text:
    1139.
    HOBBS v. SMALL.
    The court erred in sustaining a general demurrer to a petition, in an action by a servant against his master for personal injuries received pending the employment, alleging, in substance, that the plaintiff, a boy sixteen years of age, wholly inexperienced, was put to work, without instruction or warning, upon a machine which was highly dangerous, was lacking in the usual and common safety devices employed on such machines, and was being used to do work of a character for which it was not intended, whereby it was rendered more dangerous; it being also alleged that the master knew all these things and the servant did not; that the master assured him that he could do the work at the machine all right; and that the injury occurred immediately upon his attempting to operate it and before he had the opportunity of discovering its dangers.

      Action for damages, from city court of Fitzgerald — Judge Jay. April 1, 1908.
    Submitted June 30,
    Decided July 31, 1908.

      Griffin & Griffin, McDonald & Quincey, for plaintiff.

      L. Kennedy, for defendant.
   Powell, J.

This case comes to us upon the sustaining of a general demurrer; and the .allegations of the petition are therefore to be taken as the truth of the case. The defendant, who was the owner and operator of a plant in which lumber, sashes, doors, blinds, etc., were manufactured, directed the plaintiff, a boy, sixteen years of age, who had been previously engaged at the mill in piling and hauling lumber, to assist another employee in edging boards at a jointer, which is a machine containing a set of rapidly-revolving gang-saws, a work in which the plaintiff was wholly inexperienced. In response to his command, the plaintiff told the defendant that he had never worked about machinery and did not know how to do. the work he was told to do. The defendant told him to go ahead,, that he could operate the machine all right. He was required to hold the boards in such position and to guide them with such rigidness and straightness of direction that a perfect edge should be sawed. He edged the first board without injury, but, while holding the second, the saws jerked it from the edgewise position in which it was to be held, to a flat position, and threw the boy’s left hand against the saws, and certain enumerated injuries 'resulted. The specific acts of negligence alleged against the employer are, that he knowingly put an inexperienced minor to work at a dangerous machine without warning and instructing him how to do the work with safety; also that the machine was not equipped with jointer pegs or with guides, or with such other safety devices as are in common use on such machines; that the machine was not designed and equipped for the edging of boards of the length of those being worked upon it, and that this fact contributed to bringing about the injury. There were the usual allegations as to the master’s knowledge and the servant’s lack of knowledge; the latter’s freedom from constructive or imputed knowledge being based chiefly bn his inexperience and minority.

We may leave the fact of minority out of consideration and rest our judgment on the plaintiff’s inexperience, so far as the question of the master’s duty and the servant’s assumption of the risk and his contributory negligence are concerned. In enumerating certain of,the absolute duties of the master to the servant, the Supreme Court, in the case of Moore v. Dublin Cotton Mills, 127 Ga. 615 (56 S. E. 839), said: “The master is also bound to instruct inexperienced servants, without reference to their age, in the operation of machinery and appliances with which they are nqt acquainted.” Labatt’s Master and Servant (§246) makes'the following deductions on this subject: “The mere fact that a servant was inexperienced does not entitle him to recover on the ground that he ought to have been instructed as to the dangers of the work. But it is well settled that a case in which an inexperienced servant is required to use a dangerous instrumentality stands on a different footing from one in which the same instrumentality is handled by a practised and skilful workman. One deduction drawn from the difference thus recognized is that a complaint is not subject to demurrer if the substance of the averments is that the instrumentality that caused the injury was a dangerous one, and that- the injured servant was inexperienced and had received no instruction as to its dangerous quality. Another is that the master can not be pronounced, as a matter of law, free from negligence, where the testimony fairly warrants the inference that the work in question was abnormally dangerous to an inexperienced employee, and that he had received no instruction as to the particular perils to be avoided and the proper means of avoiding them. The essential import of this rule, in a purely logical point of view, is manifestly that the plaintiff is allowed to recover, on the ground of inexperience, in many states of the evidence which, if this element were absent, would be deemed to negative the existence of any obligation to instruct, for the reason that the servant would be conclusively presumed to - have understood the dangers involved. Under such circumstances the fact that the person injured was of mature years is not decisive, but is merely a matter for the careful consideration of the jury in determining whether he fully understood and appreciated the dangers of his position.” A case similar to the one at bar in many of its juridic concepts, as well as in the character of the machine by which the injury occurred, is that of Greenberg v. Whitcomb Lumber Co., 90 Wis. 25 (28 L. R. A. 439, 48 Am. St. R. 911, 63 N. W. 93); and in that case the petition was held good against demurrer. The plaintiff’s case may also be sustained on the theory that the defendant put an inexperienced employee to work upon a machine which was dangerous because not equipped with safety devices in common usage.

In determining whether the injury arose from one of the assumed risks of the employment or from the plaintiff’s contributory negligence, it should be remembered that the servant has the right primarily to assume that the work the master instructs him to do in a particular manner can be done safely in that manner and that the machine he is required to operate is in a reasonably safe condition. The servant may rely upon this assumption without .an imputation of negligence, until such time as he shall discover, or in the exercise of ordinary diligence should discover, to the contrary. The direct order of the master to do an act, in the performance of which the servant is injured, may be shown by the servant as a circumstance tending to excuse him from that degree of caution which would lawfully be expected of him in the absence of such command. Southern Cotton Oil Co. v. Gladman, 1 Ga. App. 259 (58 S. E. 249), and cit. See also Bush v. West Co., 2 Ga. App. 295 (58 S. E. 529). Of course, as to these matters the inexperience of the servant is of highest relevancy.

Judgment reversed.


source: Caselaw Access Project

author: Powell, J.

license: Public Domain

text:
    1147.
    FUDGE v. KELLY.
    Mere breach of warranty will not authorize the rescission of a horse-swap; fraud usually will. Material false representations as to existing conditions are usually fraudulent, as contradistinguished from guarantees for the future, which are merely warranties. Barnett v. Speir, 93 Ga. 762 (21 S. B. 168) ; Johnson v. Earley, 121 Ga. 83 (48 S. E. 685).
    Trover, from city court of Miller county — -Judge Bush. February 25, 1908.
    Submitted July 2,
    Decided July 25, 1908.
    On rehearing, decided July 31, 1908.

      W. I. Geer, for plaintiff in error. P. D. Rich, contra.
   Powell, J.

(Upon rehearing.) In the original decision of this case (on which a judgment of affirmance was rendered) we made a plain, palpable error. We are glad it has been called to our attention before it is beyond our power to correct it. Indeed, in any case, there is nobody’s error that we shall be less reluctant to correct than our own, if we shall be able to see the latter in time legally to do so.

