction to be placed upon it. We will say this much, however: In our opinion this section should be construed with sections 6062 and 6067, which deal generally with the advertisement of all property by the sheriff. Construing these sections together, it would seem that it is not sufficient to advertise mortgaged property in any public gazette of this State, but that it must be advertised in a newspaper published at the county site of said county, if there be such, and if there be no such paper published in the county, then in the nearest newspaper having the largest or a general circulation in such county. That this is the correct construction seems to be indicated by the language of Chief Justice Simmons in Coffee v. Ragsdale, 112 Ga. 709 (37 S. E. 970). This decision further indicates that all of the official advertisements of the county must be made in the same paper.' He says: “These sections of the code seem to indicate an intention on the part of the legislature to have all the official advertisements of the county made in the same paper, so that the people may know where to look for information in regard to the official business of the county. If the law were otherwise, then in counties such as Eulton, which have a large number of newspapers, and, indeed, in any county having more than one, people interested in county matters would be put to considerable trouble and expense. They could not know in what paper to look for county advertisements, and would be compelled, in order to avoid missing some of these advertisements, to subscribe for all of the papers in which legal advertisements might be published, and to examine all of these papers for such advertisements. It is far better to have the advertisements all in one paper, and the legislature seems to have contemplated that this should be done.” Coffee V. Ragsdale, supra. In our opinion the advertisement in the instant case was legal, for the following reason: There is no provision of law authorizing two newspapers having a general circulation in a county to be jointly designated as the official medium for its legal advertisements. By reference to the code and to the act of 1910 (Ga. L. 1910, p. 87), it will be noticed that nothing is said therein as to the selection of more than one newspaper as the official organ for advertisements. “No sheriff, coroner, or other officer shall change the advertising connected with his office from one paper to another, without first-giving notice of his intention to do so, in the paper in which his advertisements may have been published.” Civil Code (1910), § 6065. “No journal or newspaper published in this State shall be declared or made the official organ of. any county . . unless such newspaper shall have been continuously published and mailed to a list of bona fide subscribers for a period of two years. . . Provided, that in counties where no journal or newspaper has been established for two years the official organ may. be designated by the ordinary, sheriff, and clerk.” Act of 1910; Park’s Ann. Code, § 6065 (a). It will be noted that in these sections no reference is made to more than one newspaper being the official organ, and we can not write such a provision into them. That this is the proper construction is further indicated by the language used in the decisions of the Supreme Court which have touched upon this subject. In Coffee v. Ragsdale, supra, page 705, it is further said: “When the sheriff of the county selects a newspaper in which to publish his legal advertisements, that newspaper becomes, under the code, the official medium for all county advertisements . . therein.” See also page 709 of the same decision. In Braddy v. Whiteley, 113 Ga. 746 (39 S. E. 317), it is said: “The sheriff must publish such advertisements in a newspaper published at the county site of the county, if one there be, the proprietor of which, is willing to do the advertising at the rates prescribed by law.” See also Dollar v. Wind, 135 Ga. 760 (70 S. E. 335). Hence, the concurrent action of the sheriff, clerk, and ordinary of Calhoun County, in attempting to make both the Calhoun County Courier and the Edison News the official organ of said county,,and paying each of them one half of the legal rates for advertisement, was illegal and void; and the Calhoun County Courier continued to be the official organ until some other newspaper had been selected by the concurrent action of these three officers, in the method pointed out by law. No other one paper having been named by them as the official organ, there was no change as required by law. There must be one newspaper designated as the official advertising medium for the county, and until such another has been selected in the method pointed out by statute, the one already designated remains the official. organ. The advertisement in this case, having been properly inserted in the official organ of the county, was a legal- advertisement, and the property not being forthcoming at the time and place of sale, there was a breach of the bond. There was no conflict in the testimony, and the judge properly directed a verdict for the plaintiffs. The other headnotes need no elaboration.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


text:
    8986.
    Andrews v. City of Edison.
    Decided November 14, 1917.
    Certiorari; from Calhoun superior court — Judge Harrell. June 6, 1917.

      A. L. Miller, for plaintiff in error.
   Bloodworth, J.

It appearing from the record that there was not “attached to the petition a certified copy of the bond, together with a certificate from the clerk of the court that the bond was filed with him and was approved and accepted by him,” and no pauper affidavit having been made, under the ruling in Gillespie v. Macon, 19 Ga. App. 1 (90 S. E. 970), the judge properly “overruled and denied” the certiorari.

Judgment affirmed.

Broyles, P. J., and Harwell, J., concur.


text:
    8987.
    LANE v. SMART.

      1. The written instrument offered in evidence by the claimant and relied upon by him as supporting his title to the property under levy showed on its face that it was given as security for a note described in the instrument, and contained the following clause: “Provided, if we shall pay said note when due, the lien thereby created to become void.” Held, that this, instrument is a mortgage and not a bill of sale, and did not put title to the property into the claimant.

      2. There being some other evidence, independent of the above-described instrument, in support of the' claimant’s title, the evidence did not demand a verdict for the plaintiff in fi. fa., and the discretion of the judge of the superior court in the first grant of new trial to the claimant will not be disturbed.
    Decided November 14, 1917.
    Certiorari; from Decatur superior court — Judge Harrell. May 24, 1917.

      W. V. Custer, for plaintiff.
   Harwell, J.

Lane levied a distress warrant on an automobile, to which Leslie Smart filed a claim. The issue was tried by a jury in a justice’s court and determined in favor of the plaintiff. The judge of the superior court, upon certiorari, granted the claimant a new trial, to which order the plaintiff excepted. The plaintiff relied mostly, if not altogether, on a written instrument which he claimed put the title to the automobile in him as security for a note. The material part of this written instrument is set out below.

