text:
    1211.
    CRAWFORD v. THE STATE.
    Where the same name appears in different parts of a record, it will, especially in the absence of any indication that there was a dispute as to identity, be held to refer to the same person in each instance.
    Accusation of stabbing, from city court of Tifton — Judge Eve. April 16, 1908.
    Submitted June 30,
    Decided July 8, 1908.

      Smith & Foy, for plaintiff in error.

      W. J. Wallace, solicitor, contra.
   Powell, J.

The defendant was accused and convicted of stabbing Sewell Holmes. The only point in the case deserving any serious attention is' the contention presented hy the plaintiff in error that it does not appear from the record that the person shown to have been stabbed was the same person mentioned in that connection in the accusation. The brief of the evidence begins with the statement, “Holmes, sworn for the State, testified as follows;” and the testimony of this witness relates to his being stabbed by the defendant. The name of no other Holmes appears anywhere in the record. The brief of the evidence is duly entitled in the cause, and of course relates back to the accusation; so that when the court speaks of Holmes in the brief of evidence, the use of this name can, in all common sense, refer to no other person than the one of the same name previously mentioned in the record. If any other Holmes had been intended, counsel for the accused,, who prepared the brief of evidence, would have been quick to indicate that fact. Language is but a vehicle for the conveyance of ideas; and the language here used brings us no other idea than that the man testifying was the same man named in the accusation. As to such points, the application of more of common sense and less of technicality is in accord with later-day notions of the courts. Judgment affirmed.


source: Caselaw Access Project

author: Russell, J.

license: Public Domain

text:
    1216.
    JACOBS v. THE STATE.
    1. (a) Section 668 of the Penal Code is designed solely for the protection of landlords and landlords’ liens. The operation of this section of the code is expressly confined to those who are about to give liens, under § 2800 of the Civil Code, and who; upon being interrogated as to the existence, ownership, and. amount of any prior lien, give false information. A concealment of the existence of any lien, when disclosure of the facts is in the proper manner required, is criminal only when the new lien given is a landlord’s lien.
    (b) An indictment for a violation of § 668 of the Penal Code is defective unless it avers that the information alleged to be false was given in response to inquiry, and unless it appears, from the accusation, that the . lien taken in pursuance of such false information was a lien arising by operation of § 2800 of the Civil Code.

      (c) An accusation drawn under the provision of § 668 of the Penal Code must allege such facts as show that the prior lien alleged to have been given by the accused was in fact a valid, subsisting lien upon the same property upon which the subsequent lien was given.
    2. As against a proper demurrer, an accusation charging a violation of § 670 of the Penal Code by means of false representations must allege specifically: (a) knowledge of the existence of a prior lien; (6) knowledge of the falsity of said representations; (c) that the representations alleged to have been made were made with intent to deceive and defraud, and (d) that they did deceive t and defraud. Each of these allegations is material in a prosecution for cheating and swindling by false representations; and a demurrer pointing out the absence of any one of them should be sustained.
    Indictment for cheating and swindling, from city court of Camilla — Judge Scaife. May 6, 1908.
    Submitted June 30,
    Decided July 8, 1908.

      Davis & Merry, for plaintiff in error.

      Sam. S. Bennet, solicitor, contra.
   Russell, J.

The defendant in the court below excepted pendente lite to the overruling of his demurrer to an indictment for cheating and swindling; and having made a motion for new trial after conviction, he also excepts to the judgment overruling this motion. The indictment charged the defendant with having given a mortgage on a certain bay mare named “Carrie Belle,” to one H. P. Palmer, to secure certain indebtedness therein described, after having executed a mortgage to the Everett Mercantile Company upon the same property, the defendant falsely representing to Palmer, at the time of giving the second mortgage, that the animal described was free from any lien or encumbrance whatever. The defendant demurred, both generally and specially. The grounds of the special demurrer set ’up that the indictment was fatally defective for twelve reasons. The first ground of the special demurrer is that the indictment fails to set out and allege the names of the members of the firm of Everett Mercantile Company; and the second is that it fails to allege that Everett Mercantile Company is a corporation. Neither of these grounds possesses any merit; because the name imports a corporation.

The third ground of the special demurrer insists that the indictment fails to allege a valid existing lien in favor of Everett Mercantile Company on the property in question at the time of the execution of the second lien. The language, “having executed and given a mortgage to the Everett Mercantile Co. on one dark bay mare about seven years old, named Carrie Belle, as security for a debt of $104.00,” imports the creation of a lien; and the language following, “as evidenced by a mortgage note dated Jan. 27th, 1906, and due Sept. 1st, 1906, witnessed by J. L. Barrow,” sufficiently' identifies the paper creating the lien, and its attestation, as between the parties. But the paper described in the indictment would not be a valid mortgage as to third parties within the terms of the Civil Code, §2724, the mortgage not being attested by an officer.

The question raised by the fifth ground of the special demurrer is, whether it was necessary that the indictment should allege that the mortgage in favor of Everett Mercantile Company had not been paid and satisfied. In French v. State, ante, 462 (61 S. E. 836), we held that the mere existence of a prior mortgage or superior lito raised the presumption of loss and damage in such cases.

The ninth ground of the special demurrer calls attention to the fact that the indictment fails .to set out that any loss resulted to H, P. Palmer because of the mortgage lien to the Everett Mercantile Company. If.the prior mortgage in favor of the Everett Mercantile Company had been paid, the loss and damage (if any accrued to the prosecutor, and if the prosecution is to be construed as proceeding under §670 of the Penal Code) could not be said to be traceable to the prior mortgage, and it must affirmatively appear, in an accusation based upon §670 of the Penal Code, not only that the second lien was created with intent to defraud, but that it was in fact the cause of some one suffering loss, — the actual means whereby some one was defrauded.

We deem any further discussion of the grounds of the special demurrer unimportant, because, regardless of the special demurrers, we are of the opinion that the indictment should have been quashed upon general demurrer. The indictment must be based either upon §668, §669 or §670 of the Penal Code, and yet the allegations are insufficient, under any of these sections, to sustain the accusation. Uilder the provisions of §668, “A person who has given a lien under §2800 of the Civil Code, or any other lien, shall, when giving "a new lien under said section on the same property to another person, inform such person, if interrogated as to the facts, of the amount of such prior lien and to whom given. If he gives false information as to said facts, he shall be punished as for a misdemeanor.” If the indictment in the present case is predicated on §668, it is defective, in the first place, in that it is not alleged that the defendant was interrogated in order to obtain the information which he gave. In the absence of this allegation, the indictment would be fatally defective, because, under the terms- of §668, there is no duty of disclosure except where the person giving .the lien is interrogated.

Furthermore, it is to be noted that the second lien, the giving of which is by §668 made criminal, must be one of the liens included in §2800 of the Civil Code; and nothing in the allegations of the indictment indicates that the second lien given by the defendant was a landlord’s lien for supplies. If the State intended to prosecute for a violation of §668 of the Penal Code, the second lien should have been so particularly described as to bring it within the terms of §2800 of the Civil Code. The language of §668 is: “a person who has given a lien under §2800 of the Civil Code, or any other lien, shall, when giving a new lien under said section " etc. It is manifest, therefore, that the only second liens referred to in §668 are the liens referred to in §2800. The only purpose of the act of 1873, from which §668 is taken, seems to have been to require, for the protection of landlord’s liens, truthful information as to any other outstanding liens from those to whom landlords were about to make advances. This section applies only to those who are about to give a lien under §2800.

Moreover as §2800 applies specifically to liens of landlords, and the words “any other liens” in the second line of the section were intended to include all liens other than landlord’s liens (and consequently mortgages are embraced), still the allegations of the indictment should not only be sufficient to describe a prior mortgage given by the defendant, the existence of which he concealed by a false answer to the question, but must show that the lien, if a mortgage, was executed and attested according to law, and was entitled to probate; in other words, that the prior lien was not only good as between the parties thereto, but also valid as to, and superior to the liens of, third parties.

The accusation could not properly be based upon §669 of the Penal Code; because this section relates only to sales of property, or the conveyance of an interest of the grantor in such property, whatever that interest may be; and it is not stated that the defendant knew the property to be subject to a prior lien.

It is insisted by counsel for the State that the indictment is sufficient to support a charge of the violation of §670 of the Penal Code; but we can not concur in this opinion. The language of §670 is: “Any person using any deceitful means or artful practices, other than those which are mentioned in this code, by which an individual or the public is defrauded and cheated, shall be punished as for a misdemeanor.” An indictment based upon this section must allege: (a) knowledge of the existence of a prior lien; (b) knowledge of the falsity of said representations; (c) that the representations alleged to have been made were made with intent to deceive and defraud; and (d) that they did deceive and defraud. Goddard v. State, 2 Ga. App. 154. Each of these allegations is material, and the omission of any one would render the indictment subject to demurrer, if the accusation was based upon §670 of the Penal Code. None of these elements is distinctly charged in the indictment. Certainly it is not to -be presumed, in the absence of any allegation to that effect, that it was intended in this indictment to charge distinctly, as must be done, that the representations were made with the intent to deceive. Busby v. State, 120 Ga. 858.

We are of opinion that the demurrer should have been sustained and the indictment quashed. Judgment reversed.


author: Powell, J.

text:
    1219.
    Patterson v. The State.
    Indictment for assault with intent to rape, from Franklin superior court — Judge Brand. April 21, 1908.
    Submitted June 30,
    Decided. July 8, 1908.

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

      S. J. Tribble, solicitor-general, contra.
   Powell, J.

The evidence is not insufficient to support the verdict. The exceptions to the charge of the court are not meritorious.

Judgment affirmed.


text:
      1232.