The plaintiff in this case claimed that in swapping horses with the defendant, the latter represented to him, in substance, that his animal was free from incumbrance. It appears from the record that the horse so received by the plaintiff in exchange for his own was, soon after the swap, seized by a constable, under some sort of process, and the plaintiff thereupon sued the defendant for the horse the latter had received in the trade. In the argument here both sides stressed their respective contentions as to the law governing the ease, as if there were no question that the process by which the constable seized the horse was an incumbrance upon it at the time of the trade; and on this hypothesis we decided the case. It is true, however, that the plaintiff in error in his brief has a general statement broad enough to raise the point that the plaintiff failed to make out a case. Upon a closer examination of the brief of the evidence, we find that it does not affirmatively appear that the lien or process by which the constable seized the horse was an incumbrance upon it at the date of the trade. The showing of this fact was a prerequisite to a recovery by the plaintiff; the verdict in his favor was, therefore, contrary to the evidence. The proposition of law announced in the foregoing headnote, which constituted the original opinion filed in the case, is sound; but the judgment should be reversed for the reason herein indicated. The judgment of affirmance is therefore withdrawn, and a judgment of reversal awarded instead.

Judgment reversed.


text:
    1157.
    Georgia Southern & Florida Railway Company v. Goodman.
   Powell, J.

It is essential to tlie maintenance of a certiorari from a justice’s court that the answer should show ‘that there has been a final judgment or verdict rendered; but this fact may properly appear either in the answer, in the form of a direct statement, or in any other way which will sufficiently verify it. Where, as a part of the answer, the justice sends up a certified copy of the proceedings in the court below, and a final verdict or judgment appears therein, this is a .sufficient verification of the existence of such judgment or verdict. Landrum v. Moss, 1 Ga. App. 216 (57 S. E. 965); Brown v. Atlanta, 123 Ga. 499 (51 S. E. 507). Judgment reversed.

Certiorari, from Berrien superior court — Judge Mitchell. March 25, 1908.

Submitted July 2,

Decided July 31, 1908.

Buie & Knight, for plaintiff in error.

J. W. Powell, Watts Powell, contra.


text:
    1165.
    BROWN & BIGELOW v. PARIAN PAINT COMPANY.
    After a verdict has been rendered by a jury in a justice’s court, certiorari is available to the party dissatisfied, in all cases, irrespective of the character of the questions involved or the amount in controversy.
    Certiorari, from Fulton superior court — Judge Ellis. March 21, 1908.
    Argued July 3,
    Decided July 31, 1908.

      Walter R. Brown, for plaintiff. Leonard Haas, for defendant.
   Powell, J.

A case involving issues of fact, with the amount in controversy exceeding $50, was instituted in a justice’s court. The verdict was in favor of the plaintiff, and the defendant took the case, by certiorari, to the superior court. In that court the original plaintiff moved the court to dismiss the certiorari, on the ground that certiorari does not lie to the verdict of the jury in a justice’s court, in a case involving an issue of fact, where the amount involved exceeds $50. The court overruled the motion, and also ordered a new trial. To both of these rulings exceptions are taken.

This case falls within section 9 of the “rules to determine whether certiorari or appeal is the proper remedy,” formulated and announced by the Supreme Court in Toole v. Edmondson, 104 Ga. 784 (31 S. E. 25). To quote, “After a verdiót has been rendered on appeal in the justice’s court, certiorari is available in all cases without reference to the character of the questions involved.” This is but a paraphrasing of section 4149 of the Civil Code, which provides that “when either party is dissatisfied with the verdict of a jury in any appeal case tried in the justice courts, such party may apply for and obtain a writ of certiorari,” etc. The cases cited by the plaintiff in error — Ansley v. Farley, 126 Ga. 425 (55 S. E. 180), Cook v. Exom, 125 Ga. 450 (54 S. E. 147), and Benton v. Hynes, 100 Ga. 95 (26 S. E. 469) — refer exclusively to the rights of the losing party as to the trial before the magistrate or county judge, and not to his right in the event of an adverse verdict in the justice’s court.

To admit that the case involved a dispute of fact is to admit the right of the judge of the superior court to grant one new trial upon certiorari. Bailey v. Hooks, 1 Ga. App. 276 (57 S. E. 924); Fair v. Insurance Co., 2 Ga. App. 376 (58 S. E. 492); Walker v. Hughes, 120 Ga. 1079 (48 S. E. 387). Judgment affirmed.


author: Russell, J.

text:
    1168.
    JOHNSON v. PERKINS.
    1. In all cases of bailment, after proof of loss, the burden of proof is on the bailee to show proper diligence.
    2. An unreasonable, improbable, or impossible explanation of an injury which has been sustained by property of the bailor while in the hands of the bailee may be equivalent to an admission of liability. In any event, such an explanation, as well as no explanation, may be held by a jury to be a failure on the part of the bailee to show proper diligence towards the property entrusted to his care. Where a horse is delivered in good condition to a blacksmith to shoe, and shortly afterwards the horse is found still in his possession, badly cut, the presumption of negligence on the part of the bailee arises, which will authorize liability for the injury to be fixed on him, unless that presumption be rebutted to the satisfaction of the jury.
    3. The evidence, though meager, supports the verdict, and there is no room for interference by this court with the discretion of the trial judge, who approved it.
    Appeal, from Morgan superior court — Judge Lewis. April 22, 1908.
    Argued June 14,
    Decided July 31, 1908.

      F. C. Foster, for plaintiff in error. Q. L. Williford, contra.
   Russell, J.

Perkins, a liveryman, brought a suit in tbe county court against Johnson, a blacksmith, to recover damages for an alleged negligent injury to a horse which the defendant had engaged to shoe; it being alleged that the horse, while being shod, received an injury from which he afterward died. The case was-appealed to the superior court, and resulted in a verdict in favor of the plaintiff, for $150. Exception is taken to the judgment of the superior court, overruling-a motion for new trial, based upon the general grounds.