1. Inasmuch as the case is to be retried, it is well to determine whether the instrument relied on by the claimant conveyed title to him, or was simply a mortgage. An instrument containing a defeasance clause, describing the debt, and showing on its face that it is intended as security, is a mortgage, and passes no title. Civil Code (1910), § 3256; Denton v. Shields, 120 Ga. 1078 (48 S. E. 423). The instrument offered in evidence by the claimant in the instant case describes the debt, shows on its face that it is given to secure the payment of that debt, and contains this clause: “Provided, if we shall pay said note when due, the lien thereby created to become void,” referring to the note described in the body of the instrument. This is a defeasance clause; and we think that the instrument in question is a mortgage, notwithstanding the use of the words, in another part thereof, “We do bargain, sell, and convey,” etc. . We have examined the cases cited, especially the case of Pitts v. Mailer, 115 Ga. 281 (41 S. E. 570). In that case the court holds that the clause, “Keconveyance of said property to be made upon the fulfillment of all the conditions of this instrument,” does not make the instrument in question a mortgage. The distinction which seems to be made by the later cases between an instrument conveying title and a mortgage is that.a stipulation for reconveyance of the property is not a defeasance clause, and does not thereby make the instrument a mortgage; and in so far as the decision in Pirkle v. Equitable Mortgage Co., 99 Ga. 524 (28 S. E. 34), held to the contrary, it .was .overruled in. the case of Pitts v. Maier, supra. The clause in question in the instrument to be construed in this ease is not a reconveyance clause, but a defeasance clause, stating that the lien created is to 'become void upon the payment of the note described. See also Owens v. Bridges, 13 Ga. App. 419 (79 S. E. 225), where it is said: “A stipulation for the reconveyance of the property is not a defeasance clause, such as a provision that the instrument would be void on payment of the debt.” Compare also- Johnson v. Brewer, 134 Ga. 832 (68 S. E. 590, 31 L. R. A. (N. S.) 332); Ward v. Lord, 100 Ga. 407 (28 S. E. 446); Scott v. Hughes, 124 Ga. 1000 (53 S. E. 453); Massillon Engine &c. Co. v. Burnett, 19 Ga. App. 487 (91 S. E. 786), and cases cited. Holding, as we do, that the writing in question in the instant case is a mortgage, and therefore insufficient to support the claim to the property, it is not necessary to pass upon the question of the admissibility of the mortgage in evidence.

2. There is in the record some parol evidence tending to support the claimant’s title. Whether or not this testimony is independent of the written instrument relied upon by the claimant, or is merely a conclusion therefrom, does not clearly appear. This can be determined on the next trial. If this testimony of the claimant and his brother is simply a conclusion as to the effect-of the written instrument relied on and construed in this opinion to be- a mortgage, it should not, of course, be admitted in evidence by the trial court. The first grant of a new trial upon certiorari, as upon a motion for new trial, is largely discretionary, and the reviewing courts will no! tax their ingenuity to ascertain the reason why á new trial was granted; and unless the judgment under review by the certiorari was absolutely demanded, the first grant of a new trial upon certiorari will not be disturbed. Loftin v. Great Southern Home Asso., 9 Ga. App. 121 (70 S. E. 353). In this case we can not say that the judgment was absolutely demanded.

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., concur.


text:
    8990.
    HARMS v. ENTELMAN.
    The trial judge did not err in overruling the demurrer to the petition.
    Decided November 14, 1917.
    Complaint; from city court of Savannah — Judge Davis Freeman. May 17, 1917.
    Entelman brought suit against Harms on an account for rent, alleging that on September 1, 1911, he leased certain described premises -in Savannah to one Renken for a term of five years, beginning on that date and ending August 31, 1916. The rent was payable monthly on the first day of each month. Renken was adjudicated a bankrupt, and the trustee in bankruptcy, after obtaining an order from the referee, on January 24, 1914, sold .certain assets of the bankrupt, including the unexpired term of said lease. Harms purchased the assets, including the unexpired term of the lease, and received from the trustee a bill of sale, or transfer, a copy of which was attached to the petition. Harms took possession of the property and occupied the premises under said bill of sale, or transfer, paying rent therefor from the date of his purchase to May 1, 1916, at the rate of $100 a month. Harms has failed and refused to pay said rent from May 1, 1916, to August 31, 1916, though requested to do so, and is now indebted to petitioner in the sum of $400. The defendant demurred to the petition, because it does not allege that defendant was in possession of the property between the first of May and the first of September, 1916, and because it sets forth no cause of action.1 The trial judge overruled the demurrer, and the defendant excepted.

      Osborne, Lawrence & Abrahams, for plaintiff in error.

      Wilson & Rogers, contra.
   Harwell, J.

The petition set forth a cause of action. The contract is not set out, and we can not tell whether it was simply a contract of rental with only a usufruct to the tenant, or whether it conveyed an estate for years. The former would not be subject to levy and sale. Civil Code (1910), § 3691. The latter would be, as any other estate. Civil Code (1910), 3687; Clark v. Herring, 43 Ga. 226 (2). The petition refers to it as a lease for five years, and a lease proper is an estate for years. Civil Code (1910), § 3690; Schofield v. Jones, 85 Ga. 816, 823 (11 S. E. 1032). In the instant case the unexpired term of the lease has been sold and the sale assented to by the landlord, evidenced by his letting the purchaser remain in possession, receiving rent from him, and bringing suit for the rent during the unexpired term. That being true, it does not lie in the mouth of the purchaser to say that the unexpired term was not subject to levy and sale, and that he is only a tenant at sufferance, and can leave the premises whenever he wills, and so relieve himself of the obligation to pay the rent. The provision in § 3691, supra, that the usufruct is not subject to levy and sale is a statutory provision in favor of the landlord. It was not so at common law. Hudson v. Stewart, 110 Ga. 37, 40 (35 S. E. 178). The landlord in this case waives the right and assents to the sale.' Compare Kanawha Gauley Coal &c. Co. v. Sharp, 73 W. Va. 427 (80 S. E. 781, 52 L. R. A. (N. S.) 968, Ann. Cas. 1916E, 786). The purchaser, therefore, will not be. heard, after he has purchased the unexpired term and taken possession of and held the premises under the contract of lease, and thereby enjoyed the fruits of the contract, to contend that he is not bound by its terms. By electing to hold under it he will be held to assent to its terms. He can not assent in part and repudiate in part; upon the same principle that a principal can not ratify in part and repudiate in part. Civil Code (1910), § 3593; Hunter v. Stembridge, 17 Ga. 243; Howard v. Cassels, 105 Ga. 412, 418 (31 S. E. 562, 70 Am. St. R. 44). “A judicial sale of a lease imposes on the purchaser the obligation of paying to the lessor the rent accruing after the sale according to the terms of the lease; and this is true whether or not the purchaser enters into possession.” 24 Cyc. 1181 (5); D’Aquin v. Armant, 14 La. Ann. 217; McCean v. Caldwell, 107 Tenn. 138 (64 S. W. 16); Smith v. Brinker, 17 Mo. 148 (57 Am. Dec. 265); People v. Dudley, 58 N. Y. 323; Sutliff v. Atwood, 15 Ohio St. 186. A purchaser of a leasehold interest at a judicial sale is bound to perform the covenants of the lease for the payment of rent as an assignee of the term. Note in Ann. Cases 1916E, 821. And he can not relieve himself from liability for the rent by abandonment of the premises. Note in Ann. Cases 1916E. 805. See also 16 R. C. L. 363, 367; Wood’s Landlord and Tenant, §§ 334, 348. On no theory could Harms be a tenant at sufferance, under the facts alleged. See the excellent opinion of Mr. Justice Cobb in Willis v. Harrell, 118 Ga. 906, 909 (45 S. E. 794). It was not necessary for the petition to allege possession of the premises by the defendant, as is contended in the demurrer. The petition set forth a cause of action, and the court did not err in overruling the demurrer-thereto.