    SMITH v. CITY OF WASHINGTON.
    1. The duty of seeing that a writ of certiorari is served upon the inferior judicatory to whom it is addressed devolves upon the petitioner for certiorari or his attorney.
    2. When a clerk of a superior court issues the writ of certiorari and attaches it to tire petition, copies the same, dockets the case, and thereafter safely keeps these papers in his office, unaltered and uninjured, he has fully complied with his duty in connection therewith. He is not required to see that the writ of certiorari is served; nor is he required to call the attention of the petitioner to the fact that it has not been served. In eases of certiorari the sole duty of the clerk of the superior court, so far as service is concerned, is to write and sign the certiorari and safely keep the petition, the writ, and all other papers appertaining thereto, subject to the call of the petitioner before service of the writ, and subject to the orders of the court after service of the writ.
    3. It was not error to dismiss- a certiorari which had not been served upon the opposite party, although the writ was issued more than four months prior to the term of court at which the motion to dismiss was made.
    4. It must affirmatively appear in the petition for certiorari from the judgment of a municipal court that the bond required by the act of 1902 (Acts of 1902, p. 105) has been given, or that pauper affidavit has been filed in lieu thereof.
    5. There being no provision of law to require a solicitor-general to represent municipal corporations within his judicial circuit, service of notice of the sanction and of the time and place of hearing of a certiorari upon the solicitor-general is ineffectual for the purpose of serving a municipal corporation. Service upon a municipal corporation can not be had by serving the solicitor-general of the judicial circuit wherein the municipality is located.
    Certiorari, from Wilkes superior court — Judge Worley. May 6, 1908.
    Submitted June 30,
    Decided July 8, 1908.

      W. H. Toombs, F. H. Colley, for plaintiff in error.

      D. W. Meadow, solicitor-general, R. C. Norman, J. M. Pitner, contra.
   Russell, J.

Nick Smith filed a petition for certiorari, in which he alleged that he was broright to trial in the mayor’s court of Washington upon an oral charge, accusing him of violation of a city ordinance, and was illegally convicted. The petition for certiorari was duly sanctioned by the judge of the superior court, and the petition, with sanction of the judge endorsed thereon, was delivered by Smith’s attorney to the clerk of the superior court of Wilkes county. It appears from the record that the clerk of the superior court promptly and properly issued. the writ, directed to the mayor of the City of Washington, bearing teste in the name of the judge of the superior court of the circuit, entered the case upon the docket, copied the petition and the sanction of the judge, attached the writ of certiorari, and kept the same in his office until April 29, when they were handed by him to the petitioner’s counsel, upon counsel’s request to be furnished with papers in those cases which he represented. The petitioner’s attorney then for the first time discovered that there had been no service upon the mayor; and it was then too late to éffect service as required by law. During the May term of Wilkes superior court the petitioner moved the court to grant an order directing the clerk to issue the writ of certiorari; which must be construed to mean another writ of certiorari, as one had already issued. The judge of the superior court at first determined to grant such an order, but, upon further consideration, declined to order the clerk to issue the writ, and, upon motion of counsel for the defendant in the certiorari, dismissed the petition.

The first question which presents itself is, whether the judge erred in declining to grant an order requiring the clerl to issue a writ of certiorari, under the facts disclosed in this record. We think the judge ruled correctly in declining to issue such an order. It would have been a nullity if issued. The petition for the writ of certiorari, sanctioned in behalf of the plaintiff in error, was either a legal petition or a nullity. If it was a nullity in its then state, it was not only proper to strike the case from the docket by dismissing it, but it would have been illegal to again sanction it by directing the writ of certiorari to issue; for the time had expired within which such a petition could be presented for sanction, of which an order directing the issuance of a writ of certiorari is merely a necessary consequence. If the petition as originally sanctioned was legal in all respects except as to service upon the presiding officer of the inferior tribunal, the court was right in declining to issue an order requiring such service; because the failure’ to serve was plainly due to a lack of diligence on the part of the petitioner or his counsel, and to nothing else. If the clerk had failed to issue the writ, then, under the rulings in Hopkins v. Suddeth, 18 Ga. 518 and Mitchell v. Simmons, 58 Ga. 166, the judge might have ordered the writ to issue — the petitioner being free from fault.

It is the duty of the petitioner in certiorari to either himself serve the inferior judicatory whose decision is sought to be reviewed, or to cause it to be done by the sheriff or his deputy, or any other agent whom the party may select. Tucker v. Graysville, 120 Ga. 148 (2); Zachery v. State, 106 Ga. 124.

In the interest of economy, no.doubt, certioraries afford a special exception to the general rule which requires the service of other processes in the superior court to be effected by the sheriff. Consequently the petitioner had no right to expect that the clerk would do more than he did, or would see that the petition and the writ of certiorari were served upon the mayor of the City of Washington. The clerk of the superior court performed his full duty in the premises as clerk when he issued the writ, attached it to the petition, made a copy of the petition and the writ, and docketed the case. Furthermore, it was the duty of the petitioner or of his counsel to see that the mayor was served with the copy of the petition and with the writ of certiorari. If the clerk did anything to mislead the petitioner’s counsel, or impliedly personally assumed any obligation to serve the mayor with the writ and copy of petition, and his failure to perform this obligation damaged the petitioner, he might or might not be individually liable to the petitioner, dependent upon whether, as an individual, he owed a duty to the petitioner, raised by his sayings or conduct, upon a proper consideration, to see that the petition was served. This, however, would be entirely independent of the duty of the clerk of the superior court.

The petition not having been served upon the mayor, it was in the discretion of the court, had all the other proceedings been regular, to grant an order extending time for service; but the judge did not err in declining to grant such an order, nor in dismissing the petition. It is apparent from the record not only that the-petitioner failed to show any legal excuse why the mayor had not been served, but also that there was no proof that the bond required by law had been given; and it further appears that no notice to the opposite party had been'given, as required by law, of the sanction of the certiorari and of the time and place of hearing. This notice must be given at least ten days before the court at which the hearing is to be had. In McDonald v. Ludowici, 3 Ga. App. 654 (60 S. E. 337), we held that the judge should ascertain whether the bond required by the act of 1902 (Acts 1902, p. 105) had been given, or whether the pauper affidavit in lieu thereof had been filed, if the petition asserted that such bond had been given or that such affidavit had been filed. In the present case, however, no statement was made in the petition that either had been done. See Johns v. Tifton, 122 Ga. 734 (50 S. E. 941); Veazey v. Crawfordville, 126 Ga. 89 (54 S. E. 817).

Under the provisions of the Civil Code, §4644, ten days’ notice of the sanction of the writ must be given the opposite party. The petitioner attempted to comply with this requirement by obtaining an acknowledgment of service of the required notice from the solicitor-general of the Northern circuit. Under our ruling in McDonald v. Ludowici, supra, the solicitor-general, as such, has no duty with relation to certioraries from the judgments of municipal courts. If one who holds the office of solicitor-general should happen to represent the municipal corporation in such a capacity as would render him the proper person to be served as its representative, he must be served as such representative. The solicitor-general of the Northern circuit is under no duty to represent the City of Washington or its mayor. There was, therefore, no notice of the sanction of the certiorari or of the time or place of hearing, as required by law. The remaining questions presented by the record are specifically dealt with in the headnotes; and from what has been said, it is clear that for several reasons the judgment dismissing the certiorari was not erroneous. Judgment affirmed.


text:
    784.
    TOWLER, administratrix, v. CARITHERS.
    1. The courts recognize the initials “N. P.” as the usual and ordinary abbreviation for the official title of a notary public.
    2. A person holding title under a mortgagor and having notice, actual or constructive, of the existence of the mortgage can acquire no interest in the property adverse to the rights of the mortgagee. A person who obtains the property otherwise than through or under the mortgagor, and holds it in adverse possession for the statutory period, gains thereby a prescriptive title superior to the lien of the mortgage.
    Claim, from city court of Monroe — Judge Arnold. September 9, 1907..
    Argued April 21,
    Decided July 25, 1908.

      Napier & Cox, for plaintiff in error. G. A. Johns, contra.
   Powell, J.

In 1891 one Sturdivant mortgaged the mule in controversy to Carithers, the defendant in error. The mortgage was attested by “C. W. Harris, N. P.,” and duly recorded. In 1896 Towler bought this mule from the firm of Nunnally, Breedlove & Company without any notice of the mortgage, other than the constructive notice arising from its having been recorded. Towler remained in- adverse possession of the mule until the foreclosure of the mortgage in 1906; to which foreclosure he filed claim. The judgment in the city court was adverse to him, and he excepted; though the case is now proceeding in the name of his administratrix, he having died during the pendency of the case in this court. It did not appear, in the evidence, that Nunnally, Breedlove & Co., from whom Towler purchased, claimed title through or under Sturdivant; indeed it is not disclosed how they obtained the property.

One of the exceptions is that the court erred in admitting in evidence Carithers’ mortgage, over the objection that it was not properly attested. The court will take judicial cognizance that the initials “N. P.” are the usual and ordinary abbreviation of the title “Notary Public.” The presumption, therefore, is that this officer acted legally, and that the probate is legal. See also Civil Code, §5221.

A person holding title under the mortgagor and having notice, actual or constructive, of the existence of the mortgage can acquire no interest adverse to the mortgagee. A person acquiring the property otherwise than through or under the mortgagor, and holding it in adverse possession for the statutory period, gains thereby a prescriptive title superior to the lien of the mortgage. This is logical and is also thoroughly in accord with the following authorities. Fry v. Shehee, 55 Ga. 208; Stokes v. Maxwell, 53 Ga. 638; Parker v. Jones, 57 Ga. 204. It not appearing that the claimant was in privity with the mortgagor, and it appearing that he had been in adverse possession of the property for more than four years prior to the foreclosure of the mortgage, he was entitled to prevail.

Judgment reversed.


text:
    1028.
    Russell, administrator, v. Hammock.
    Complaint, from city court of Fitzgerald — Judge Jay. January 13, 1908.
    Submitted June 14,
    Decided July 25, 1908.

      Otis H. Elkins, for plaintiff in error.

      E. Wall, E. S. Fuller, contra.
   Russell, J.

1. This court will not undertake to determine errors dependent upon the evidence, where no bona fide effort is made to prepare a proper brief of the evidence.