The material allegations of the plaintiff’s petition are, that on July 21, 1905, Perkins carried his horse to the defendant’s shop to be shod; that, while it was being shod, Eiley Cash, a regular employee of the defendant, who was accustomed to aiding the defendant in shoeing horses, “did negligently, carelessty, and without cause cut, with a knife or other sharp instrument, the side of said horse, making a very serious and terrible wound, and that said horse died from said wound, on August 3, 1905.” The evidence for the plaintiff tended to show, that Perkins carried his horse to the defendant’s shop to be shod, and that after a time he-returned and found a deep gash or cut in the left side of the horse, about three inches long, just in front of and even with small bone which projects at the top of the hip. The horse was cut to the hollow. Eiley Cash, the helper (it" appearing that the proprietor, Berry Johnson, was absent), was asked about the cause of the wound, and stated to Perkins that he did not know the cause. The doctor was summoned, and stitched up the wound. Two or three days later, Eiley’ Cash stated that the horse must have gotten cut when he fell back on him, while he was paring its foot. The physician who was called in gave the horse good medical treatment, and the wound began to close up, but the action of the horse showed that it was in pain. It threw its head to its left side, and could not carry its left hind foot forward with ease, gave way on the left side, and, when the stitches were cut after several days, quite a quantity of pus ran out, and the wound had to be washed for a number of days. On the twenty-ninth day after the horse received the cut, it was ridden (very slowly, according to the testimony for the plaintiff, and, according to evidence for the defendant, in a gallop) eight and one half miles into the country, and, on the way back, died. The value of the horse, care, attention, loss of service, and physician’s bill were shown. This constituted the evidence in behalf of the plaintiff.

The evidence was uncontradicted that the person who took the horse in charge to shoe him was the servant of the bailee, or blacksmith, who was employed by -the bailee for that purpose. The evidence, therefore, put the horse into the possession of the bailee in good condition. When it was shown that he was injured while in possession of the bailee, the bprden of proof was shifted, and it devolved upon the defendant to show that the damage that resulted was not due to negligence on his part. The learned counsel for the plaintiff in error attacks the judgment refusing a new trial, upon the general grounds only, and insists that the plaintiff failed to make out a case, because the evidence does not clearly show that Cash, the servant of the defendant, intentionally injured the horse. Under the Civil Code, §3896, it did not devolve upon the plaintiff to show that the blacksmith, or his servant, cut the horse and thereby damaged the plaintiff. On the contrary, when the injury was shown, it devolved upon the blacksmith, as bailee, to show that injury could not have been prevented by proper diligence; that it was due to no neglect on his part. And if the defendant failed to make this showing, to the satisfaction of the jury, the plaintiff was entitled to recover upon mere-proof that the cutting was done while his horse was in the care of the blacksmith, or of his servant employed by him for the-purpose of shoeing horses. "In all cases of bailment, after proof of loss, the burden of proof is on the bailee, to show proper diligence.” Johnson v. State, 58 Ga. 396, 397; Central Ry. Co. v. James, 117 Ga. 833 (45 S. E. 223); Tuggle v. State, 119 Ga. 969 (47 S. E. 577); Heidt v. Southern Tel. & Tel. Co., 122 Ga. 476 (50 S. E. 361); Morris Storage Co. v. Wilkes, 1 Ga. App. 751 (58 S. E. 232).

It must be conceded, then, that if the plaintiff showed thafchis horse was cut while in the possession of the blacksmith, and that he died from the wound, without more, he. would be entitled to a recovery. The defendant attempted to explain the presence of the wound in the horse’s side. Eiley Cash testified that he was-on the right-hand side of the horse, with his face towards the horse’s hip, and paring his right forefoot, when the horse gave way,, fell on him, and in an unaccountable way was cut. The jury had uncontradicted testimony that the cut was right at the point of the left hip-bone. It would seem, by all physical laws, that it was impossible, under these circumstances, for the cutting to have-taken place in the manner described by the horseshoer, and the jury had the right to say that this explanation was ill-founded and unsatisfactory. It may have been a significant fact to the jury also that the witness, when first questioned in regard to the matter, stated that he did not know how it occurred, when he must have known as well at that time as he did when he subsequently testified. An unreasonable, improbable, or impossible explanation •of an injury, sustained by property of the bailor while • in the hands of the bailee, may be equivalent to an admission of liability. In any event, such an explanation, as well as no explanation, may be held by a jury to be a failure on the part of the bailee to show proper diligence towards the property entrusted to his ■care. Where a horse is delivered in good condition to a blacksmith to shoe, and shortly afterward the horse is found to be in his possession, badly cut, the presumption of negligence on the part of the bailee arises, which will authorize liability for the injury to be fixed on him, unless the presumption be rebutted to the satisfaction of the jury.

We think the evidence supported the verdict. We have already dealt with the fact that the jury could with propriety come to the conclusion that the injury was due to the negligence of the bailee or his servant, if the explanation of the cutting was not satisfactory to them. But it is insisted that there is no proof that the death of the horse was the result of the injury, and also that the verdict of the jury was for less than the amount of damage shown by the proof. - We think the jury were authorized to conclude, from the evidence, that the cut caused the death of the horse. He was cut to the hollow, and gave evidence of pain, according to some of the testimony, up to the time of his death. Mr. Htsey testified that while the horse had before been a free-driving horse, he became too sluggish for his use, after the wound. He testified, it is true, that in his opinion sluggishness might be produced by over-feeding and other causes, but there was no evidence that the causes which were suggested had supervened. There was a conflict in the evidence as to the speed at which the horse was ridden the day he died. If the jury had believed the witness who testified that the horse was being ridden in a gallop on a very hot day, the jury might have been in doubt as to the cause of death, or might have disbelieved that the death of the horse was caused from the wound. But the jury had just as much. right to believe tbe testimony in rebuttal of this, and that the-horse was ridden very slowly the day he died, requiring several hours to make a few miles, and, therefore, in view of other circumstances in the case, that death resulted from the wound, and not from the ride. The jury were not compelled to find the full amount proved by the plaintiff. They were the exclusive judges of negligence and its degrees. But if they erred in the amount of their finding, the defendant can not complain that they found less against him than they should have found. Ellis v. U. S. Fert. Co., 64 Ga. 571; Mullins v. Murphey, 69 Ga. 754; Roberts v. Rigden, 81 Ga. 740 (7 S. E. 742); Taylor v. Gilmore, 3 Ga. App. 93 (59 S. E. 325). Judgment affirmed.


text:
    1171.
    1183.
    BOARD OF EDUCATION OF MILLER COUNTY v. FUDGE et al. WILLIAMS v. BOARD OF EDUCATION OF MILLER COUNTY.
    1. Funds derived by county boards of education from borrowing money-are not included in county school funds, and the' proper receipt and disbursement of such borrowed money is not one of the duties of a county school commissioner by virtue of his office.