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., concur.


author: Broyles, P. J.

text:
    8991.
    HENDERSON v. HARDEMAN & PHINIZY.
    1. In an action ex contractu, where a cross-action is filed by the defendant, which sets up a conversion of the defendant’s property by, the plaintiff, the cross-action can not be maintained unless it is affirmatively shown that such property has been converted into money. Unless this fact is shown, the cross-action can not be construed as an action for money had and received, and a wai.Ver of the tort, but will be construed as an action ex delicto, which ordinarily can not be maintained as a cross-action in an action ex contractu.
    2. The verdict was demanded by the evidence, and it is therefore immaterial whether or not there were errors in the .charge of the court. Accordingly it is unnecessary to consider the various exceptions to the charge.
    Decided November 14, 1917.
    Complaint; from city court of Jefferson — Judge Mahaffey. May 22, 1917.

      John J. & Roy M. Strickland, for plaintiff in error.
    Erwin; Rucker & Erwin, contra.
   Broyles, P. J.

Hardeman & Phinizy brought suit against R. C. Henderson upon a promissory note for the principal sum of $800, given by Henderson to Carr, Boyd & Company,, and by the latter transferred to the plaintiff for value before maturity. The defendant admitted the execution of the note, but pleaded that he was entitled to a set-off of $724.34, alleging that he had turned over certain cotton of that value, which he as a planter had raised, to Carr, Boyd & Company to be sold and the proceeds credited on this note, and that Carr, Boyd & Company so agreed, and that this. cotton was shipped by this firm to Hardeman & Phinizy.The defendant also pleaded, that this was a cash transaction within the meaning of section 4126 of the Civil Code of 1910; that he had ■ never received any of the proceeds of this cotton, and that none of the proceeds were ever credited on -his note; and that therefore the title to the cotton still remained in him, and that he was entitled to have -the value of the cotton credited as a set-off to the plaintiffs’ suit. Upon the trial the defendant contended that Hardeman & Phinizy had received a notice from Carr, Boyd & Company to credit the defendant’s note with the value of the cotton which had been shipped to them. This contention, however, was not supported by the proof, the evidence not being sufficient to raise even a presumption that Hardeman & Phinizy had ever received such a notice; and even if such a presumption had been raised by the defendant’s evidence, it was completely rebutted by the evidence for the plaintiffs.

The evidence was undisputed that the defendant’s note had been indorsed and delivered to the plaintiffs before Carr, Boyd & Company received this cotton, and that the plaintiffs knew nothing of the agreement between the defendant and Carr, Boyd & Company to credit the proceeds of the cotton upon the defendant’s note, and that the plaintiffs, at the time this agreement was made, held the note as collateral security for a much larger note which Carr, Boyd & Company had executed to them.

Even if the sale of Henderson’s cotton to Carr, Boyd & Company was a cash transaction, within the meaning of section 4126 of the Civil Code of 1910 (which in our opinion is doubtful and is not here passed upon), the evidence did not authorize any set-off for the defendant on his cross-action to the plaintiffs’ suit. If the amendment to the defendant’s answer be construed as setting up a claim for the conversion of his cotton by the plaintiffs, in the absence of any allegations as to the non-residence or the insolvency of the plaintiffs, or other equitable reason which would authorize the defendant to set up in a cross-action a cause of action of a different nature from that set up in the plaintiffs’ petition, such a cross-action could not be maintained in an action ex contractu, since it would sound in tort. On the other hand, if the cross-action be construed as waiving the tort and suing in assumpsit for money had and received, it was not sustained by the proof. In Cragg v. Arendale, 113 Ga. 181 (38 S. E. 399), it was held that “Where one wrongfully takes the personal property of another and converts the same to his own us,e in some other manner than by a sale, and does not receive any money therefor, the owner has a right of action ex delicto against such wrong-doer, and is restricted to this form of action. In such a case the tort can not be waived and an action ex contractu be brought, for the reason that, until the wrong-doer has received money to which the owner of the property is entitled, there can be no action for money had and received or upon an implied promise to pay money. Spencer v. Hewitt, 20 Ga. 426; Barlow v. Stalworth, 27 Ga. 517. See also Reynolds v. Padgett, 94 Ga. 347 [21 S. E. 570] ; 40 Am. Law Reg. N. S. 50 et seq.” In Southern Railway Co. v. Born Steel Range Co., 122 Ga. 658 (50 S. E. 488), the first and second headnotes are as follows: (1) “The tort may be waived and the aggrieved party may sue in assumpsit where there has been a sale of the property converted, the action being one for money had and received to the plaintiff’s use.” (2) “But where the pleadings do not show that the property has been converted into money, and the suit is to recover the valúe of the property, the action is ex delicto and not ex contractu.”

The evidence in this case, as contained in the record, as to the amount of the defendant’s cotton sold to Carr, Boyd & Company, is very indefinite. It does not show the exact number of bales or the exact weight of each bale, or the exact price thereof; and when it comes to the amount of the defendant’s cotton which was shipped by Carr, Boyd & Company to Hardeman & Phinizy, the evidence is still more indefinite — it not appearing that all of the particular shipment of cotton made by Carr, Boyd & Company to the plaintiff (which the defendant contended was his cotton, and the cotton, for the value of which the plaintiff was responsible to him) was the defendant’s cotton, or how much of it was. The evidence also fails to show that Hardeman & Phinizy ever sold any of- the defendant’s cotton for any specified amount of money, or that any sum of money arising from its sale remained in their hands.

tinder the pleadings, in order for the defendant to avail himself of the defense set up in his cross-action, it was necessary for him to show by the evidence that Hardeman & Phinizy had sold his co'tton and retained in their possession a certain sum of money derived from the sale thereof. A well-established rule is that where a party litigant pleads that he is entitled to a verdict and a credit in a cross-action he must give to the jury sufficient data to enable them to estimate intelligently the damages or the amount of the credit that is claimed. In this ease the evidence in behalf of the defendant was so meager, uncertain, and indefinite that it would have been impossible for the jury to find any set-off in his favor.