2. The stenographic report of the testimony adduced in the trial of a case, a large portion of which is in questions and answers, with counsel’s objections to testimony and the rulings of the court thereon included, is not such a brief of evidence as is required by law and the rules of the court. Judgment affirmed.


text:
    1069.
    ARNOLD v. LOUISVILLE AND NASHVILLE RAILROAD COMPANY.
    While a clause in a contract for the shipment of live-stock, providing that, as a condition precedent to the shipper’s right to recover any damages for loss or injury, he should give notice in writing of his claim therefor before the animals are removed from the place of destination and before they are mingled with other animals, is prima facie reasonable and binding, nevertheless it may be waived or rendered unreasonable and unenforceable in the particular case by the conduct of the carrier.
    Action for damages, from city court of Atlanta — Judge Calhoun. January 24, 1908.
    Argued May 5,
    Decided July 25, 1908.

      Burton Smith, Lawton Nally, for plaintiff.

      Tye, Peeples, Bryan & Jordan, for defendant.
   Powell, J.

The suit was for damages to live-stock shipped under the usual form of signed special contract. The company was to furnish the shipper transportation, on the train with the stock, and he assumed certain duties in relation to the stock, which otherwise the carrier should have performed. After about half of the journey was completed, the carrier refused to allow him further passage on the train with the stock; and thus he was prevented from accompanying it as required in the contract. Upon the trial he showed these facts, but the court directed a verdict for the defendant, chiefly, we infer from the argument, upon the ground that the shipper did not comply with that clause of the contract which provided that, as a condition precedent to the. shipper’s right to recover any damages for loss or injury, he should give notice in writing of his claim therefor before the animals were removed from the place of destination, or place of delivery to the shipper, and before they were mingled with other animals. •It seems, from the evidence, that when the shipper was refused transportation on the train that brought the stock, he took another train, and arrived ahead of them, and that the stock were delivered in the stock-pens of his agents at the point of destination before he knew they had arrived.

While this clause of the contract just mentioned has been held to be reasonable and valid (Southern Ry. Co. v. Adams, 115 Ga. 705, 42 S. E. 35), still it may be waived, or rendered unreasonable and unenforceable as to the particular case, by the conduct of the carrier. Central R. Co. v. Pickett, 87 Ga. 734 (13 S. E. 750); Carter v. So. Ry. Co., 3 Ga. App. 35 (5), (59 S. E. 209). If the carrier, in breach of its contract, refused to allow the shipper to accompany the stock, it thereby relieved him from those duties he had assumed, so far as the due performance of them was dependent upon his being present with the shipment throughput the journey. It was a jury question as to whether the carrier, by refusing the 'shipper transportation on the freight train and by unloading the stock into his agent’s pens before he had time to inspeet them, did not waive or render unreasonable in the particular case this clause of the contract. Judgment reversed,.


text:
    1103.
    BASS DRY GOODS CO. v. ROBERTS COAL CO.
    Where the aggregate amount of an account is in dispute, but the debtor concedes a liability for a part thereof, and tenders that sum in payment, on the condition that it shall be in full settlement, the creditor, by retaining and using the money, check, or other thing of value so tendered, extinguishes the whole account, notwithstanding he protests, at the time, that the remainder of his claim is still due and owing.
    Complaint, from city court of Atlanta — Judge Calhoun. March 3, 1908.

      Argued May 8,
    Decided July 25, 1908.

      Dodd & Dodd, for plaintiff in error.

      Horton Brothers & Burress, contra.
   Powell, J.

The Roberts Coal Company had an account for coal, consisting of a number of items against the Bass Dry Goods Company, amounting to $302.34. The Bass' Company disputed tire account, but finalby conceded a liability for $194.64 thereon, and tendered the coal company a check for this sum, bearing on its face the words, “in full to Dec. 1, 1902.” The account in question consisted of items charged prior to that date. The coal company, after holding the cheek for some time, collected it, but wrote that it did not admit that the check covered the whole amount due to December 1, 1902, and that it would insist upon payment of the remainder. The present action includes a claim for $107.70 on account of coal prior to December 1, 1902, and an item of $81.33 for coal delivered after that date. The jury gave a verdict for the full amount claimed; the judge overruled the motion for a new trial, and the defendant excepts.

To quote from Chicago Ry. Co. v. Clark, 178 U. S. 353 (44 L. ed. 1099, 20 Sup. Ct. 924), cited approvingly in Redmond v. Atlanta & Birmingham Ry., 129 Ga. 140 (58 S. E. 877), “the cases are many in which it has been held that where an aggregate amount is in dispute, the payment of a specified sum conceded to be due, that is, by including certain items but excluding disputed items, on condition that the sum so paid shall be received in full satisfaction, will be sustained as an extinguishment of the whole.” In such cases, if the debtor tenders the sum as to which he is willing to concede a liability, on condition that it is to be accepted in frill settlement, the creditor must decline the tender and not retain and use the money, cheek, or other thing of value offered in full settlement. Redmond v. Ry., supra; Walker v. O’Neill Mfg. Co., 128 Ga. 835 (58 S. E. 475); Walker v. Wadley, 124 Ga. 286 (52 S. E. 904); Jenkins v. National Bldg. Asso., 111 Ga. 732 (36 S. E. 945); Hamilton v. Stewart, 105 Ga. 300 (31 S. E. 184), s. c. 108 Ga. 472 (34 S. E. 123). The subject is so thoroughly reviewed in the Redmond case that we do not deem it necessary to distinguish the following cases, which, while apparently to the contrary in some of their phases, are nevertheless clearly and rationally distinguishable. Carlton v. W. & A. R. Co., 81 Ga. 531 (7 S. E. 623); Armour v. Ross, 110 Ga. 403 (35 S. E. 787) ; Georgia Railroad Co. v. Gouedy, 111 Ga. 310 (36 S. E. 691) ; Robinson v. Leatherbee Co., 120 Ga. 901 (48 S. E. 380). The recovery as to the $107.70 is unauthorized; but there is no reason lor reversing the judgment as to the remainder of the recovery. The judgment, therefore, will be affirmed on condition that the plaintiffs in the court below will write off from their verdict the $107.70 and interest thereon.

Judgment affirmed, on condition.


text:
    1122.
    MURPHY v. GEORGIA RAILWAY & ELECTRIC CO.
    Wliere the plaintiff proves his case as originally laid, but, in order to avoid the effect of testimony introduced by the defendant in contradiction of it, subsequently amends the petition, and thereby brings it into variance with all the proof, the court may, at least as against exception by the plaintiff, end the trial, by an order of dismissal, in the nature of a nonsuit.
    Action for damages, from city court of Atlanta — Judge Reid. March 10, 1908.
    Argued June 11,
    Decided July 25, 1908.

      James L. Key, for plaintiff.

      Rosser & Brandon, W. T. Colquitt, B. J. Conyers, contra.
   Powell, J.

The plaintiff sued the street-car company, alleging, that she was a passenger; that the car was stopped at her place for getting off; that while she was on the step in the act of alighting, the motorman, with a sudden jerk, started the car forward, and threw her to the ground, so that she was severely injured. This ease she supported by her testimony. The defendant proved that before the car stopped, and while it was near the crossing at which the plaintiff desired to get off, she stepped or jumped off, and thus was injured. So strong was this proof on behalf of the defendant that, while the argument of counsel was progressing, the plaintiff amended her petition, by alleging, that the car had not stopped when she attempted to alight, but that the conductor, by calling the street and ringing the signal bell for the motorman to stop the car, and by telling her, when she arose from her seat, to go out the front of the ear rather than the rear, and by assisting her in her progress to the front platform, led her to believe that the car was stopped; and that while she was thus on the platform the car was stopped; and in this amendment she alleged that it was negligence for the conductor to assist her to alight before the car was stopped, and for the motorman to jerk the car while she was in the position of alighting. The plaintiff returned to the stand, and, instead of supporting her amendment, reiterated her ease as she had originally laid it. The judge granted an order in the nature of a nonsuit, dismissing the action, for the variance between the pleading and the proof. The plaintiff brings error.

The amendment related back to the beginning of the ease. The plaintiff’s testimony was wholly variant from the case as thus laid. The defendant’s testimony certainly did not make out a case for the plaintiff, but showed clearly an injury brought about by her own fault. It was manifestly proper, therefore, that the court should give the case some such direction as would refuse the plaintiff a favorable judgment. Usually nonsuit is the proper termination of a trial when the plaintiff’s recovery is precluded by a variance between the case as laid and the ease as proved; and the direction of a verdict in favor of the defendant is the proper termination only when the plaintiff has at least prima facie proved his case as laid, and the subsequent evidence has irrefragably disproved it. Cf. Proctor v. Blakely Oil Co., 128 Ga. 606 (57 S. E. 879). In the usual progress of a trial the time for the moving and for the granting of a nonsuit is when the plaintiff first rests his case; but when, as in the present instance, nonsuit has not been granted at that time, and the subsequent course of the trial retains or takes on such shape and condition that the evidence remains or becomes wholly and absolutely in conflict with the pleadings, the court may, without error, refuse the plaintiff the privilege of going to the jury, and may end the case by a judgment of dismissal, in the nature of a nonsuit. Grand Rapids Co. v. Morel, 110 Ga. 321 (35 S. E. 312); Kelly v. Strouse, 116 Ga. 894 (43 S. E. 280). Judgment affirmed.


author: Hill, C. J.

text:
    1123.
    PORTERFIELD v. THOMPSON.
    It is well settled by the statute of this State, and by repeated rulings of this court and of the Supreme Court, that the superior court is without jurisdiction to render a final judgment on a certiorari, unless no issue of fact is involved, and the error assigned is a question of law which must finally govern the case.
    Certiorari, from Madison superior court — Judge Worley. March 4, 1908.
    Argued June 11,
    Decided July 25, 1908.