      (a) A contract of suretyship is to be strictly construed in the interest of the surety. The risk of a surety on a county school commissioner’s-bond may be increased by his being entrusted by the county board of education with large sums of money to be disbursed under its orders, which moneys were not received as part of the common-school fund, nor at the times provided by law for the payment of such fund.
    (b) Sureties upon the bond of a county school commissioner are not liable, upon a bond providing for the faithful discharge of his duties, for any moneys borrowed by such county board of education. In the-case of loans to county boards of education the entire transaction is individual, and not official.
    2. In a case where an action can not be maintained against the sureties, on an official bond, because the malfeasance or dereliction of duty of' their principal is personal, and not official, neither can the action be maintained upon the contract as against the principal, though lie-may, in an action of a different nature, be individually liable.
    3. The power to make arrangements for the efficient operation of. schools, conveyed by § 1363 of the Political Code, does not include the power to borrow money.

      Action, on bond, from city court of Miller county — - Judge Bush. February 27, 1908.
    Submitted July 14,
    Decided July 31, 1908.

      Bush & Stapleton, Russell & Hawes, for plaintiff.

      Pottle & Glessner, Perry D. Rich, R. W. Grow, for defendants.
   Russell, J.

The writs of error in these two cases will be considered together, for the reason that the questions in each arise upon the consideration of the same petition. The county board of education of Miller county brought suit against the county school commissioner and the sureties on his official bond, for an alleged misappropriation of school funds. The material portions of the petition allege, that Williams, being elected as county school commissioner, executed a bond for the faithful discharge of all and singular the duties required of him by virtue of his office as county school commissioner, with Phillips, Fudge, and Ball as ¡securities. The bond upon which the suit was based was for the sum of $4,000, payable to the county board of education and their successors in office. The condition of the bond is in the following language: “Whereas, the above bound J. E. Williams was, on the 6th day of February, 1904, elected county school commissioner of Miller county for the years 1904, 1905, 1906, and 1907, ?and during the term pointed out by law, the condition of the above obligation is such that if the said, J. E. Williams shall faithfully discharge all and singular the duties required of him by virtue of his said office as aforesaid, during the -term he continues therein or discharges any of the duties thereof, then the above obligation to be void, otherwise to remain in full force and virtue.” The petition further alleges, that during the year 1905, ••$3,835.50 was paid to the county school commissioner, of which $1,935.50 was paid in checks from the State school commissioner, and $1,900 in cash, borrowed by the county board of education from the First. National Bank of Colquitt, it being alleged that all of this money was for school purposes, — was part of the school fund of, the county, and was accepted by Williams as part of the .school fund of the county. In the 7th paragraph of the petition it is further alleged, “that at the time the said board of education -of Miller county borrowed the $1,900 from the First National Bank of Colquitt, same being the money borrowed and referred ■-to in paragraph 5 of this petition, there was then due Miller county from the State of Georgia, from the school fund, the sum cf $3,137.74; and said money borrowed from the First National JBank of Colquitt by your petitioner was borrowed to take the place of money that had been appropriated to Miller county for school purposes, but which had not been delivered to said county by the State of Georgia; that said amount was to be delivered, and was a definite and a certain and settled sum, and the money borrowed was secured by your petitioner as an advance on the amount due and unpaid by the State of Georgia.” The petition then proceeds to say that the principal, Williams, has accounted for only $2,913.35 of the above-stated amount, leaving a balance of $929.15; for which demand is alleged to have been made, which the county, school commissioner has failed and refused to deliver and account for. Upon the foregoing statement of facts a-breach of the bond is alleged, and the liability of the principal and the sureties, for the sum of $929.15, is asserted. To this petition the sureties demurred, and Williams orally moved to dismiss the same, upon the ground that it set forth no cause of action.

We think the lower court properly sustained the demurrer interposed by the sureties, and' erred in not dismissing the action as to the principal. In our opinion the petition set forth no cause of action on the bond sued upon, either against the principal or the sureties. It may be that the county school commissioner is liable to the board of education, if he received any money as their agent and misappropriated it; but, under the allegations of the petition, he is not liable upon this contract, any more than his sureties upon the bond. The only obligation in the bond is that J. R. Williams “shall faithfully discharge all and singular the duties required of him by virtue of his said office;” and the period for which he is bound to perform these duties, as we construe the meaning of the bond, is during the term he continues therein or during which he discharges any of the duties thereof. We can not agree with the contention of the counsel that the bond was void if Williams discharged “any of the duties thereof.” These words naturally refer back to the words “during the term.” The obligation of obligors on a bond is to be strictly construed, and we have no hesitation in holding that the bond bound Williams and his sureties to discharge only “all the duties required of him by virtue of his office.”

We come, then, to the inquiry, in the first place, what are the duties required of a county school commissioner by his office, so far as the matters alleged in this petition are concerned? The duties of a count3 school commissioner áre varied in their nature. Some involve the care and expenditure of money, and others do not concern matters of finance. The county school commissioner is the custodian and the disbursing agent of the common-school fund in his county. He has a duty in reference to these funds, which is included in the duties mentioned in this bond. But the common-school fund is expressly defined in our code. Political Code, §1384. Money borrowed by the county board of education is not included within the terms of §1384, and, therefore, the county school commissioner, as such, has no duty devolving upon him, either as to the safe-keeping or proper disbursement of money borrowed by the county board of education. The county board of education has no right to borrow money. Paragraph 1 of section 7, article 8 of the constitution of the State, which is-cited by counsel, has no possible application to a countj'- board of education. Its meaning can not be extended beyond its terms. The county board of education can not incur a new debt which is temporary, or settle a casual deficiency, under the provisions of this clause of the constitution, because the board of education is neither a county nor a municipality, nor a political division of the State.