The evidence as a whole clearly demanded the verdict. This being true it is unnecessary to consider the alleged errors in the charge of the court.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    8994.
    KEY v. THE STATE.
    1. The charges complained of in grounds 8 and 9 of the amended motion for new trial are authorized by the evidence, and are not subject to the exceptions taken.
    2. Although it is not obligatory upon the trial judge, in the absence of an appropriate written request, to outline the contentions of .the defendant which are based solely on the defendant’s statement, still, when the judge undertakes to state such contentions, he must state them correctly. It was harmful error for the court, in giving the defendant’s contentions to the jury, to include a contention not supported either by his statement or his evidence.
    3. The charge of the court in this case incorrectly stated the contentions of the defendant, and for that reason was erroneous.
    Decided November 14, 1917.
    Indictmeñt for murder; conviction of. manslaughter; from Jasper superior court — Judge Park. June 2, 1917.

    Sam Key was indicted for the murder of Cohen Malone, and was convicted of voluntary manslaughter. As each ground of the amendment to the motion for a new trial complains of certain instructions of the court upon the ground that they were unauthorized under the evidence, a recital of the testimony adduced upon the trial is necessary to a clear understanding of the errors complained of.
    The evidence shows, that the residence of the defendant was within sight of the home of Walter Roberts and Addie Roberts, his wife; that the home of defendant consisted' of a two-room house, back of which was a third room used as a kitchen. On December 9, about one-thirty or two o’clock p. m., Walter Roberts heard what he took to be a number of pistol shots, between the houses at Sam Key’s residence. Upon looking out of his window he saw Cohen Malone run out from between the houses, turn around and look back, stagger and fall. He saw Sam Key, the defendant, run up to Malone and, while standing right over him, shoot him with a shotgun. Witness could not see anything in-the defendant’s hand, but saw him walk up and shoot Cohen Malone when he was down. The testimony of Addie Eoberts was materially the same as that of her husband. She testified further, that Key, the defendant, had come by their residence a short time before the killing, and sat down with them in front; that shortly afterward Cohen Malone came by in his buggy, and the defendant arose and walked along behind the buggy, and shortly before the killing the witness' saw the defendant and the deceased in the buggy together, going towards the defendant’s home; that the buggy with these two occupants passed on the other side of defendant’s house and stopped, leaving all the buggy obscured from witness’s sight except the rear wheel; that shortly afterward witness heard the shots fired and saw deceased run out from behind between the houses, stagger and fall, and saw defendant shoot him while down on the ground. Cade Malone, father of deceased, testified that at the time of the homicide he found his son’s pistol at home, lying’ on the bed with all the cartridges except one in it, and that his son’s gun was at defendant’s home at the time, the defendant having borrowed it several days before, for hunting. Chafin', a witness for the State, had found a fresh shell, which had been cut around and shot, between where the body lay and the houáe, apparently shot from the house towards the body. The State, after introducing the foregoing testimony, closed.
    A witness for the defendant testified that Malone, the deceased, had come by her home the morning of his death, told her he was in some trouble.with a fellow, and asked for her husband. Another of his witnesses testified that she had seen Cohen on the day before his death, when he tried to borrow a shotgun from her, telling her that “he had got into it;” but witness refused to lend him the gun. A member of the coroner’s jury which investigated the killing testified that he had seen two or three bullet holes by the side of defendant’s door, supposedly fired from the yard, and found a bullet hole in the ground between the house and the place where deceased fell, supposedly fired from the house, and that a cut shell had been exhibited to the coroner’s jury. This witness found one bullet hole in the neck and shoulder of deceased, and a hole about an inch around on his stomach. Another of defendant’s witnesses testified, that she had been at Cade Malone’s house a little time before the .homicide, when Key, the defendant, came along; that Cohen told Key that he was going after some liquor that evening, and Key told him to come over-to his house and he would go with him; and that deceased went to the lot, got his mule, hitched it up, and went towards the defendant’s house. In a few minutes the shots were heard. This witness further testified that the-hole in the side of deceased was about the size of a dollar.
    The defendant made the following statement: “Gentlemen of the jury, the day before me and Cohen had this trouble I started to the field and got in the woods, and I caught this boy on my wife, and when they saw me they jumped up and run, and I hollered at my wife. And -I went on to my field and went to work. And when I come back to the house that night my wife was gone, and not expecting it I went to pieces. And I come on up the road and Cohen was standing up there in Cade’s yard, and he said, 'Come on and go to Mansfield with me after some liquor,’ and I told him 'All right.’ And he come up there in his buggy, and he said, 'Have you got a gun?’ And I told him 'No,’ and he said 'Let’s go back to the house and get one.’ And he wanted a match, and I went and got him a match. And I came out, and he said, 'Sam, what in the hell was you hollering at me for?’ And I said, 'I wasn’t holler'ing at you; I was hollering at my wife.’ He said, 'God damn you and your wife, I have got her and I expect to keep her.’ And I said, 'You are a God damn liar,’ and he jerked a pistol out and commenced shooting, and I shot. I run out with my gun; I. shot him with a shotgun and he fell; and I went down to Pa’s.”

      Greene F. Johnson, for plaintiff in error.

      A. 8. Thurman, solicitor-general pro tern., contra.
   Harwell, J.

(After stating the facts.) 1. We think the evidence authorized the charges complained of in grounds 8 and 9 of the motion for new trial. The charge set out in ground 8 was, that, should the jury believe the defendant lured Cohen Malone to his house for the purpose of killing him, and brought about circumstances where it was necessary for Malone to protect his own person, the defendant would not be authorized to take- advantage of any illegal circumstances he brought about himself. The charge set out in ground 9 was on the law of mutual combat.