      J. E. Gordon, for plaintiff in error. J. F. L. Bond, contra.
   Hill, C. J.

Thompson sued Porterfield in the city court of Madison county for $40, the alleged value of forty bushels of “Culpepper improved big-boll cottonseed,” which Thompson alleged Porterfield had taken from the gin-house where they were stored, and converted to his own use. The evidence shows that Porter-field did take certain cottonseed from the gin-house, which Thompson claimed were his “Culpepper improved- big-boll cottonseed,” worth in the market $1 per bushel. Porterfield admitted'getting cottonseed from the gin-house, and from the place therein where Thompson’s seed were stored, but he denied that they were of the character of cottonseed described by Thompson, or that they were of the value of $1 per bushel, but insisted, that they were an inferior and mixed cottonseed, not fit for planting purposes, and that he had sold them to an oil mill for only $1 per hundred pounds; and he testified that he tendered to Thompson $12.66, the market price of the seed which he had gotten from the gin-house and the'sum for Which he had sold them to the oil mill. There was a conflict in the evidence as to the character and value of the seed in controversy, Thompson contending that they were fine Culpepper improved big-boll cottonseed, of the market value of $1 per bushel, and Porterfield contending that they were impure, mixed seed, not fit for planting purposes, and of the value of $1 per hundred pounds.

The ¡júrjr decided this issue in favor of Porterfield, and found a verdict in favor of Porterfield’s tender to Thompson of $12.66. Thompson thereupon filed his petition for a writ of certiorari, in which he alleged that the verdict against him was contrary to the evidence and without evidence to support it, and against the weight of the evidence; that it was contrary to law and to the charge of the court, and that, under the evidence, only two legal verdicts could have been found, — one for him for the full amount of $40, as the value of the forty bushels of cottonseed, or one for the defendant; and that there was no evidence to authorize the jury to find in favor of the plea of tender. The judge of the superior court sustained the certiorari, and rendered a final judgment in the case, in favor of Thompson, for $40, stating, as a reason for this judgment, that the evidence in the case was undisputed both as to ownership and the value of the cottonseed, and the question was, therefore, one of law. To this judgment the defendant in certiorari sued out a writ of error to this court.

The Civil Code, §4652, authorizes the judge of the superior court to render a final judgment in a certiorari case only where the error complained of is “an error in law which must finally govern the ease,” and there is no question of fact involved. It' is well settled, by repeated rulings of the Supreme Court, that the superior court can not legally render a final judgment upon a certiorari when it appears that at the trial thereby brought under review there were disputed issues of fact, and the case was not one the determination of which necessarily depended upon a controlling question of law. It matters not that the judge of the superior court may think that the verdiet rendered in the lower court is against the large preponderance of the evidence, or entirely without evidence to support it, yet, if the question is one of fact and not one of law, the only proper judgment is to remand the case to the lower court for a new trial. Rogers v. Georgia R. Co., 100 Ga. 699 (28 S. E. 457, 62 Am. St. R. 351); Pinkston v. White, 102 Ga. 561 (27 S. E. 665); Johnson v. Coleman, 106 Ga. 205 (32 S. E. 122); Patterson v. Central Ry. Co., 117 Ga. 827 (45 S. E. 250).

Even where there is no conflict in the evidence, unless there is a question of law which must finally .control ’the case, the reviewing court must remand the case for a new trial, for it can not determine that the evidence on the second trial will be the same as that on the first. Williams v. Bradfield, 116 Ga. 705 (43 S. E. 57).

In this case no controlling question of law is presented. The issues are as to the character and value of the cottonseed in controversy,- — purely questions of fact, — and the reviewing court had no authority to determine these issues of fact in favor of one party, and render a final judgment in favor of the contentions of that party. We think the court was right in sustaining the certiorari, but erred in rendering a final judgment for the plaintiff in certiorari; and we reverse this judgment and direct that the case be remanded to the city court for a new trial. Simons v. Burt, 2 Ga. App. 472 (58 S. E. 689); Joseph v. Continental Jersey Works, 92 Ga. 542 (17 S. E. 923). Judgment reversed.


text:
    1140.
    SEABOARD AIR-LINE RAILWAY v. HUTCHINSON.
    1. A party who institutes garnishment proceedings under the provisions of section 4708 of the Civil Code, based on a pending suit, may state, in his affidavit for garnishment, that “the amount claimed to be due in such action” is a less amount than that specified and claimed in the original suit; and the garnishment bond required in such event will be “in a sum at least equal to double the amount sworn to be due,” without reference to the amount claimed in the main suit.
    2. Where garnishment proceedings are instituted under the provisions of section 4708 of the Civil Code, based on a pending suit, and the plaintiff states, in his affidavit, that “the amount claimed to be due in such action” is a smaller sum than that specified in the damnum clause in the main suit, he can amend the declaration by reducing the amount therein claimed, so as to make it conform to the amount sworn to be due in the affidavit for garnishment. The amendment, when filed relates back to the time of the filing of the original suit.
    Garnishment, from city court of Atlanta — Judge Reid. April 4, 1908.
    Argued July 2,
    Decided July 25, 1908.

      Brown & Randolph, for plaintiff in error.

      Smith & Hastings, Smith, Hammond & Smith, Tye, Peeples, Bryan & Jordan, Dorsey, Brewster, Howell & Heyman, J. H. Porter, contra.
   Hill, C. J.

Hutchinson sued the Seaboard Air-Line Railway to recover damages for personal injuries in the sum of $25,000. Pending the case he sued out garnishment proceedings, stating in his affidavit that he claimed to be due him in his suit the sum of $10,000. The garnishment bond was in the sum of $20,000. The defendant filed a demurrer to the affidavit and bond for garnishment, and made a motion to dismiss the garnishment proceedings, both based upon the proposition that the variance in the amount sued for in the main suit and the amount claimed to be due in such action as stated in the affidavit for garnishment constituted a fatal defect. Before the hearing of the demurrer, and the motion to dismiss, the plaintiff amended his original petition, by changing the amount claimed as damages from $25,000 to $10,000, .so as to make it conform to the affidavit and the bond for garnishment. Two questions of law are presented for the decision of this court. (1) Is an affidavit in a garnishment proceeding based on a pending suit, which states that “the amount claimed to be due in such action” is a less sum than the amount claimed in the main action, a compliance with the statutory requirements for the issuance of garnishment proceedings? (2) If such variance is material, can it be cured by an amendment of the original suit, reducing the amount sued for, so as to make it conform to the -amount claimed to be due in the affidavit for garnishment?

Section 4708 of the Civil Code, providing for the institution of garnishment proceedings, so far as it relates to the question now under consideration, is as follows: “The plaintiff, his agent or attorney at law, shall make affidavit before some officer authorized to issue an attachment by this code, stating the amount claimed to be due in such action, or on such judgment” (the words “such action” referring to the pending suit on which the garnishment proceeding is based). The plaintiff in error contends that the proper interpretation of the above language is that the affidavit for garnishment must state, as “the amount claimed to be due,” the amount specified in the pending action. The defendant in error insists that the phrase “in such action” applies to the word “due,” and not to the word “claimed;” so that the party seeking the garnishment is required to state in his affidavit how much he claims is due in the pending action at the time of making the affidavit, regardless of the amount specified in such action as being due. The exact point now under discussion seems never to have been, before the Supreme Court, and we will accept that construction of these words of the statute which appears to us to be in harmony with sound judicial policy. A party may, and frequently does, sue for a larger amount than he really claims' or .expects to recover. Indeed, in suits to recover damages for personal injuries, this is generally the rule. The plaintiff is not required to swear to the amount he claims in his main suit. But when he wants process of garnishment issued on his pending suit, he must “make affidavit . . stating the amount claimed to be due in such action.” He has already stated the sum claimed as due him in his main suit, and this is a matter of record. No serious injury can happen to the defendant or any one else by the filing of the main suit. But garnishment is a summary remedy which does affect the right of the defendant, and may affect the garnishee. Before the plaintiff can avail himself of this summary statutory remedy, he must state, under oath, the amount he really claims to be due him in his pending action, so that the rights of the defendant will be protected in the event that the plaintiff fails to recover in his suit, or that the money or property sought to be garnished was not subject to the process of garnishment. "Section 4718 of the Civil Code provides that garnishments may be dissolved by the defendant, by giving a bond “conditioned for the payment of the judgment that shall be rendered on said garnishment.” The condition of the bond is not to pay the judgment that is rendered in the main suit, but to pay the judgment rendered on the garnishment proceedings. No greater judgment can be rendered in the garnishment proceedings than the amount which the plaintiff claims to be due him in such proceedings, regardless of the amount of his claim in the main suit. It would seem to be unnecessary to require the plaintiff to give a bond in a larger amount than would be required to protect the defendant because of the garnishment proceedings. Nor will this view impose any hardship upon the defendant; for he can dissolve the garnishment by filing a bond, as before stated, “conditioned for the payment of the judgment that shall be rendered,” not in the main suit, but “on said garnishment.” . While the practice in garnishment proceedings has been to name in the affidavit the amount claimed by the plaintiff in his original suit, and to execute a bond in double the amount so claimed, yet we see no reason in law or logic why the plaintiff can not state in his affidavit for garnishment the sum he actually claims to be due him in his main suit, and why a bond in double the amount of the sum so claimed would not be sufficient to meet all the requirements of the statute, and to fully protect the rights of the defendant.

But even if not correct in- the foregoing construction of the statute on this subject, we think any variance between the amount claimed in the original suit and the amount claimed in the affidavit to obtain garnishment is amendable. Section 4564 of the Civil Code allows the plaintiff in attachment “to amend his attachment, or bond, or declaration, as in other cases at common law;” and the Supreme Court, in Janes v. Tomlinson, 30 Ga. 540, held that this act was also applicable to garnishment proceedings; in Irwin v. Howard, 37 Ga. 18, an attachment bond was amended so as to make the amount of the bond twice the sum sued for; and in Gregory v. Clark, 73 Ga. 542, it was held generally that the provisions of the code relative to garnishments and attachments should be construed in pari materia, so as to give effect to every part of each of them. It is clear that any variance between the garnishment proceedings, including the affidavit and the bond and the main suit, may be cured bj amending the affidavit or by amending the bond (of course, with the consent of the sureties, when the bond is amended). Certainly there is no more sanctity in the main suit than in the garnishment suit, and no reason why the former could not be amended to conform to the latter as well as the latter could be amended to conform to the former. The policy of our law is to allow defects in all proceedings to be cured by amendment, where no injury results to either party. It is difficult to see how an amendment to a main suit, reducing the amount sued for, so as to make it conform to the amount stated in the affidavit upon which the garnishment was based, can work any injury to the defendant, the garnishee, or any other party who may claim the fund garnished. Theoretically the main suit and the garnishment suit based upon the main suit may be entirely different, and each may proceed to judgment for an entirely different amount. Practically the garnishment.suit is dependent upon the main suit. It is an incident of the main suit, and can amount to nothing unless success is first reached in the main suit. Therefore, any amendment which is not injurious to the opposite party, which has the effect of making the garnishment suit conform to the main suit, or vice versa, should be allowed.