In Mason v. Commissioners, 104 Ga. 35 (30 S. E. 513), the sureties on the bond were held free from liability for borrowed money which had been turned over to the county treasurer. Certainly if, under the facts of that case, as well as those in Hall v. Greene County, 119 Ga. 254 (46 S. E. 69), it could be held that the sureties and the county treasurer were not liable for money borrowed by a county, there should be no difficulty in holding that the sureties and the county school commissioner are not liable for money placed in the county school commissioner’s hands, which has been borrowed, not by the county or county commissioners,, but by a board of education. The borrowing by these members, of the county board of education was simply an individual undertaking, and the money obtained was money for the payment of which they were individually liable, and which they individually turned over to the county school commissioner as an individual and as their agent. Not only did the placing of these private funds in the hands of Williams tend to increase the risk of the sureties on his bond, for the reason that the sureties naturally based their liability on the amounts only which it was presumed would be received quarterly from the State, and not upon other amounts which might be borrowed and thereby increase the amount of money handled by the county school commissioner, but they did not assume and perhaps would have declined to assume liability for Williams’ disbursements, except those stipulated in the bond. The obligation in the bond to discharge all the duties of the office of county school commissioner was the only obligation the sureties assumed. Williams’ duties as county school commissioner were all that were in contemplation of the parties. The liability of sureties is always one of strict law. . Sureties can not be held bound unless the law is strictly complied with. So far as the liability of the sureties for public money in the hands of the county school commissioner was concerned, the sureties had the right to expect that Williams would not have in his possession anything hut the common-school fund of the county, made up from the sources provided by law. Legally stated, they knew that this money was turned over to Williams, under the statute, quarterly, and in comparatively small amounts. It would not be paid until the county board already owed it and the commissioner would have to disburse it almost immediately. Under the operation of the law, the money to be sent by the State school commissioner hardly has time to reach the county school commissioner before it must be disbursed; and under the allegations of this very petition, it appears that all the money that was sent by the State school commissioner was properly disbursed by the county commissioner. We have no hesitation, therefore, in holding that the demurrer, on the part of the sureties, was properly sustained, for to hold otherwise would be to create a liability not contemplated by the contract, judged by its express terms, as well as to cause these sureties to incur a risk greater than they assumed.

The reasons which have controlled our judgment as to the sureties impel us to hold that the court should have also dismissed the action as to the principal on the bond. We do not mean to say that if the allegations of the petition are true, Williams, as an individual, may not be liable in a proper action for money had and received, but we do hold that, under the allegations of the petition, the money which he is alleged not to have accounted for he did not and could not receive as county school commissioner; that his bond is merely for the faithful discharge of the duties of his office, and that as the petition alleges that he has accounted for more than the amount received as county school commissioner, failure to account for a balance of money borrowed by the members of the corner board ma3 be private malfeasance, but can not be a breach of official duty.

Counsel for the county board of education insist that, having received money by reason of a loan made to a county board, the treasurer, upon the principle announced in Mason v. Commissioners, supra, was estopped to question the validity of the authority under which the money was so collected and received. The decision in the Mason case rests upon its own particular facts. Importance was attached in that case to the fact that Mason assisted in borrowing a large portion of tlxe money himself, signing the notes officially as county treasurer. Whether the principle laid down in Mason’s case is sound or not, there are two great differences between the facts in that case and in this. In the first place, county commissioners of a county have broader powers for borrowing mone3 than a county board of education; and it does not appear, in the next place, that Williams signed any of the notes for the mone3 borrowed in this case. The motion to dismiss was well taken, however, regardless of the principle announced in the Mason case, because even though Williams should be estopped to challenge the validity of the loan, he is not estopped to say that he is not liable on the contract sued on, for the reason that, in the particular obligation which is the basis of the suit, he did not undertake to receive or disburse any mone3 other than that which came within the province of his duty as county school commissioner.

Counsel for the county board of education insist that the borrowing of money to pay teachers is authorized by section 13G3 of the Political Code. The language relied upon is that portion of the section which gives county boards of education power to make all arrangements necessary to the efficient operation of the schools. The spirit and language of our constitution is such' that unlimited power to borrow money can not be inferred from this language. If the legislature had power to authorize county boards of education, in their discretion, to create indebtedness, they would doubtless have exercised this power in express terms, and not place it simply in connection with other arrangements, which do not call for the raising of funds, but pertain solely to the expenditure of money for such things as are necessary in the conduct of schools,— “maps, globes, and school furniture.”

Judgment in 1171 affirmed, in 1183 reversed.

Powell, J., disqualified.


text:
    1218.
    Cordele Grocery Company v. Thigpen et al.

    Complaint, from city court of Abbeville — Judge Nicholson. May 14, 1908.
    Submitted July 16,
    Decided July 31, 1908.

      Hal Lawson, for plaintiff. M. B. Cannon, for defendants.
   Powell, J.

This case is controlled by Cloud v. Scarborough, 3 Ga. App. 7 (59 S. E. 202). Where a mortgage on the property oí the principal debtor is taken simultaneously with the creation of the suretyship, the creditor owes to the surety the duty of having it properly probated and recorded within a reasonable time, and a failure to do this relieves the surety. Judgment affirmed.


text:
    1224.
    McLAREN v. THE STATE.
    1. In a prosecution for perjury it is permissible to join in a single count of the indictment a number of separate and distinct material statements alleged to have been falsely sworn to by the defendant in the same legal investigation.
    2. On the trial under an indictment for perjury it is not necessary to prove that the defendant made literally the statement alleged; for it is well settled that only the substance of the language used by the witness in the prior judicial investigation, in which he is alleged to have sworn falsely, need be proved.
    3. It is not necessary to the conviction of the defendant, on an indictment setting forth several distinct false statements, that the State should show the elements of perjury as to each and all of the statements so alleged; but if perjury is established as to any one of the statements which is material, a conviction may be upheld.
    4. The evidence was sufficient to authorize the conviction.

      Indictment for perjury, from Campbell superior court — Judge Roan. April 24, 1908.
    Argued June 30,
    Decided July 31, 1908.

      Claude C. Smith, for plaintiff in error.

      William Schley Howard, solicitor-general, contra.
   Russell, J.