2. The following excerpts from the charge of the court are complained of, for the reason that they misstated the contentions of the defendant, and put him in the attitude of asserting before the court and .jury two inconsistent defenses, thereby prejm dicing his case in the minds of the jury. In the 4th ground the following charge is complained of: “He contends, in the second place, he was justifiable, because, at the time he shot the person alleged to have been shot, Cohen Malone was endeavoring to have sexual intercourse with his wife; and he contends upon that ground also he had a right to shoot him, and under the law and facts of this case he was not guilty of any offense whatever.” In the ,5th ground this charge is excepted to: “As I stated to you just now, the defendant sets up two defenses in this case. 'Under the law he has the right to set up those two defenses; and if he is justifiable under both of them or justifiable under either of them, you would not be authorized to convict the defendant in this case. He contends in the second place that he shot the person alleged to have been shot, to prevent Cohen Malone from committing an act of adultery with his wife; and contends that was one of the reasons he shot him, and contends he had a right to shoot, and contends that at the time he shot him he was justifiable.” In the 6th ground: “I charge you as a correct principle of law, under the laws of the State of Georgia, a husband has the right to take the life of another person to prevent an act of adultery with his wife, under the following circumstances: He has a right to shoot the adulterer of his wife just before the act is committed, or during its operation, or immediately afterward; that is, if the act of adultery is about to take place with his wife, or if the act of adultery has been committed; if a husband kills another under those circumstances, then the law says he would be justifiable, and you would not be authorized to convict him of any offense. But whether or not it was in operation, or whether or not it was immediately afterward, are all questions of fact for consideration and determination by the jury.” The charge complained of in the 7th ground is as follows: “I charge you further, if there was an act of adultery pending at that time, that is, if the defendant in this ease, acting as a reasonable man, honestly believed it was necessary for him to take the life of the person alleged to have been killed in that bill of indictment, and if he killed him acting as a reasonable man to prevent the repetition of a further act of adultery, in the event there had been an act of adultery with his wife, and he killed him under circumstances of that kind, he would be justifiable, and you would not be authorized to convict him of any offense.” The court appends a note to these grounds of the motion, stating that “able counsel for movant, in his argument to the jury, forcibly presented the principles of law complained of in said grounds. The court remembers that he quoted the following, to wit: ‘The man that eommitteth adultery with another man’s wife, even he that eommitteth adultery with his neighbor’s wife, the adulterer and adulteress shall surely be put to death.’ The court is satisfied, from his exalted opinion of movant’s counsel, that he would not, in the argument of any case, enter the field of absurdity. The court was fully justified in giving said instructions from the facts, but, in addition thereto, had the solemn opinion in judicio of one of Georgia’s best lawyers, as a compass to be guided by in reaching the proper legal port.” It is not, without a request to do so, obligatory on the judge presiding in the trial of a criminal case to give in charge to the jury the law applicable to a theory of the defense raised alone by the statement of the accused. Yet, when a given charge is directed to a theory raised by the defendant’s statement, it should fully cover the theory so raised. If the trial judge undertakes to state the contentions of the defendant, as embodied in his statement, he must state them correctly. Hardin v. State, 107 Ga. 718 (33 S. E. 700); Ragland v. State, 111 Ga. 211 (36 S. E. 682); Gay v. State, 111 Ga. 648 (36 S. E. 857); Garland v. State, 124 Ga. 832 (2) (53 S. E. 314); Richards v. State, 114 Ga. 834 (40 S. E. 1001). The same principle is applied by the courts in civil actions. Southern Ry. Co. v. Thompson, 129 Ga. 367 (58 S. E. 1044); Hightower v. Ansley, 126 Ga. 8 (6), 13 (54 S. E. 939, 7 Ann. Cas. 927). The defendant’s references, in his statement, to seeing his wife and the deceased in the woods in a compromising position on the day before the killing, and to her not being at the house that night when he returned, and to the reply of the deceased, “God damn you and your wife, I have got her and I expect to keep her,” are not given by defendant as the reason why he shot the deceased. He does not put his defense upon the right'to shoot to prevent an impending act of adultery with his wife. Defendant’s reply to the above-quoted statement of deceased, — “I have got her [defendant’s wife] and I expect to keep her,” — was to call deceased a liar. Defendant says that then “he jerked a pistol out and commenced shooting, and I shot,” thus putting his right to shoot upon the .ground of self-defense. The apparent friendly feeling existing in the mind of the defendant toward the deceased on the morning preceding the killing, according to the evidence, and according to defendant’s own statement, and the further fact that there was no evidence to indicate that the wife was present at the home of defendant when the shooting took place, negative the theory that he shot to prevent an impending criminal intercourse between his wife and deceased. At any rate he made no such contention in his statement, or in any evidence offered by him.

Was the charge of the court, under these circumstances, harmful to the accused? It is the contention of the State that the charge 'gave the defendant the benefit of a defense to which he really was not entitled, and that therefore it could not be harmful to him, but that it was really helpful.- We can not take that view.of it. Jurors, as a rule, respect and give full weight.to the words which fall from the lips of the trial judge in his charge, and rightly so. .The testimony- of .the witnesses and the statement of the defendant may, and sometimes do, fall upon inattentive ears. How often have we seen tired jurors who have given but slight attention to the arguments of counsel listen intently to catch every word uttered by the trial'judge in his charge. Can it be said, then, when a respected trial judge sums up the case and gives to the jury, just before they retire to consider their verdict, some theory of the case, as a contention of the defendant, which he does not ask for, and which on the face of it the jurors at once recognize is utterly without foundation in fact, that s,uch instruction is harmless to the accused? Does it not weaken his real defense in the minds of the jury, if he has one? We are so constituted that our confidence in the rightfulness of. a cause really meritorious may be shaken because of some contention which is plainly false or absurd.

The argument of counsel, as stated in the note appended by the court to the grounds of the motion, did not authorize the charge complained of; It is. true that a party can not obtain a reversal for an error which he has invited, as by s request to charge or by a formal admission that a given principle is not involved in the case. Partee v. State, 19 Ga. App. 753 (93 S. E. 306); Quattlebaum v. State, 119 Ga. 433 (46 S. E. 677); Griffin v. State, 113 Ga. 281 (38 S. E. 844). But arguments of counsel to the jury will not justify a charge not authorized by the evidence or by the defendant’s statement. Horton v. State, 120 Ga. 307 (47 S. E. 969); Tanner v. State, 145 Ga. 71 (88 S. E. 554). Furthermore, the argument of counsel in the instant case, so far as the record shows, did not go to the length of claiming that the defendant had a right to kill the deceased because at that time — that is, at the timé of the killing — the deceased was endeavoring to have sexual intercourse with defendant’s wife. The court instructed the jury that the defendant “contends he was justifiable because at the time he shot, the person alleged to have heen shot, Cohen Malone, was endeavoring to have sexual intercourse with his wife, and he contends upon that ground also he had a right to shoot him,” etc. We hold, therefore, that the charge of the court incorrectly stated the contentions of the defendant, and was such harmful error as requires the grant oí a new trial. The court erred in overruling the motion for a new trial.