The amendment that was properly allowed in this case, as we think, of the main suit, reducing the amount sued for from $25,000 to $10,000, related back to the time of filing the original suit, and took effect as of that date., A., K. & N. Ry. Co. v. Smith, 1 Ga. App. 162 (58 S. E. 106); Wells v. Wells, 118 Ga. 812 (45 S. E. 669); Southern Ry. Co. v. Horine, 121 Ga. 386 (49 S. E. 285). It follows that, with the amendment,, the main suit and the garnishment proceedings were in accord on the subject of the amount claimed by the plaintiff. Judgment affirmed.


text:
    1142.
    McNEIL v. ELLIS.
    The court did not err in overruling the special demurrer to the plaintiff’s petition, nor in sustaining the special demurrer to so much of the defendant’s answer as attempted to set up a recoupment; but since the general denials contained in the answer were sufficient to raise an issue in the case, the court did err in rendering judgment for the plaintiff' without proof.
    Complaint, from city court of Macon — Judge Hodges. March 11, 1908.
    Argued July 2,
    Decided July 25, 1908.

      J. E. Hall, for plaintiff in error.

      Hardeman, Jones & Johnston, contra.
   Powell, J.

The plaintiff filed his petition alleging that he sued upon an open account, and that “a sworn itemized bill of particulars” was annexed to the petition. Attached to the petition are a summary of the account, and a specific bill of particulars; but neither of these is verified. Thinking that perhaps the affidavit of verification was omitted by the clerk in the transmission of the record, we passed an order directing him to send up the verification; but he replies that the petition as filed with him is not verified. To the petition the -defendant filed a special demurrer, on the ground that it was not sufficiently specific. This demurrer was not well taken, and was therefore properly overruled by the court. The defendant answered, admitting the first paragraph of the petition, denying the third paragraph, and stating further that “he denies paragraph 3 of said petition, which states that said defendant is indebted to petitioner in the principal sum of $129.51, besides interest.” He then filed a plea of recoupment, which was stricken by the court on demurrer. After examining this plea of recoupment, we find that there was no error in this ruling. This plea having been stricken, the court, without proof, entered judgment in favor of the plaintiff, for the full sum claimed; and complaint is made of this judgment. To an understanding of this last ruling, it will be necessary for us to recite somewhat more fully than we have already done the form and the nature of the petition. The first paragraph alleges the residence of the defendant. The second paragraph alleges the indebtedness of the defendant upon the account, the amount of the same, and the fact that a sworn itemized bill of particulars is attached. The third paragraph alleges that the account is past due. The answer, as stated above, admitted the first paragraph, denied the third paragraph; it also denied “the 3d paragraph of said petition, which states that said defendant is indebted to petitioner in the principal sum of $129.51, besides interest.” It will be seen that in designating the paragraph of the petition which was thus being denied, the defendant used the figure “3” when he should have used the figure “2.” This is perfectly plain; for in addition to describing this paragraph by number, he also designated it by stating its substance. If the account in fact had been verified, under the act of 1901 (Acts 1901, p. 55), this form of denial would have been insufficient; for by that act, whenever suit is brought on open account and the same is verified by the plaintiff, any plea filed by the defendant must either deny that any indebtedness exists, or else state the amount which he claims he is indebted; and this requirement, of course, makes a simple denial of the account in general terms insufficient. But the plaintiff’s account was not sworn to; and therefore the defendant’s answer was sufficient to make an issue. This being so, the' court had no right to render judgment withoirt proof. For this reason alone the judgment is

Reversed.


text:
    1146.
    BUSH v. ROBERTS.
    1. While the fact that the surety upon an appeal bond is also the surety on a certiorari bond in the same ease would be good ground, if urged, for dismissing the certiorari in the superior court, it is not a ground upon which a writ of error, issued upon a bill of exceptions, may be dismissed.

      2. The real merits of a certiorari are determinable, upon the hearing, by the contents of the answer; and allegations of the petition, not verified by the answer, are worthless; but upon the presentation of a petition for certiorari, for sanction, all allegations of the petition which are clearly set forth are to be presumed to be true, where the petition is. verified as required by law.
    3. Where one is sued for a definite amount of the indebtedness of another, alleged to have been assumed by the defendant as an- original undertaking, a bill of particulars, specifying items of the account, is unnecessary. If one as an original undertaking, upon a consideration, has assumed to pay a definite amount of the indebtedness of another, it is none of his concern whether the debt thus assumed in behalf of the debtor is greater or less than his actual total indebtedness.
    4. An agreement on the part of A. B. to pay a certain account for C. D., in order to prevent the prosecution of C. D., is a promise to answer for the debt, default, or miscarriage of another, within the terms of the Civil Code, §2093, and must be in writing.
    5. In the absence of either fraud, accident, or mistake in the procurement of a written contract, parol evidence is inadmissible, to contradict or vary the terms of the writing.
    6. Objections propter defectum to a juror are of no avail after verdict.
    Petition for certiorari, from Miller superior court — Judge Worrill. April 1, 1908.
    Submitted July 2,
    Decided July 25, 1908.

      Perry D. Rich, for plaintiff in error.

      Bush & Stapleton, contra.
   Russell, J.

The plaintiff in error presented a petition for certiorari, for sanction, and the judge of the superior court refused to sanction it; and exception is taken to this refusal. A motion is made to dismiss the bill of exceptions, because it appears from the record that the surety who signed the certiorari bond-signed the appeal bond, on the appeal to the jury in the justice’s court. This would have been a good ground for a motion to dismiss the certiorari in the superior court, but in the present instance it is not good ground for dismissing the writ of error, for two reasons: first, because, until a petition for certiorari is sanctioned, there is no necessity for the execution of a bond; and in this case, the judge having refused to sanction the certiorari, the certiorari bond never became essential. It is well settled that neither the costs need be paid nor the bond given until after the sanction of the certiorari. But even if the certiorari had been sanctioned, so as to require the execution of a bond, while the defendant in certiorari could, upon the hearing in the superior court, have moved to dismiss the certiorari, for the reason that the bond was without security, and the court could properly have sustained this motion, still, if no such motion was made, as the statutory requirement as to security upon the certiorari bond is a provision for the benefit of the defendant in certiorari, his failure to make the motion to dismiss will be considered as a waiver of his rights upon that subject.

For the reasons stated in the fourth and fifth headnotes, we think that the judge of the superior court erred in not sanctioning the petition and ordering the issuance of the writ of certiorari. The two exceptions dealt with in these headnotes, which appear in the petition, are meritorious. Under the rule laid down in Linder v. Renfroe, 1 Ga. App. 58 (57 S. E. 975), whatever may be the truth as developed by the answer of the magistrate, the allegations of .the petition, properly verified, are to be taken as true until the coming in of the answer. %

There is no merit in one of the main contentions of the petitioner in certiorari. Where one is sued for a definite amount of the indebtedness of another, alleged to have been assumed by the defendant as an original undertaking, a bill of particulars, specifying items of the account, is unnecessary. If one, as an original undertaking, upon a consideration, has assumed to pay a definite amount of the indebtedness of another, it is none of his concern whether the debt thus assumed in behalf of the debtor is greater .or less than his actual total indebtedness.

We are of the opinion that under the statements of the petition, and its statement of the- testimony of the plaintiff, Boberts, himself, he would not be entitled to recover upon the terms of Bush’s verbal promise to pay the debt of Hardwick, it appearing that the only consideration, according to the testimony of Boberts himself, was his promise not to prosecute Hardwick if Bush would assume Hardwick’s debt of $16.80. This does not appear to be a good consideration to support an original undertaking on the part of Bush. And unless Bush agreed to pay the debt of Hardwick in consideration of a benefit to himself or a lawful benefit to the debtor, the promise would come eleariy within the provisions of the statute of frauds. Civil Code, §2693, par. 2.. It is also apparent that Boberts should not have been permitted to deny, in response to Bush’s plea of set-off, the express stipulation of the written contract which he admitted he had signed. It was immaterial that the justice erred in allowing Eoberts to testify as to the correctness of the account. Nor was there error in allowing the jury to take the original summons with them during their deliberations on the case. The justice properly overruled the objection as made, though, if a motion had been made to cover the judgment, it could properly and doubtless would have been granted.

The objection to the juror is without merit. In the petition for certiorari it is insisted that one juror served on the jury whose name was not upon the jury list of the county, and that this fact was unknown to the defendant until after the verdict and judgment. It is too well settled for argument, that objections propter defectum to jurors are of no avail after verdict.

The judgment of the judge of the superior court is reversed solely for the reasons stated in the fourth and fifth headnotes.

Judgment reversed.


text:
    1154.
    WALDEN et al. v. DOWNING COMPANY.
    1. “The purchaser of a bill, note or other negotiable security, transferable by delivery, who takes it before it is due, from one who himself has no title, bona fide and for value, acquires a good title, field, farther, that such title is not defeated by the want of such caution in the purchase as a careful and prudent man would exercise in the cqnduet of his affairs, or by gross negligence, but that it may be defeated by mala fides in the purchase, and that mala fides consists in notice, actual or constructive, of the fact that the security is not the property of the person who offers it, and a privaty [privity] with or participation in a fraud upon the true owner.” Matthews v. Poythress, 4 Ga. 287 (4) ; Bealle v. Southern Bank of Ga., 57 Ga. 274; Thomas v. Kinsey, 8 Ga. 430; Moye V. Waters, 51 Ga. 13; Shaw v. R. Co., 101 U. S. 564 (25 L. ed. 892).
    2. “Possession alone of a security negotiable by delivery before due, is presumptive evidence of title thereto; but when such security is proven to have been stolen or otherwise appropriated in fraud of the rights of the owner, then the onus is upon the possessor to show that he took it bona fide and for value; and upon his showing that, then the owner must show mala fides — that is, that the possessor has notice, actual or constructive, of the title of the true owner.” Merchants’ Bank v. Trustees, 62 Ga. 272 (4).
    3. One who takes a negotiable instrument as collateral security for a pre-existing debt is a purchaser thereof, within the purview of the foregoing rule. Gibson v. Connor, 3 Ga. 47; Kaiser v. United States Bank, 99 Ga. 258 (25 S. E. 620).
    Complaint, from city court of Sandersville — Judge Jordan. March 25, 1908.
    Argued July 2,
    Decided July 25, 1908.