The plaintiff in error excepts to the overruling of his motion for new trial, which was based upon general grounds only. The offense of which he was convicted, was that of perjury. In the indictment it was alleged, that he had wilfully, knowingly, absolutely, and falsely testified before the grand jury of Campbell county (the grand jury having under consideration at the time a special presentment charging one Mahaley Ross, alias Stinchcomh, with the illegal sale of whisky), as follows: “I did not furnish, five pennies to John Henry Chandler to buy any whisky at any time in Mahaley Ross’s house; I did not get any whisky from anybody in Mahaley Ross’s house;. I never saw any whisky in Mahaley Ross’s house; I never tried to buy any whisky with anybody in Mahaley Ross’s house; I did not see any money pass for whisky in Mahaley Ross’s house; I did not buy any whisky from Mahaley Ross;” when in truth and in fact the said Henry McLaren did 'furnish five pennies to John Henry Chandler for the purpose of buying whisky in Mahaley Ross’s house, and did buy whisky in the said Mahaley Ross’s house; and he did then and there get whisky in the said Mahaley Ross’s house; and he did then and there see whisky in Mahaley Ross’s house; and he did then and there buy whisky with John Henry Chandler in said Mahaley Ross’s house; and he did then and .there see money pass for whisky in said Mahaley Ross’s house; and he did buy whisky from Mahaley Ross; the said evidence being then and there material, etc. It is insisted that the verdict of guilty is unauthorized, because the State could not in the same indictment charge six different statements, as being false, each of them alleged to be material, without preferring the charge in separate counts. It is also insisted that the verdict wae not authorized by the evidence, because the testimony did not show that the defendant, when a witness before the grand jury, used the identical language in the indictment; and further, that the conviction was' unwarranted by the evidence, because the State failed to prove each and all of the six false statements set forth in the indictment. It is further insisted that some of the statements set forth in the indictment, as attributed to the defendant, were only proved by one witness, and that other of the facts as to which it is alleged the defendant swore falsely were not material to the issue under investigation before the grand jury.

The objection that the indictment contained more than one offense in a single count can not be raised by motion for new trial, if, indeed, it could be considered at all. No demurrer appears to have been filed to the accusation, but we really, see no reason, where a party in one and the same judicial investigation swears falsely as to more than one material matter, why all of such false testimony with reference to the same matter may not be joined in a single count. In the present case each of the -six: charges of perjury could be thus joined, because the subject-matter was all material to the guilt or innocence of Mahaley Eoss of the offense of selling intoxicating liquors unlawfully, a presentment against whom was then being considered by the grand jury. The evidence sought from the witness, as may be deduced from each of the six charges of perjury, was material, — some of them would have shown the guilt or innocence of Mahaley Eoss directly, while others, if the questions had been answered differently by the witness, might at least have tended to induce a presentment which is only an ex parte proceeding. “The question whether or not a particular statement is material will obviously depend upon the nature of the proceeding and the matters at issue, and can be determined in each case for that case only.” 22 Am. & Eng. Enc. Law (2d ed.), 686, citing Robertson v. State, 54 Ark. 604 (16 S. W. 582); State v. Schultz, 57 Ind. 19; State v. Clough, 111 Iowa, 714 (83 N. W. 727); State v. Wakefield, 73 Mo. 549; Lawrence v. State, 2 Texas App. 479. “The test of materiality is whether the statement made could have influenced the tribunal upon the question- at issue before it. Any statements made in a judicial proceeding for the purpose of effecting the decision, and upon which the judge acted, are material.” 22 Am. & Eng. Enc. Law (2d ed.), 687. See also Salmons v. Tait, 31 Ga. 676; 6 Words & Phrases Judicially Defined, 5309, 5310, par. 3 and 8; also Haines v. State, 109 Ga. 526 (35 S. E. 141).

As to the insistence that the evidence failed to show that the defendant, when a witness before the grand jury, used the identical language attributed to him in the indictment, it is well settled that only the substance of the language used by the witness in the prior judicial investigation, in which he is alleged to have sworn falsely, need be proved. The exact words of the prisoner need not be proved, provided the substance of his testimony is given. Taylor v. State, 48 Ala. 157; State v. Frisby, 90 Mo. 530 (2 S. W. 883); People v. Burroughs, 1 Parker’s Crim. Rep. (N. Y.) 211; Commonwealth v. Terry, 114 Mass. 263.

It is further insisted by the plaintiff in error that the verdict of guilty is unsupported by the evidence and .unauthorized, because the State failed to prove all of the particulars wherein perjury was alleged in the indictment. As the crime charged related to onty one criminal transaction, which would be complete if committed in any one of the ways alleged, sufficient proof of the falsity of the oath as to only one of these particulars would authorize the conviction of the defendant in this case. "Where the indictment contains several distinct charges of perjury, proof of any one of them is sufficient.” 22 Am. & Eng. Enc. Law (2d ed.) 694; Smith v. State, 103 Ala. 57 (15 So. 866); Marvin v. State, 53 Ark. 395 (14 S. W. 87); State v. Day, 100 Mo. 242 (12 S. W. 365); State v. Blaisdell, 59 N. H. 328; State v. Hascall, 6 N. H. 352; Harris v. People, 64 N. Y. 148; Moore v. State, 32, Texas Crim. 405. And while we have been unable to find the same holding in any criminal case.in this State, the ruling in Salmons v. Tait, supra, clearly sustains the principle which we now assert.

We come then to consider, under the rules stated above, whether it is demonstrated by the record that the guilt of the accused, as to any one false statement in regard to a matter material, in the investigation pending before the grand jury, was proved, beyond a reasonable doubt, to have been wilfully, knowingly, absolutely, and falsely made by the defendant. The ancient rule of the common law required the testimony of two witnesses, both directly contradicting the testimony' previously delivered by the prisoner, in order to authorize a conviction of perjury; the reason assigned being that the testimony of one witness would merely be one oath against another. Our code, however, in making perjury an exception to.the general rule that the testimony of a single witness is generally sufficient to establish a fact, provides that corroborating circumstances may dispense with the second witness. Section 991 of the Penal Code is as follows: “The testimony of a single witness is generally sufficient to establish a fact. Exceptions to this rule are made in specified cases, such as to convict of treason or perjury, and in any case of felony where the only witness is an accomplice; in these cases (except in treason) corroborating circumstances may dispense with another witness.” So that one witness and corroborating circumstances, if the corroboration be sufficient, may, in cases of perjury,, serve to establish the falsity of the previous testimony delivered by the accused, as well as to establish the substance of such previous testimony. Indeed, in several jurisdictions, it has been held that only one witness is required to prove the fact that the accused swore on a prior judicial investigation as charged. U. S. v. Hall, 44 Fed. 864; State v. Wood, 17 Iowa, 18; State v. Jean, 42 La. Ann. 946 (8 So. 480); People v. Hayes, 140 N. Y. 484 (35 N. E. 951, 23 L. R. A. 830, 37 Am. St. R. 572); Commonwealth v. Pollard, 12 Metcalf (Mass.), 225. It is unnecessary for us to hold in the present case that this rule should prevail in this State; because two witnesses testified in accord, as to several material allegations contained in the indictment, that the defendant swore substantially as charged; and the defendant, in his statement, so far from denying that he had testified before the grand jury as charged in the indictment, practically admitted that he did testify as charged, and insisted that his former testimony was true.