Judgment reversed.

Broyles, P. J., and Bloodworth, J., concur.


author: Broyles, P. J. Bloodworth, J.,

text:
    8995.
    COMER v. THE STATE.
   Broyles, P. J.

1. The offense of sodomy can be committed per os, or otherwise than per anum. Herring v. State, 119 Ga. 709 (46 S. E. 876); White v. State, 136 Ga. 158 (71 S. E. 135), s. c. 9 Ga. App. 307 (71 S. E. 499); Jones v. State, 17 Ga. App. 825 (88 S. E. 712).

2. While criminal statutes must be strictly construed, yet, under the construction given to section 373 of the Penal Code of 1910 by the Supreme Court in Herring v. State and in White v. State, supra, and necessarily ' adopted by this court in White v. State and in Jones v. State, supra, it follows, as a reasonable, logical, and unescapable deduction therefrom, that where a man and a woman voluntarily have carnal knowledge and connection against the order of nature with each other, they are both guilty of sodomy, whether the offense be committed by the mouth of the man or by the mouth, of the, woman.

(ft) Penal Code section 373 reads as follows: “Sodomy is the carnal knowledge and connection against the order of nature, by man with man, or in1 the same unnatural manner with woman.”' In this section the word? “the same- unnatural manner” refer to the words “against the order of nature,” and should be so construed. Sexual intercourse by the use of the sexual organ of the female and the mouth and tongue of the male is as much “against the order of nature,” and therefore is as fully covered by the statute, as where the intercourse is consummated by the use of the sexual organ of the male and the mouth of the female, or as where the unnatural connection is accomplished by the introduction of the sexual organ of one male into the mouth of another male. It is, under the interpretation of the statute given by the Supreme Court, too narrow a construction to hold that the words “the same unnatural manner” limit the connection against the order of nature, prohibited by the statute, solely to where the connection against the order of nature is consummated in some manner by the use of the sexual organ of the male.

Decided November 14, 1917.

Indictment for sodomy; from Muscogee superior court — Judge Howard. June 18, 1917.

Ed. Wohlwender, fox plaintiff in error.

G. F. McLaughlin, solicitor-general, contra.

3. The indictment in this ease charged that the defendant (who -was a woman), on the 3d day of June, 1917, in Muscogee county, Georgia, committed the offense of sodomy, by unlawfully having “carnal knowledge and connection against the order of nature and in an unnatural manner with one Blake Robinson; for that the said Mary Jane Comer [the defendant], did then and there persuade, induce, permit, and consent for the said Blake Robinson to insert into her private parts his mouth and tongue, to wit, her vagina, and uterus, and the said Blake Robinson did then and there, at her request, solicitation, knowledge, consent, and permission, insert into and penetrate her vagina and uterus his mouth and tongue, thereby having carnal knowledge and-connection with the said Blake Robinson against the order of nature and in an unnatural manner, contrary to the laws of said State, the good, order, peace, and dignity thereof.” Under the rulings stated in the preceding headnotes, the court did not err in overruling the demurrer which set up that the allegations in the indictment did not show the commission of the crime of sodomy, or of any other crime under the penal laws of this State.

Judgment affirmed.

Harwell, J., concurs. BloodwortJi, J., dissents.

Bloodworth, J.,

dissenting. Especially on account of the .loathsomeness of the charge in this indictment (the insertion of the mouth and tongue of the male into the vaginal opening of the female) do I regret that I can not agree with my brethren in the conclusion reached by them, as shown by the 2d and 3d headnotes above. As defined in our code, “Sodomy is the carnal knowledge and connection against the order of nature by man with man, or in the same unnatural manner with woman.” Construing this statute strictly, as all criminal laws must be construed, I think it means that the carnal knowledge must be by man with man, or in the same unnatural manner by man with woman. AYhen the connection is thus had, both participants are guilty. Primarily carnal knowledge» is synonymous with sexual intercourse, and is "the act of a man having sexual bodily connection with a woman” (Noble v. State, 22 Ohio State, 541, 545; Commonwealth v. Squires, 97 Mass. 61; definition of "carnal knowledge” in Black’s Law Dictionary, 174; 6 Cyc. 351; 9 Corpus Juris, 1293), and "is .the insertion of the male organ to some extent, however slightly, into the female organ of the female.” Maxey v. State, 66 Ark. 523 (52 S. W. 2). “The carnal knowledge necessary to constitute this offense [sodomy] is the same that is required in the case of rape. In this offense, as in rape, the crime is complete on proof of'penetration.” 1 Bussell on Crimes (7th Eng. ed.) 976.- It will be noted that in the definition of sodomy in our code the words “carnal knowledge” are the same as those .used in the definition of rape. It would hardly be insisted that rape could be committed by the man using his mouth and tongue in the manner alleged in this indictment. “A conviction of sodomy can not be sustained, the evidence not showing penetration.” Green v. State (Tex. Cr. App.), 79 S. W. 34. “The crime of sodomy can not be accomplished .between two women . . The essential elements of the crime of sodomy in any of its branches are very similar in character to those of the kindred crime of rape. . . Penetration of the body of the catamite, pathic, or subject is absolutely necessary to constitute the crime of sodomy, both at common law and under statute.” 1 Wharton’s Crim. L. (11th ed.), 965, 969, §§ 754, 758. Penetration by what? The same organ of the male used in having ordinary sexual intercourse. Sodomy as originally construed was only per anum. This was the crime of Sodom, the city that gave the abominable and disgusting crime its name. "Everyone commits the felony called sodomy who, . . being a male, carnally knows any man or any woman (per anum).” See definition of sodomy in Stroud’s Judicial Dictionary.

