author: Jenkins, P. J. Jenkins, P. J.

text:
    16115.
    McLamb v. Phillips.
   Jenkins, P. J.

1. While statutes imposing license taxes and providing for their collection, when designed merely to raise revenue, as in the license of real-estate agents, do not impliedly nullify contracts made in contravention of their provisions (Toole v. Wiregrass Development Co., 142 Ga. 57, 60-63) ; the general rule of law is that where the license required by the statute is not imposed only for revenue purposes, but requires registration or licensing primarily for the purpose of protecting the public from acts mala in se, or detrimental to good morals, or from improper, incompetent, or irresponsible persons, as in the case of unregistered or unlicensed druggists or physicians, the'ir imposition amounts to a positive prohibition of a contract made without a compliance with and in violation of the statute, and by implication renders such a contract void and unenforceable. Taliaferro v. Moffett, 54 Ga. 150, 153; Murray v. Williams, 121 Ga. 63; Jalonick v. Greene County Oil Co., 7 Ga. App. 309, 311; Singleton v. State, 14 Ga. App. 527 (3), 533; 37 Corpus Juris, 260; 17 R. C. L. 560.

2. The act of 1904 (p. 79), embodied in the Civil Code (1910), §§ 3446-3465, prohibits any “person, firm, or corporation” from engaging “generally, regularly, or collaterally to any other business, in the business of making loans on . . wages, or salaries, or in the business of buying wages or salaries, without first obtaining a license for carrying on such business.” (§ 3446.) Such a license, where the business is to be conducted within the limits of an incorporated city or town, must be obtained from the proper municipal officer issuing licenses, and where conducted without such limits, from the ordinary of the county. (§ 3447.) As a preliminary condition to the granting of such a license, the applicant is required to file with the mayor of the town, or the ordinary of the county,, a five hundred dollar bond, conditioned upon “the faithful performance by the licensee of the duties and obligation pertaining to the business so licensed, and the prompt payment of any judgment which may be recovered against said licensee on account of damages or'other claim arising directly or collaterally from any loan of money or sale of wages or salary.” (§ 3449.) The only provision of this act that relates to the raising of revenue or to monies derived from the issuance of such licenses and the giving of such bonds is that the “ordinary or officer issuing the license shall receive, for each license so issued, a fee of one dollar and fifty cents.” Thus, the manifest purpose of these statutes is not the raising of revenue, but is the protection of that portion of the population which, because of small means or temporary adversity, is compelled to resort to the borrowing of money on small personal property security from, or the sale of salaries to, improper or irresponsible lenders who have failed to comply with the statutes provided for such protection.

Decided July 20, 1925.

Adhered to on rehearing, September 2, 1925.

Certiorari; from Chatham superior court—Judge Meldrim. November 11, 1924.

H. P. Gobi, R. R. Jackson, for plaintiff.

F. R. Youngblood, Dorsey, Howell & Heyman, Mark Bolding, for defendant.

3. Irrespective of whether or not the judge of the superior court was right in overruling the certiorari of the lender or purchaser of the defendant debtor’s salary from a judgment of the municipal court* in favor of the defendant, on the ground that the transaction was a loan and not a sale, the judgment of the superior court was nevertheless correct, since, under the undisputed evidence and the testimony of the plaintiff himself, he was at the time of the contracts in question “engaged in the business of buying wages and salaries,” as defined by the statute, and “had not complied with the requirements of the act of 1904, embodied in the code sections 3446 et seq. of the Code of 1910, as to giving bond and making oath and obtaining the license required.”

Judgment affirmed.

Stephens and Bell, JJ., concur.

ON REHEARING.

Jenkins, P. J.

This cause arose on a petition by an alleged purchaser or assignee of wages, against the employee, to collect the amounts represented by two alleged assignments or bills of sale, one for $20.40 and the other for $6.80. The municipal court found for the defendant, and the superior court overruled the plaintiff's certiorari, basing its judgment primarily on the ground that the trial court, under the evidence, was authorized to find that “the transaction was not a bona fide purchase of wages but a loan.'' There was testimony, as referred to in the judgment, that $15 was actually paid for the $20.40 alleged assignment or sale, and that, several months after this alleged assignment or bill of sale was executed, the defendant executed another assignment in the same amount, but no money was paid to him, such assignment being made “for no other consideration than the further forbearance to collect the amount” previously assigned; and that on the latter date the $6.80 assignment was executed, $5 being paid as its consideration. The plaintiff testified also, in referring to the $20.40 assignment, that “there had been several previous transactions . . involving the same principal sum and the same rate of discount ” that “it was often several months before he received payment of the money advanced, and that he forbore enforcing the payment by sending in notice to the employing railroad company or otherwise, for the reason that it would inconvenience [defendant] and everybody concerned.” We can not say that, under this testimony, the municipal court, sitting without a jury, and the superior court on certiorari, were unauthorized to find, as to the $20.40 transaction, that, if the original transaction were a bona fide purchase, “there was no room for other transactions involving the same principal sum, neither was there room for the application of a rate of discount,” and that “forbearance has no place” in such a transaction. But there appears to be no evidence authorizing such a finding as to the $6.80 assignment. For this reason, and as an additional reason why the judgment of the court below was correct as to the $20.40 item, irrespective of such finding, the original syllabus of this court was planted upon the further ground that both transactions were illegal and unenforceable, even if they be taken as bona fide sales or assignments, since the plaintiff admittedly was then engaged in the “business of buying wages or assignments,” and had failed to give the preliminary bond and obtain the license required by the act of 1904, embodied in sections 3446 to 3465 (inclusive) of the Civil Code of 1910. Ga. L. 1904, p. 79. It is only necessary to consider this phase of the ruling, to which the motion for rehearing and the able and scholarly briefs of counsel are directed.