      T. W. Hardwick, A. R. Wright, W. E. Armistead, for plaintiff in error. Evans & Evans, Bennet & Conyers, contra.
   Powell, J.

The case is controlled by the principles and authorities cited in the headnotes. The ease as presented here is, that Mrs. Walden, for valuable consideration, executed a negotiable promissory note to her daughter Mrs. Thomas, who indorsed it in blank and deposited it with her husband for safe-keeping. A partner in business of Mr. Thomas, in some manner, without the consent of Mrs. Thomas, secured possession of the note, again indorsed it in blank, and transferred' it to the Downing Company, as collateral security for a pre-existing debt which he owed them. The evidence upon the question of bona tides of the Downing Company was sufficient, prima facie, to carry the burden resting upon them, under the principles stated in the second headnote. The evidence of the defendant on this subject, including that offered, but rejected by the court, was not sufficient to overcome this prima facie case. On this point see Shaw v. R. Co., 101 U. S. 564 (25 L. ed. 892). Judgment affirmed.


text:
    1156.
    McConnell v. Folsom Brothers.
    1. Notice to the opposite party of the sanction of a wilt of certiorari, and of the time and place of hearing, at least ten days before the sitting of the court to which the same shall he returnable, is indispensable, in the prosecution of a petition for certiorari; and failure to give such notice renders the entire proceeding void, and any judgment, except one of dismissal in accordance with the mandatory requirements of §4644 of the Civil Code, is nugatory.
    2. The notice required may he waived, hut the waiver must he in writing; ' and either service of the notice or the written waiver must .appear in the record.
    Certiorari, from Berrien superior court — Judge Mitchell. March 26, 1908.
    Submitted July 2,
    Decided July 25, 1908.

      Buie & Knight, for plaintiff in error. C. E. Parrish, contra.
   Russell, J.

Folsom Brothers procured the sanction of a petition for certiorari, which was duly filed, and the costs were paid and bond was given. The judge of the superior court sustained the certiorari and ordered a new trial. The plaintiff in error excepts to this judgment, upon the ground, among others, that no notice of the sanction of the certiorari and of the time and place of hearing had been given, as required by law, or waived. We do not deem it necessary to consider the other grounds of exception, or to determine whether the judgment sustaining the certiorari would have been correct if the case had been properly before the lower court for adjudication. We are clear that the judgment sustaining the certiorari is erroneous. There is no evidence in the record which even tends to show that the notice required by the Civil Code, §4644, was given, or that such notice was waived either by the defendant in certiorari or by his counsel. The ten days’ notice to the adverse party, which is provided by law, is absolutely essential to the existence of a certiorari; it is, in a sense, the process (the only process) which brings the defendant in certiorari into the court; so much so that, while it has been held that a certiorari is a suit, nevertheless it can not be renewed if once dismissed for lack of the statutory notice. In Glenn v. Shearer, 44 Ga. 18, Judge Warner, comparing a certiorari to a writ of error, says: “The certificate of the judge to the bill of exceptions is the writ of error to bring up a case from the superior court to this court, and the ten days’ notice of the signing and certifying of the same has always been required to appear on the record. The sanction of the certiorari by the presiding judge is the writ of error which brings up the case from the justice’s court to the superior court, and the written notice of such sanction should appear on the record; otherwise it will be presumed not to have been given.” In Franke v. May, 86 Ga. 660 (12 S. E. 1068), Chief Justice Bleckley, after quoting the above-mentioned section, says: “How' this statute has generally been construed and administered may be seen by reference to the following cases, besides others. Granade v. Wood, 34 Ga. 120; Glenn v. Shearer, 44 Ga. 16; Bryans v. Mabry, 72 Ga. 208; Southern Express Co. v. Wheeler, Id. 210; McAlister v. State, 77 Ga. 599 (3 S. E. 163). The general spirit of the cases is, that the mandate of the statute, ‘the certiorari shall be dismissed/ is not to be disobeyed where there has been a failure to give the written notice required.” And he qualified the opinion by ruling- (p. 663) that, “for the lack of such notice, there was no proper case pending in the court.” In the decision he restricted the ruling in Milam v. Sproull, 36 Ga. 393 (in which the opinion was not rendered by a full court), to its special facts. In addition to the cases above cited, our ruling, that the judge should have dismissed the certiorari, for the reason that no service of the notice required by law or any waiver thereof appeared in the record, is sustained by the decisions in Bonds v. Pierce, 74 Ga. 837, Mercer v. Davidson, 80 Ga. 496 (6 S. E. 175), Sheppard v. Walker, 118 Ga. 47 (44 S. E. 801), Hardy v. Miller, 115 Ga. 108 (41 S. E. 255), International Book Co. v. Fiel, 125 Ga. 514 (54 S. E. 360).

In Bramlitt v. Kulman, 121 Ga. 92 (48 S. E. 713), Justice Evans, delivering the opinion, calls attention to the strictness of the observance which is required with reference to §4644, and cites instances of rulings showing the mandatory character of its provisions. He says: “The general spirit of the decisions of this court, applying and construing Civil Code, §4644, is that the mandate of the statute, ‘the certiorari shall be dismissed/ is not to be disobeyed where there has been a failure to fully comply therewith. Franke v. May, supra. Thus, in Bunn v. Henderson, 113 Ga. 609 (39 S. E. 78), the entry of the sheriff was that he had, on a certain day, served the defendant in certiorari with written notice that the certiorari would be heard at the April term of the superior court; and the service was held insufficient, because it did not affirmatively appear from such entry that the certiorari had been sanctioned.” In the Bramlitt case, supra, the notice was held insufficient, notwithstanding a coincidence between the nadies of the defendant and the plaintiff; because the name of the magistrate who tried the case was incorrectly stated in the notice, though the name of the magistrate need not have been stated at all. It is true, it was held in Jones v. Gill, 121 Ga. 96 (48 S. E. 688), following the ruling in McAlister v. State, supra, that the plaintiff in certiorari may amend his return of service of the notice by verifying it under oath; and in the McAlister case, supra, Judge Bleckley says: “The superior court makes record. When record is needed it manufactures the article if the proper materials are at hand.” This court is confined.to records already made. But while we mark this distinction, it does not- appear in the record in the present case that the defendant in error took any steps to have a memorial of the service registered in the superior court; and, therefore, the superior court was obliged to presume that there had been no notice served, .and that the certiorari was a nullity. Judgment reversed.


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    1160.
    LUKE v. CANNON.
    1. Unless a witness has deceived and entrapped the party introducing him, such party will not be permitted to discredit or impeach him by proof of alleged former contradictory statements not made to the party, but to others. For one to impeach his own witness, voluntarily called by him, it must appear that the previous contradictory statements relied upon for purposes of impeachment were unknown to him, and that he was deceived and entrapped, and thus unwittingly damaged, by statements different from what he expected. It must also appear that the party claiming to have been entrapped, or his counsel, ascertained from the witness himself, and not from hearsay, the testimony which it was expected would be given when the witness was placed upon the stand.
    2. Declarations of a defendant in fi. fa. in a claim ease, as to his title, made after levy, are inadmissible for any purpose.
    3. A witness can not be impeached by proof of contradictory statements, until his attention has been directed to the time, as well as the place, at which the alleged previous contradictory statements are alleged to have been made. The foundation for impeachment by means of previous contradictory statements is not properly laid by asking the witness as to making such previous contradictory statements to a person different from the one to whom the party attempts to show by the impeaching testimony the contradictory statement was made.
    4. The evidence of previous contradictory statements related to have been made by a witness sought to be impeached is not affirmative proof of the truth of such previous statements.
    Claim, from city court of Cairo — Judge Singletary. March 16, 1908.
    Submitted July 2,
    Decided July 25, 1908.

      W. C. Snodgrass, for plaintiff in error.

      Ledford & Terrell, contra.
   Russell, J.

The sheriff of Grady county levied an execution, issued in pursuance of the foreclosure of a laborer’s lien in favor of Joe Cannon, upon certain personal property, as the property of W. S. Sherrod; and a claim to a portion of this property was interposed -by Eoscoe Luke. Upon the trial of the claim in the city court of Cairo (the judge acting both as judge and jury) the property claimed was found subject to the fi. fa.; and the claimant excepts to this judgment. He excepts also to certain rulings upon objections to testimony; and these exceptions are preserved by reason of the fact that the bill of exceptions containing these special assignments of error was certified within thirty days after the rulings complained of.

Upon the trial of- the case the claimant testified, that certain lumber levied upon on the right of way of the Atlantic Coast Line Eailroad Company near Pine Park, and about 8,000 feet of lumber of W. S. Sherrod near Pine Park, which had been levied upon, belonged to him; that he had paid for it and it had actually been delivered to him sometime prior to the levy of the laborer’s lien. In accordance with the act of 1905 (Acts of 1905, p. 84), the judge certified to certain additional evidence to that related in the-original bill of exceptions, as follows: “The lumber covered, by my claim belongs to me, because I paid for sawing it, and it had actually been delivered to me, and was so delivered before I finished paying for it. In some instances I paid direct to the hands for the labor at Mr. Sherrod’s mill, by paying drafts drawn on me, payable to the hands. The lumber was delivered to me by Mr. Sherrod’s statement prior to my paying him anything. At that time the lumber was on the right of way of the Atlantic Coast Line Eailroad at Pine Park, with the exception of one car of about 8,000 feet, more or less, of 1x9, 9'-3" long. This, Mr. Sherrod represented to me, was cut and either stacked or piled at his mill. The car I paid Mr. Sherrod for was this particular lumber. I had nothing to do with the operation of the said sawmill. I had nothing to do with the employment of the hands. In some instances I paid them direct because Mr. Sherrod drew on me in their favor. I do not think that this was for cutting this particular timber. I rather think it was not. It was not on cars at time of levy. Mr. Sherrod was to load the lumber on,the cars at Pine Park, Ga. There was no count of the lumber before the levy, only by Mr. Sherrod. I don’t know exactly what it measured up, but, by checking furnished me by the parties who load it on ears for Mr. Sherrod, it was about 40,000 feet. The count made by Mr. Sherrod was to be verified by my count in shipping. Mr. Sherrod guaranteed the count. The lumber was not to be delivered before it was paid for, but it was to be cut before it was paid for, and it was cut before I paid him the money.”