It is now held that the crime may be committed by the insertion of the virile organ of the male into either end of the alimentary canal, i. e. per anum or per os. Our own courts have so decided (White v. State, 136 Ga. 158, 71 S. E. 135; Herring v. State, 119 Ga. 709, 45 S. E. 697; Jones v. State, 17 Ga. App. 825, 88 S. E. 712); but the writer does not believe- that the indictment in this case is sustained by the Georgia decisions. It has been held also that “the actual penetration of the virile member into an orifice of the human body, except the vaginal opening of the female, is sufficient for the establishment of the crime in question.” State v. Start, 65 Or. 178 (33 Pac. 513, 46 L. R. A. (N. S.) 366); State v. McGruder, 125 Iowa, 741 (101 N. W. 646). This, in my opinion, is the law in Georgia. See Herring v. State, supra. I do not believe sodomy can be committed under our statute without the use of the virile organ of the man.

Whether the writer is right or wrong, the members of our legislature could easily make the matter clear by a short statute making unlawful such practices as are alleged in the indictment in this ease.


text:
    9020.
    McAfee et al. v. Benson Brothers & Company.
    Decided November 14, 1917.
    Complaint; from Cobb superior court — Judge Morris. May 31, 1917.

      Mozley & Gann, Fred Morris, for plaintiffs in error.
    J. Z. Foster, John T. Horsey, contra.
   Broyles, P. J.

1. Where a storekeeper lets A have goods, on the verbal promise of B that he will see that the debt is paid, and the storekeeper charges the account to both A and B, and, upon the failure of both to pay the account, files suit against both, the contract, so far as B is concerned, must be construed as merely one of suretyship and not an original undertaking; and B’s promise to pay, not having been made in writing, is void and not binding upon him. Reynolds v. Simpson, 74 Ga. 454; Harris v. Paulk, 10 Ga. App. 334 (73 S. E. 430); Few v. Hilsman, 18 Ga. App. 207 (89 S. E. 207) ; Cordray v. James, 19 Ga. App. 156 (91 S. E. 239) ; 20 Cyc. 180, E.

2. Under the ruling in the preceding note, and the facts of this case, W. A. McAfee was not liable to the plaintiff for the debt of J. A. Mc-Afee, and the verdict against him was contrary to law and the evidence; and the court erred in refusing his motion for a new trial. , . -

3. The foregoing ruling being controlling in the case, it is unnecessary to consider the grounds of the amendment to the motion for a new trial. The costs of this writ of error ax-e taxed against the defendant in. error.

Judgment affirmed as to J. A. McAfee; reversed as to W. A. McAfee.

Bloodworth and Harwell, JJ., concur.


author: Broyles, P.' J.

text:
    9023.
    Peeples & Shepherd v. Butler, Stevens & Bell.
    Decided November 14, 1917.
    Complaint; from city court of Nashville — Judge Christian. ‘ June 11, 1917.

      Joseph A. Alexander, for plaintiffs in error.

      Hendricks, Mills & Hendricks, contra.
   Broyles, P.' J.

1. Under repeated rulings of tliis court and of the Supreme Court, a ground of a motion for a new trial complaining of the admission of testimony must be complete within itself, and not such as to require the reviewing court to refer to the brief of evidence or other parts of the record in order to determine the question of the admissibility of the testimony. A ground of a motion for a new trial which complains of the admission of certain specified testimony upon the trial of the case must state the name of the witness whose testimony is complained of. Under the foregoing rulings those grounds of the motion for a new trial which complain of the admission of certain specified testimony will not be considered. Hayes v. State, 18 Ga. App. 68 (88 S. E. 752).

2. The court did not err in directing a verdict for the plaintiffs, as, under the evidence submitted, no other finding was legally possible.

Judgment affirmed.

Bloodworth and Harwell, JJ,, eoneur.


author: HarweiupJ.

text:
    9143.
    ODUM v. THE STATE.
    1. Where an indictment was headed “State of Georgia, Bacon County,” this was sufficient to show the county for which the grand jurors were drawn and served, and of what county they were.
    2. On the trial of one charged with the offense of seduction, evidence that he endeavored to induce the female alleged to have been seduced to take medicine,, for the purpose of causing an abortion, was admissible, as tending to show that he had carnal intercourse with her.
    3. The trial judge did not abuse his discretion in allowing the case to be reopened for the introduction of additional material testimony, nor in allowing the prosecutrix, when recalled as a witness in rebuttal of the defendant’s statement at the trial, to be asked and to answer certain questions not strictly in rebuttal.
    4. There is no merit ir. the exceptions to portions of the charge of the court, or to the failure of the court to give the charge set forth in ground 5 of the amendment to the motion for a new trial.
    5. The evidence authorized the verdict.
    Decided November 14. —
    Rehearing denied November 24, 1917.
    Indictment for seduction; from Bacon superior court — Judge Summerall. June 15, 1917.

      The prosecutrix testified: “He [the defendant] began to make love to me when he had been there four or five times. He promised to marry me. I agreed to marry him, and he promised to marry me if I would submit to him. I loved him and he had made love to me. I said he premised to marry me, told me if I would submit to him he would marry me, told me that several times, told me about three months before I did submit to him that if I would submit to him he would marry me; and' it was just that way every time that he would come there. The reason I submitted to him was because I loved him, and then he promised to marry me, and I thought we would get married. I just thought we were going to marry. I believed he loved me. He just fold me that evening that if I would submit to him, and) if I thought I loved him enough, he would marry me. I submitted to him because I loved him and because he promised to marry me. I said that it was the first of July, 1914, when he was trying to persuade me to have intercourse with him; he asked me if I would submit to him, and I told him I would if he would promise to marry me. He begged me before several times, but I don’t remember how many times. We had agreed to be married when I had intercourse with him the first time. I said he begged me about three months before I yielded to him. I don’t remember exactly how long it was after he first proposed intercourse with me that I had intercourse with him. He went there about three months and begged me about three months before I submitted to him. I yielded to him because I loved him and put all kind of confidence in him. He hadn’t set no date, but he had agreed to marry me before .he had intercourse with me. I yielded to him in consequence of his promise to marry me; he knows that he promised to marry me. He knows that he promised to marry me if I would submit to him. I yielded to him because he promised to marry me, and I loved him and put all kinds of confidence in him.” There was other testimony to the same effect by the prosecutrix.