Then, was the evidence sufficient to show that the defendant testified falsely as to matters material to the first investigation? We think that it was established by two witnesses, (1) 'that the defendant furnished five pennies to John Henry Chandler (at a designated time within the statute of limitations) to buy whisky in Mahaley Ross’s house; (2) that he did get some whisky from another person in Mahaley Ross’s house, and (3) that he saw whisky in Mahaley Ross’s house. These facts, if true, even though they might not be sufficient to authorize the conviction of Mahaley Ross of the offense of selling whisky, if she were on trial, were nevertheless material in the investigation of the evidence before the grand jury; because, in connection with other evidence, each of these facts might tend to induce the grand jury to find a presentment (which is merely the means of putting a defendant on trial), even if indeed the.same evidence, if Mahaley Boss had been upon trial, would not have authorized her conviction. It must be borne in mind too that as to the presentment pending against Mahaley Boss, her guilt could have been shown just as conclusively by evidence of a sale to John Henry Chandler as to the defendant himself; and, for that reason, the fact as to furnishing money to Chandler, with which Chandler bought the whisky, might be as important as if he had himself purchased the whisky. As to the testimony of„ the defendant as alleged in the indictment, that he did not buy any whisky from Mahaley Boss, the only difference between this and the testimony of two witnesses introduced on the part of the State as to what really transpired was, that he did not buy the whisky alone, but bought it jointly with John Henry Chandler, he contributing five cents and Chandler twenty cents, and that for this twenty-five cents the whisky was brought in the room and delivered by Mahaley Boss, and partaken of, both by the defendant and Chandler, the two who had furnished the money to pay for it. This slight difference between purchasing alone and' purchasing conjointly with another, when the sole material issue involved was whether Mahaley Boss sold whisky illegally, is insufficient to authorize a holding that the verdict of guilty is unsupported by the evidence. This feature of the ease is practically identical with the facts in People v. Burroughs, 1 Parker’s Criminal Beports, 211. In that case it was held, that on a trial of a defendant for perjury in giving testimony that F. had taken usury in discounting a promissory note, it was sufficient, in the indictment, to allege that it became a material matter whether F. discounted said note, and whether he took usury in discounting it, and then to set forth particularly the testimony of the defendant on these points, and the facts as they actually existed. It was further held, that an averment in an indictment, that the defendant was sworn as a witness between the bank and J. B., is sustained by proof that the defendant was sworn in a suit by the bank on a promissory note by J. B., the indorser, and F. McF. and the defendant as joint makers.

We think that the conviction was sustained by the law and the evidence, and for that reason the court did not err in overruling the motion, based solely upon the general grounds.

Judgment affirmed.


text:
    1233.
    STAPLES v. THE STATE.
    The evidence authorizes the verdict; no reversible error of law appears.
    Indictment for burglary, from Polk superior court — Judge Edwards. April 21, 1908.
    Argued June 30,
    Decided July 31, 1908.
    W. A. James, for plaintiff in error.
    W. K. Fielder, solicitor-general, contra.
   Powell, J.

The defendant was convicted of burglary; and the evidence is ample to sustain -the conviction. Several of the grounds ( of the motion for a new trial, especially those relating to rulings upon testimony, are not stated with that accuracy essential to a review by this court. None of the other exceptions are meritorious; at least none of them present any error of sufficient importance to justify a reversal. Judgment affirmed.


text:
    1238.
    1260.
    THOMPSON, alias EAKER, v. THE STATE. BARTON v. THE STATE.
    1. When a crime has been committed which, from its nature or the details of its commission, necessarily or probably involved the participation of more than one person, it is permissible for the State to prove, on the trial of one of the persons charged with committing it, that, shortly after the crime was committed, he was seen in company with another person and that this other person was, by the circumstances of the case and by the indicia of guilt found upon him, connected with the crime.
    2. Upon reasonable grounds for his suspicion, a police officer may, without warrant, arrest a suspected felon apparently attempting to escape, and, after such an arrest, may subject the clothing of the prisoner to a reasonable search. Evidence of crime so obtained is not inadmissible against the defendant on the ground that he is thereby compelled to disclose evidence against himself.
    3. To render evidence inadmissible on the ground that the prisoner was compelled to produce it against himself, it must appear that such compulsion was used as to rob the prisoner of volition in the matter.
    4. Evidence which bears a distinct relevancy to the ease on trial is admissible against the defendant, though it tends to show also his complicity in another crime.

      5. Where a defendant has been convicted of burglarizing a bank, and attempts to have the verdict set aside on the ground that, unknown to him, one of the jurors who tried him was related to a stockholder in the bank, the juror is incompetent to testify to the alleged relationship^ The evidence submitted in support of the attack must be such as to-show not merely that at the time of the hearing of the motion for a, new trial the asserted relationship existed, but definitely that it existed at the time of the juror’s service.
    6. The trial was free from error; and the verdict is supported by the evidence.
    Indictments for bnrglaiy, from Taliaferro superior court— Judge Worley. April 8, May 6, 1908.
    Argued June 14,
    Decided July 31, 1908.

      W. N. Maltbie, J. A. Beazley, B. W. Wall, for plaintiffs in error.

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

These defendants were separately tried and convicted of burglary. The banking house of the Bank of Sharon was broken in the nighttime and the safe blown open by the use of explosives. A few hours later, these two men boarded the train of the Georgia Eailroad, at a' station near Sharon; circumstances raised a suspicion of their complicity in the burglary, and, upon telegrams, a member of the Augusta police force came upon the train at that point and arrested them as they were leaving it. They were searched, and large pistols and an unusual number of cartridges were found upon them; also on one of them was found a piece of soap corresponding in character to that used in blowing the safe. As they left the train one of them was seen to drop a package, which, upon examination, proved to contain dynamite fuses. They were brought back and placed in the jail of Taliaferro county, the county in which the crime was committed. The cashier of the bank, who was acting as prosecutor, asked the sheriff to get him a left shoe from each defendant. The sheriff, without disclosing his purpose, told the men, each, to give him a shoe. Being handcuffed, they simply lifted their feet, and allowed the sheriff to take off their shoes. The witness who testified to this transaction stated unequivocally that no coercion or intimidation was used to procure the shoes. The shoes so obtained were fitted into the tracks near the bank, and, by the correspondence thus established, furnished damaging evidence against the prisoners. When the defendants were arrested at Augusta they claimed to be railroad conductors, and Thompson gave his name as Eaker; producing, in corroboration of his statement, a railway pass, a membership card in a fraternal order, correspondence, etc., bearing the name of J. II. Eaker. On the trial the-true J. H. Eaker appeared and testified, that the pass, membership card, etc., were his, and that they had been taken from a satchel in his room at Rock Hill, S. C., a few days before the burglary was committed at Sharon. The prisoner abandoned his contention that he was conductor Eaker and admitted that his name-was Thompson. To the overruling of a motion for a new trial each defendant excepts. The grounds are numerous and will not be taken up seriatim, but a few general rulings will be announced, sufficiently broad to cover them all.