At the conclusion of the claimant’s testimony, the plaintiff in fi. fa. introduced, as a witness, Sherrod, the defendant in fi. fa. Though introduced in behalf of the plaintiff, Sherrod sustained the contention of the claimant, by testifying that the lumber in controversy had been paid for by Luke prior to the time of the levy, and the lumber itself delivered to Luke in consideration thereof. Thereupon counsel for the plaintiff in fi. fa. stated to the court, that he had been misled and entrapped by the witness, Sherrod, that the testimony of this witness was a surprise to him and contradictory to statements made to persons other than the plaintiff in fi. fa. or his counsel, and that these contradictory statements had been communicated to counsel for the plaintiff in fi. fa., and that he desired to introduce new testimony to impeach and contradict the testimony, of Sherrod. It does not appear from the original bill of exceptions that any foundation for the impeachment of this witness was laid, but it is certified, in the supplement to the bill of exceptions, that counsel for the plaintiff in fi. fa. asked Sherrod the following question: “Did you not, in the same room where this trial is being held, tell me that the lumber was not to be Luke’s lumber at all, but to be shipped to parties in Chicago, on orders given by them, and did you not show me said orders' and state to me, ‘1 guess this will show where it was to go and did you not make similar statements to D. K'. Collins and T. D. G-waltney?” To which the witness answered, “I do not recollect.” Whereupon the attorney for the plaintiff in fi. fa. stated in his place that he had been entrapped by the witness, Sherrod, by statements of the witness, previously made to him and to others, to the effect that the lumber was not to be Luke’s, but only the proceeds of the sale were to be his. Three witnesses were then introduced, who testified, that they had conversations with the witness Sherrod, concerning the title of the lumber levied upon, and that the conversations were after institution of the proceedings, and after the levy. To the testimony of each of these witnesses counsel for the claimant objected, upon the ground that the conversations with Sherrod were subsequent to the pendency of the proceedings or litigation involved; also because Sherrod was a witness for the plaintiff in fi. fa.; and also because the statement of counsel, as to his being entrapped, did not show a legal entrapment; and further, that no sufficient ground was laid for the impeachment of Sherrod. These objections were all overruled by the court.

Counsel for the claimant also moved to exclude the testimony of Collins and Gwaltney, after it had been delivered; because the statements related, as having been made by Sherrod to the witnesses, were made subsequently to the levy. The court overruled the motion to exclude this testimony, holding, that it was admissible for the purpose of affecting the credibility of the witness sought to be impeached, in reference to his statement in regard to delivering lumber to Luke, but that any statement made by the witness Sherrod, the defendant in fi. fa., after the levy, would be inadmissible.

We think that the objections urged by counsel for the plaintiff in error, to the introduction of testimony in relation to contradictory statements alleged to have been made by the witness Sherrod, should have been sustained, and that the court erred in not withdrawing this testimony, upon motion, after it was introduced. Section 5290 of the Civil Code declares that “a party may not impeach a witness voluntarily called by him, except where he can show the court that he has been entrapped by the witness by a previous contradictory statement.” It must appear that the party or his counsel had been informed directly from the witness, either by hearing him speak or swear or by reading a written report of his previous statement upon the same subject. It has never been ruled, so far as we are aware, that counsel can introduce a witness and vouch for his veracity, and then claim to have been entrapped, upon the ground that he relied upon statements made by the witness to others, not parties to the cause, which were repeated by said third parties to himself or his client, and that, relying upon this second-hand information, he introduced the witness without being apprised of what he would really testify. One who claims to have been entrapped by a witness, voluntarily introduced by him, must not only show that he-expected the testimony of the witness to be different, but that he is surprised that the testimony adduced is different from the substance of the statement made by the witness, prior to the trial, to himself or his client. Counsel in this case stated that he was surprised, and in his statement covered one point in the case, so far as the contradictory statement to himself was concerned, by calling the attention of the witness, sought to be impeached, to the place where the alleged contradictory statement .was said to have been made; but the attention of the witness was not called to the time; and the provision of the code, upon this subject, is that the attention of the witness sought to be impeached must be called, as near as possible, to the time, place, and other surrounding circumstances. As to the other witnesses, with reference to whom the defendant in fi. fa. was interrogated, the attention of the witnesses was not called to either time, place, or any circumstance which would enable them to refresh their recollection. They were merely asked if they did not have a conversation with certain named witnesses upon a given point. The attention of the witnesses was not called to the alleged previous conversation with the witness Kent at all in any way. The law is so particular in its requirements of caution upon the part of one who introduces a witness to the court, and thereby vouches for his veracity, that a strict showing is required before one will be allowed to repudiate a witness, voluntarily called by him, by attempting- to impeach him. It is well settled, of course, that one may contradict his own witness by showing the truth to be different from what the particular witness testified. Cronan v. Roberts, 65 Ga. 678 (2); Christian v. Railway Company, 120 Ga. 317 (47 S. E. 923); Moultrie Repair Co. v. Hill, 120 Ga. 732 (48 S. E. 143); McElmurray v. Turner, 86 Ga. 217 (12 S. E. 359). But “a party shall not be permitted to discredit his own witness, unless he first shows to the court that he has been entrapped by previous contradictory statements made by the witness. It is not sufficient that he shall have made contradictory statements; such statements must have deceived, and led the party complaining to introduce him, and thus, unwittingly, to have been damaged by statements different from what he expected. "Under such circumstances, the law permits a party to violate that statutory rule which assumes that one who brings a witness before a court has, at least, confidence in his truthfulness.” McDaniel v. State, 53 Ga. 254. In that case the Supreme Court remarked upon the fact that the solicitor-general had not stated that he put up the witness by virtue of any false impression. This statement is always necessary where one elaims to have been entrapped; because it is conceivable that counsel or a party might talk in advance with a witness and receive statements from him favorable to their contention, and yet be so well aware of his unreliability as to be thoroughly aware of the uncertainty of what he might testify when put upon the stand. “Unless a witness has deceived and entrapped the party introducing him, such party can not impeach his credit by evidence of his previous declarations at variance with his sworn testimony.” Dixon v. State, 86 Ga. 754 (13 S. E. 87). In Marsh v. South Carolina R. Co., 56 Ga. 277, the court held that it was not a case of surprise. “The plaintiffs counsel did not profess to be surprised by his having testified differently from the expectations which he had raised by his previous statements. Greenleafs Ev. §442.”

Declarations of a defendant in fi. fa. in a claim case, as to his title, made after .levy, are inadmissible for any purpose. The defendant in error insists, however, in his brief, that though such statements are generally inadmissible, they may be used for the purpose of impeachment; and in his supplemental certificate the trial judge stated that he ruled that these declarations could not be used for. any other purpose. Only contradictory statements as to material matters can be used for the purpose of impeachment; and by “material matters” are meant matters competent to prove one side or other of the issue, and admissible for that purpose. If the testimony of the defendant in fi. fa., as to the title of the property levied upon and which has been claimed by another, are inadmissible, they become immaterial; and if immaterial and inadmissible, it would not matter that previous statements upon the same subject were contradictory to those made upon the stand. The court should, therefore, have sustained the objection of counsel for plaintiff in error upon this subject, and excluded the testimony.

The principle announced in the third headnote is laid down in §5393 of the Civil Code, and needs no elaboration, except with reference to the latter portion of this headnote. It appears from the question asked the witness Sherrod, when the ground for impeachment was being laid, that he was not asked anything with reference to the conversations with the witness Kent, the witness Gwaltney, and the witness Collins; he was asked if he did not make certain statements to counsel for the plaintiff in fi. fa. and similar statements to G-waltney and Collins, but neither the time nor the place; nor the surrounding circumstances of the conversation inquired about, with Gwaltney and Collins, were suggested to the witness, so as to give him an opportunity of refreshing his recollection. So far as laying the foundation is concerned, he was not informed, by the-previous question with reference to the conversation with counsel for the plaintiff in fi. fa., as to when this conversation occurred. So far as any previous statements to the counsel are concerned, the impeachment was not complete, because no statement or testimony on the part of the attorney appears in the record, detailing what statements, if any, the witness sought to be impeached had previously made to him.

Even, if it be conceded that a proper showing was made that the plaintiff in fi. fa. and his counsel had been entrapped by a witness upon whose statements and veracity they relied, and that thereafter the witness by whom they were deceived was successfully impeached, still we are constrained to sustain the plaintiff in error’s exception to the final judgment in the case. We- are compelled to hold that, under the unimpeached evidence, the claim should have been upheld and the property found not subject. If all the evidence be excluded by impeachment, except that of the claimant himself (and this must be done, if the impeaching testimony was believed), then the claimant established his title to the property. Delivery may be constructive as well as actual, and the facts testified to by him, though some of the testimony might have been objected to, clearly established the fact that he paid for the lumber prior to the foreclosure of the laborer’s lien and its levy.