      J. Marie Wilcox, for plaintiff in error.

      M. D. Dickerson, solicitor-general, contra.
   HarweiupJ.

(After stating the foregoing facts.) 1. The indictment in-this case began as follows: “State of Georgia, Bacon County. The grand jurors, selected, chosen, and sworn for the county of-, to wit,” etc. The defendant, before pleading to the indictment, demurred on the ground that it was fatally insufficient, because the name of the. county for which the grand jurors were sworn was omitted in the indictment. It is contended that this precise question has never been ruled in this State. We call attention to the decision by the Supreme Court .in the case of Stevens v. State, 76 6a. 96, where it was held that an indictment which was headed “Georgia, Liberty County,” sufficiently showed for what county the grand jurors- were drawn and served, and of what county they were. That case was cited with approval- in Tarver v. State, 123 Ga. 496 (51 S. E. 501), and Braxley v. State, 143 Ga. 658 (1), 660 (85 S. E. 888), and we 'consider it binding authority on this court in the instant case. See also 10 Enc. PL & Pr. 428, 429; 1 Bish. Cr. Proc. 668 (2); 22 Cyc. 240 (2). The trial judge did not err in overruling the demurrer to the indictment)

2. In ground'1 of the amendment to the motion for a new trial complaint is made of the admission by the court, over objection', of conversations between the defendant and the prosecutrix, after the alleged seduction, in which he urged her to take medicine which he had obtained for her, for the purpose of causing an abortion. This testimony was clearly admissible, under the ruling in Parker v. State, 11 Ga. App. 251 (2) (75 S. E. 437).

3. The court allowed the case to be reopened, after arguments had been made by one counsel each for the State and the accused, for the purpose of admitting proof to the effect that, at the time of seduction, the prosecutrix was unmarried. “It is not an abuse of discretion, in a case in which there is direct proof that the defendant was guilty of unlawful sexual intercourse, . . to reopen the case for the purpose of supplying proof of the necessary allegation of the indictment, as to whether the parties were married or ■unmarried as alleged. Á cáse should be reopened whenever it fis 'necessary in order to obtain the truth.” Chatman v. State, 8 Ga. App. 842 (2) (70 S. E. 188). The judge did1 not abuse his discretion in this instance.

Neither did the judge abuse his discretion in allowing the) proseéxxtríx, when recalled in rebuttal of the defendant’s statement at the trial, to be asked and to answer certain-questions not strictly in rebuttal of the statement. Glasco v. State, 137 Ga. 336 (3) (73 S. E. 578))

4. The court charged the following: “The defendant, contends that he is not guilty. He says that he is not guilty of' the crime charged against him. If you find that the contentions of the defendant be true, you should acquit the defendant.” Since the judge, elsewhere in his charge, fully and correctly instructed the jury on the burden of proof, the charge quoted above did not have the effect of “casting the burden of proof upon the defendant,” as is contended in ground 3 of the amendment to the motion for new trial.

The court charged: “If you believe, from the evidence, that the defendant did have carnal knowledge of her, and if you believe she was virtuous and permitted the defendant to have carnal knowledge of her, by reason of her love for him, and persuasion and promises of marriage, he would be guilty of seduction.” It is contended that this charge is erroneous because it authorized the jury to find the defendant guilty of seduction if it appeared that the prosecutrix “permitted the defendant to have carnal -knowledge of her by reason of her love for him, and persuasion and promises of marriage,” and did not require that it appear that the prosecutrix was induced by persuasion and promises of marriage to allow the defendant to have carnal knowledge of her. There is no merit in this contention, and the charge was not erroneous for the reason complained of.

There is no merit in ground 5 of the motion, complaining of the failure of the court to give a charge therein specified; since the substance thereof was embodied in the court’s charge.

■ 5. The only other question presented is as to the legal sufficiency of the evidence. It is insisted that, the intercourse between the accused and the female alleged to have been seduced was purely the result of his premise to marry her, and that the transaction was meretricious. It is insisted that the evidence fails to show any persuasion; and counsel for the plaintiff in error cites as authority Disharoon v. State, 95 Ga. 351 (22 S. E. 698); O’Neill v. State, 85 Ga. 411 (11 S. E. 856). In the Disharoon case, supra, it"'appeared that the defendant was a married- man, and there was no evidence to show that the prcseeutrix;did not know this .fact. ■ In the O’Neill case, supra, the court held that there was-no evidence to show any persuasion. -.Hpon an examination of the ..record in the instant case it is easily distinguished from the-two .cases.,cited. In, the instant ease there is ample evidence, as will be seen by a reference to the statement of facts, to show persuasion as well as promises of marriage. We think, therefore, that the evidence is amply sufficient to authorize the verdict. See Durrence v. State, 20 Ga. App. 192 (92 S. E. 962).

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., concur.


author: Ltjke, J.

text:
    8345.
    Central of Georgia Railway Company v. Britt.
    Decided November 16, 1917.
    Action.-for damages; from Bibb superior court — Judge Mathews. December Í8, 1916.

      Jordan & Lane, for plaintiif in error.

      Herring &' Sparks, contra.
   Ltjke, J.

Britt sued' the railway company for wrongful ejection from a passenger-train, alleging, among other things, that on January 11, 1916, he boarded the train at-Loraine, in Bibb County, Georgia, in order to be carried to Rivoli in that county; that there was no ticket-office at Loraine, and passengers at that point paid the conductor in cash at the regular ticket rate or in accordance with the customary charge; that the rate of fare between Loraine and Rivoli, published and established by the railroad commission of Georgia, was eleven cents, but the customary fare was ten cents; that he tendered to the conductor the customary fare of ten cents, which the conductor refused to accept, requesting the payment of eleven cents, the fare fixed by the railroad commission; and that, in spite of notice to the conductor that the customary fare was only ten cents, the conductor wrongfully ejected him from the train. Held: The defendant was bound by law to collect eleven’cents, as the fare fixed by the railroad commission; and, the plaintiff not paying or tendering the amount so fixed, the conductor was- authorized to' eject him from the train. The court erred in overruling the defendant’s general demurrer. Savannah, Florida & Western Ry. Co. v. Bundick, 94 Ga. 775 (21 S. E. 995); Wight v. Pelham & Havana R. Co., 18 Ga. App. 195 (89 S. E. 176). See also Johnson v. Ga. R. &c. Co., 108 Ga. 496 (34 S. E. 127, 46 L. R. A. 502), This ruling is not in conflict with Phillips v. Southern Ry. Co., 114 Ga. 284 (40 S. E. 268), for the reason that in the Phillips ease the fare fixed by the railroad commission was tendered and refused, and the railroad company undertook to enforce a rule that it had a right by law to adopt, requiring passengers getting on trains without tickets to’ pay more fare than it charges to persons who purchase tickets, which rule the company had not observed, but had hitherto waived.

Judgment reversed.

Wade, C. J., and Jenkins, J., concur.