Throughout several of the exceptions, presented in one form or another, is the point that on the trial of each of these defendants the court admitted testimony which tended to indicate the-guilt of the other. The contention is made that the defendants were separately tried, were not charged as conspirators, and no-conspiracy between them was shown, and that therefore the indiciá of guilt which tended to incriminate one of the prisoners-were not relevant on the trial of the other. When a crime has been committed which from its nature or the details of its commission necessarily or probably involved participation of more than. one person, on the trial of a defendant accused thereof it is relevant and permissible to show, in connection with other incriminating circumstances, that he was found in company with another person, to whose guilty connection with the transaction the circumstances point. If the particular defendant on trial had been found 'with a bag soon after the commission of the crime, it certainly would have been relevant to prove that an investigation into it revealed that it contained burglar’s tools. Just so when, soon after the burglary, he was seen in company with a man, and an investigation showed that this companion likely was one of the participants in the burglary; the very association became a pertinent link in the chain of circumstances showing his own complicity in the crime. His connection with one of the animate agencies through which the crime was probably commuted was as relevant a matter of investigation as would have been his connection with an inanimate agency. Every circumstance which tended to show that the two prisoners were part and counterpart in the personnel, so to speak, of the crime (in which from its nature and manner of commission more than ’one participant must have been involved) heightened the relevancy, as to each of them, of every guilty badge found upon the other.

The point is made that the evidence obtained through the search of the persons of the prisoners by the police, upon their arrest at Augusta, was inadmissible,- — -that the arrests, having been made without warrant, were illegal, that the search and seizure were unlawful, and that the defendants were thereby compelled to furnish evidence tending to criminate them, in violation of the constitutional guarantee, as construed in the decisions of this court in Hammock v. State, 1 Ga. App. 126 (58 S. E. 66), and other similar cases. The arrests were not unlawful. By the Penal Code, §896, an officer may arrest without warrant if the offender is endeavoring to escape. The right to arrest, without a warrant, a suspected person apparently about to escape is broader in felony than in misdemeanor cases. Robinson v. State, 93 Ga. 77 (18 S. E. 1018, 44 Am. St. R. 127); Johnson v. State, 30 Ga. 426; Harrell v. State, 75 Ga. 842. There were strong reasons for suspecting these persons of the felony; they had left the neighborhood of the crime that night on a fast train, and had already reached a border city, in their apparent attempt to ñee the State; the arrest was reasonable and justifiable. The arrest being legal, the search of their persons was lawful, and the evidence obtained thereby was admissible against them.

The contention that the prisoners were compelled to furnish evidence against themselves, by the action of the sheriff in asking them for their shoes and in taking the shoes thus obtained and comparing them with the tracks found near the scene of the crime, is answered by the decision of the Supreme Court in the case of Franklin v. State, 69 Ga. 36 (47 Am. R. 748).

The objection to the testimony of conductor Eaker, that the pass, membership card, letters, etc., found in the possession of the defendant Thoippson, were his, and that they had been taken surreptitiously from his possession, on the ground that this tended to embarrass the defendant, before the jury, by showing Ms complicity in another and independent crime, is not w;ell taken. Thompson having used these papers in an attempt to establish an identity asserted by him, it was permissible for the State to show that he was thereby asserting a false identity, to aid his escape, even though by its doing so another crime was indicated. Ray v. State, 4 Ga. App. 67 (60 S. E. 816).

One of the grounds of the motion for a new trial in Thompson’s case is that one of the jurors who tried him was related to one of the stockholders of the bank of Sharon, and that this fact was-unknown to him oí his counsel until after verdict. If these facts property appeared, it would be a good ground for a new trial; but after carefully scrutinizing it, we do not find the ground sufficiently supported. An affidavit from the juror himself, showing the relationship, is attached to the motion; it can not be considered. “As a matter of public policy, a juror can not be heard, to impeach his verdict, either by way of disclosing the incompeteney or misconduct of his fellow-jurors, or by showing his own misconduct or disqualification from any cause.” Bowden v. State, 126 Ga. 578 (55 S. E. 499). It is otherwise verified that at the time of the hearing of the motion for a new trial, Cox, to whom the juror was related, was a stockholder of the bank, but not that, he was a stockholder at the time of the trial. This is not 'sufficient. The affidavit of the defendant that he did not know of the disqualification of the juror at the time of the trial is imperfect, in that it is not entitled in the cause. For these reasons the trial judge did not err in refusing to grant a new trial on this ground.

There are other points in the record. We do not deem it necessary to elaborate them, but will be content to say that none of them are well taken. The evidence fully authorized the verdict. Judgment affirmed.


text:
    1247.
    Dolvin & Company v. Hicks.
   Powell, J.

1. In an attachment case the initial affidavit may be amended by adding one or more additional grounds- of attachment to those-originally alleged. Civil Code, §5122; Fitzpatrick v. Flanigan, 106 U. S. 648 (27 L. ed. 211, 1 Sup. Ct. 369) ; Brumby v. Rickoff, 94 Ga. 429 (21 S. E. 232) ; Collins v. Taylor, 128 Ga. 789 (58 S. E. 446).

2. Testimony that an account made out against a partnership was presented to one of the members thereof, and that he acknowledged its, correctness, is prima facie proof of the correctness of the account; and, in case of a denial of the account by the partnership, is sufficient to make an issue of fact for the jury.

Judgment affirmed.

Certiorari, from Bibb superior court — Judge Felton. May 26, 1908.

Submitted July 17,

Decided July 31, 1908.

Nottingham & Cabaniss, for plaintiffs in error.

L. D. Moore, contra.


author: Hill, C. J.

text:
    1259.
    Boyer v. The State.
    Accusation of misdemeanor, from city court of Sparta — Judge Tittle. June 15, 1908.
    Submitted July 14,
    Decided July 31, 1908.

      T. L. Reese, for plaintiff in error.

      R. W. Moore, solicitor, contra.
   Hill, C. J.

No error of law appears, and there is some evidence to support the verdict. Judgment affirmed.