It is insisted, in the brief of the learned counsel for the defendant in error, that the claimant admitted a prima facie case by admitting the property to be in the possession of the defendant at the time of the levy. This may be true as a matter of fact, but it does not appear in the record that the claimant made any admission. The original bill of exceptions simply purports to give such testimony as the plaintiff in error deemed material to a clear understanding of the errors complained of. Under the rule this is all that is required, and this court can not presume that there was other evidence or that there 'was not other evidence. There is no presumption either way, further than that the plaintiff in error has embodied in his bill of exceptions all he desires considered by the reviewing court. Nor does the supplemental record, certified by the ‘trial judge, contain any statement that the claimant admitted a prima facie case, or negative the idea that the plaintiff in fi. fa. was required to prove that the property was in the possession of the defendant at the time of the levy. The entries of levy which appear in the record, so far from stating that the property levied upon was in the possession of the defendant in fi. fa., state that it was on the right of way of the railway company, The giving of bond by the claimant admits nothing more than that the property has been levied upon.

On the trial now under review, we think that the evidence, the testimony of Luke not being contradicted, demanded a finding in favor of the claimant; and consequently the judgment finding the property subject was erroneous. Judgment reversed.


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    1178.
    HANIE v. TAYLOR.
    Courts of review are not created to review or correct errors, no matter liow flagrant, which, operate to the benefit of the party complaining thereof. The striking of a party defendant on appeal, against whom a judgment was rendered in a justice’s court, operates to discharge such defendant from any liability on the cause of action which is thus, on appeal of one of the parties defendant, being investigated de novo.
    Appeal, from Hart superior court — Judge Worley. March 16, 1908.
    Submitted July 15,
    Decided July 25, 1908.
    W. L. Hodges, for plaintiff in error. J. H. Skelton, contra.
   Russell, J.

Taylor brought suit against Naomi F. Hanie, as principal, and A. P. Hanie, as securitjq on a note. Judgment was obtained in the justice’s court against both defendants. From this judgment an appeal was entered to the superior court. When the case was called for trial on the appeal, counsel for defendants moved to amend the appeal bond, by adding the name of Naomi F. Hanie, principal, per A. P. Hanie, agent or attorney in fact. The amendment also alleged that Naomi F. Hanie authorized A. P. Hanie to enter appeal for her, and that she ratified his authority in writing and in open court. The superior court disallowed this amendment, and, after disallowing the amendment, granted a motion of the plaintiff’s counsel, striking N. F. Hanie as a party to the suit on appeal. Exception is taken to both rulings.

There can be no question that the court erred in striking Naomi F. Hanie, as a party defendant, from the suit. An appeal is a proceeding de novo, and calls for an investigation of the merits of the whole case, and brings up all of the parties to a suit, regardless of whether they may have appealed or not. Every party to the case in the lower court has the right to appear and defend or prosecute the action, as the case may be. Civil Code, §4469. The early decisions of the Supreme Court as to effect of the appeal upon parties not appealing are rendered nugatory by the provision of the code which was adopted subsequently to the time when these opinions were delivered. This fact was adverted to by Judge Lumpkin in Pierce v. Chapman, 31 Ga. 674.

In the present state of the law, all defendants, except those in whose favor the judgment may have been rendered in the lower tribunal, are brought before the court trying the appeal and are bound by its decision, even though only one of several defendants may have entered an appeal. Lewis v. Armstrong, 69 Ga. 752; Murray v. Marshall, 106 Ga. 522 (32 S. E. 634). In this case, therefore, whether the judge was right or not in holding that only A. P. Hanie appealed, the effect of A. P. Hanie’s appeal was to institute an investigation de novo into the liability of N. F. Hanie. The effect of the appeal was to set aside the judgment in the justice’s court against her as effectually as that against A. P. Hanie. Even though she may not have appealed, it was her right to participate in the defense of the case, and to urge any proper legal reason why judgment should not be entered against her in the superior court, which, by law, she was entitled to use. The judg;e erred in striking her name from the case, but inasmuch as the result of this action upon his part was to relieve her absolutely of any liability upon the note (the judgment heretofore rendered in the justice’s court being destroyed by the appeal of A. P. Hanie), nothing is presented in her bill of exceptions of which she has a right to complain; and for that reason the judgment of the lower court must be affirmed. A bill of exceptions must not only show error, but also injurjr, before the courts will be called upon to af-' ford relief. In,the present case, as Naomi F. Hanie has been relieved from all liability upon the note, by the action of the judge in striking her as a party to the case upon appeal, the effect of her bill of exceptions is merely to ask an opportunity to be held liable when she has already been discharged. Judgment affirmed.


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    1186.
    JOHNSON v. RYCROFT.
    1. The nonsuit was proper, because, admitting all the facts proved and all reasonable deductions from them, plaintiff ought not to recover.

      2. (a) In order to bind the promisor, the written promise of one who undertakes to pay the debt of another must contain a clear statement of the agreement, indicate .knowledge of the amount promised to be paid, and show who is the promisee, as well as the promisor.
    (b) The terms of a promise to assume the debt of another can not be settled by parol.

      (c) The promise to pay the pre-existing debt of another is nudum pactum, unless some benefit be secured to the debtor or to the promisor.
    Complaint, from city court of Dawson — Judge Edwards. April 20, 1908.
    Submitted July 15,
    Decided July 25, 1908.

      Raines & Gurr, for plaintiff. H. A. Wilkinson, for defendant.
   Russell, J.

The plaintiff in error excepts to the grant of a nonsuit. It appears perfectly plain to us that the nonsuit was' properly" granted. Johnson sued Eycroft for. $175.86 and interest. The petition alleged, that during 1906 he had in his employ one Charley. Coffee, as a laborer, and advanced to him money and other items, which.exceeded his labor by the sum of $175.86, as shown by an itemized account attached to the petition; that on November 29 Eycroft wrote a letter to the plaintiff, agreeing to pay Coffee’s account if the plaintiff would write and let him know the amount; and the plaintiff notified him of the amount' by return mail, and ■afterwards looked to him for payment, but he refuses to pay the same. A copy of Bycroft’s letter is attached to the petition. The defendant answered by a general denial of each paragraph of the petition.

It is insisted, in the first place, by the plaintiff in error that a nonsuit should not have been granted, because he proved his case as laid. We think that he failed in this particular. Placing the most favorable construction upon his evidence with relation to the letter he wrote in reply to Bycroft’s letter, he certainly did not prove that Byeroft was indebted to him more than $150; because he did not require more than that at Bycroft’s hands. It would hardly be reasonable to assume that the defendant was different from all the rest of mankind, in his desire to pay more, in order to put himself in the debtor’s shoes, than was demanded of him. In Johnson’s letter to Bycroft, as testified to by him, he himself said that he would take $150; yet he sued for $176.85. It is not necessarjq however, to pass upon that point, because the plaintiff in error asserted that his action did not depend upon any offer of Bycroft to buy his account against Coffee, but that the suit is based wholly upon the promise to pay the debt of another. This being true, we have no hesitation in approving the ruling of the trial judge, that no such promise was proved as would authorize a recovery.

The promise in writing, relied upon, must depend upon Bycroft’s letter. It is as follows: “I have learned where Charley Coffee is. What does he owe you, and what will you take for it P I will pay it and risk getting him to work with me. Let me hear from you by return mail, before he gets further off.” It is manifest that the intention of the writer was to ascertain, in the first place, what amount Johnson would take, — to inform himself what he would have to pay. The words “I will pay it,” taken alone, might lend color to the claim of the plaintiff in error, that it was an unequivocal promise to pay any sum, no matter how large, that Johnson might write him that Coffee owed him. To show that Bycroft did not mean to promise to pay an account of several thousand dollars for an ordinary laborer (in ease that Johnson had written to him that such was the amount of the indebtedness), and to indicate clearly what was in his mind in using the language, “I will pay it,” the sentence which immediately precedes this alleged promise is of unusual significance. “What does he owe you, and what will you tahe for it?” It must be evident to any one that Bycroft intended to be governed more by Johnson’s statement as. to what he would take for Coffee’s account than by the amount that Coffee might owe Johnson. And to show that this was plain to Johnson, he replied, by letter to Bycroft, that he would take $150 for a $175 claim. If, then, the plaintiff’s suit is for recovery of the amount of Coffee’s debt, on Eycroft’s promise to pay it, his proof, on the contrary, shows an offer to sell the account for $150. "When this offer was made, Eycroft had the option of either accepting or declining the offer. By absolute silence and failure to reply to Johnson’s letter, he declined to pay the $150 for the account; and no contract resulted between the parties. This is the only rational construction of the evidence; and the court properly construed it. The contention of the plaintiff, however, is, that the silence of Eycroft and his failure to reply to his letter, in which he told him the amount of Coffee’s indebtedness to him, is only evidence of refusal to pay an obligation he had already assumed; that all that was necessary upon his part, in order to complete the contract by which Eycroft would be bound for Coffee’s debt, was that he should inform Eycroft of the amount of the debt. This makes no material difference. Eycroft’s obligation to pay Coffee’s debt, if it existed at all, must have its origin in the written promise to pay it. So far from Eycroft’s knowing the amount he was assuming at the time'he made the alleged promise, the very letter shows that he was inquiring as to that point. Therefore the amount was lacking, in Eycroft’s promise. When he said he would pay it, what amount was he to pay ? All of the terms of the contract in this case had to be supplied by parol evidence; consequently the contract can not be enforced. Parol evidence was inadmissible for this purpose. Civil Code, §2693, par. 2.

Furthermore, the case is absolutely controlled by the decision in Davis v. Tift, 70 Ga. 53 (2) : “A .promise to pay the pre-existing debt of another, without any detriment or inconvenience to the creditor, or any benefit secured to the debtor in consequence of the undertaking, is a mere nudum pactum.” There was no consideration whatever for Eycroft’s promise, even if it be construed to be unconditional. The plaintiff perhaps attempted to supply this defect by evidence; for it may be gathered that perhaps, by Eycroft’s payment of the debt, Coffee would escape a prosecution for abandoning his contract. If, however, it was the intention of the plaintiff to show that Eycroft was guilty of violating the labor-contract law, the evidence fell far short of what would be necessary. Nothing more is shown than that Coffee made a contract to work on a turpentine farm, and left before the contract expired. Neither the time for which the contract was made was stated, nor what, if anything, was to be paid Coffee, nor that he did not have >good cause for quitting. These material points are entirely absent from this record. There is not a scintilla of evidence that either Coffee or Eycroft would have derived any benefit from Eycroft’s promise to pay Coffee’s debt.

Judgment affirmed.