While it is the duty of courts and juries to strip from an alleged assignment or sale of wages the false and fictitious vestments in which it may be clothed, and to look to real facts and circumstances which manifest a usurious loan, notwithstanding express written verbiage, both the Supreme Court and this court have uniformly sustained bona fide actual assignments and sales made in conformity to statute. Jackson v. Johnson, 157 Ga. 189; Covington v. Rosenbusch, 148 Ga. 459 (1); Cen. of Ga. Ry. Co. v. King, 137 Ga. 369; King v. State, 136 Ga. 709; Atlanta Finance Co. v. Lunsford, 32 Ga. App. 787 (1).

The legislature, by the act of 1904 (Civil Code §§ 3446-3465), •as quoted in the second division of the syllabus, enacted an express and positive prohibition against any person engaging “generally, regularly, or collaterally . . in the business of buying wages or salaries, without first obtaining a license for carrying on such business,” and required the giving of a bond, for the benefit of persons who might be injured by acts or omissions under the statute, as a condition precedent to such a license. This law, in both its original title and language, covers a legitimate business for the bona fide purchase of wages or salaries, as well as businesses and pretended transactions which are merely camouflages for usurious loans and discount charges. There seems to have been no subsequent legislation affecting this manner of licensing and transaction of such a legitimate business and sales. While the act of 1920 (Ga. L. 1920, pp. 215-222; Park’s Code Supp. 1922, §§ 1770 (a)-(s)), by its title and language, regulates “the business pf making loans of $300 or less . . and the assignment of wages or salaries, earned or to be earned, when taken as security for any such loan” (italics ours), it has been held not to cover a bona fide assignment or sale. Tollison v. George, 153 Ga. 612 (1), 614; Atlanta Joint Terminals v. Walton Discount Co., 29 Ga. App. 225, 227. See also, as to other legislation regulating rates of interest and discount, Ison Co. v. Atlantic Coast Line R. Co., 17 Ga. App. 459; Jackson v. State, 5 Ga. App. 177. The act of 1920 nullifies and precludes enforcement of certain loans and salary assignments given to secure the same when made in contravention of its provisions as to special licensing by the State bank examiner and as to rates of interest or discount, so that the present transactions would be unenforceable thereunder, if they be treated as loans, as was doné by the judge on certiorari (Ga. L. 1920, pp. 220-222; Park’s Code Supp., §§ 1770 (m), (p), (q)); but nothing in that act or in other legislation has apparently either expressly or by implication repealed the law of 1904 so far as it relates to a business of actual and bona fide buying of wages or salaries. That original act, to this extent, therefore, remains in full force; and it remains to consider its effect upon the transactions here in question, if taken in whole or in part as actual purchases or assignments.

The rule expressed in the first division of the syllabus, supported-by precedents of the Supreme Court and of this court, is substantially as recognized by other courts and text-writers, that such agreements without the required license are void and unenforceable, “where the license is required for public protection and to prevent improper persons from acting in a particular capacity, and not for revenue purposes only;” and such a general rule has been formerly applied to liquor dealers, and to stockbrokers, pawnbrokers, peddlers, innkeepers, plumbers, and other like professions and vocations. 13 Corpus Juris, 423 (§ 353 (3)); 37 Corpus Juris, 269 (§ 138); 6 R. C. L. 701 (§ 107), 692 (§ 98);. 25 Cye. 633; Clark on Contracts, 385; Gilley v. Harrell (Tenn.), 101 S. W. 424 (5); Barton v. Port Jackson etc., 17 Bard. (N. Y.) 397; Cook v. Pierce, 2 Houst. (Del.) 499; People v. Board, 122 Ill. App. 40; Buckley v. Humason, 16 L. R. A. 423 (2); Flora v. Hartman, 109 N. E. 846; Johnson v. Berry (S. Dak.), 1 L. R. A. (N. S.) 1159; Randall v. Tuell (89 Me. 443), 38 L. R. A. 143; Schnaier v. Navarre (182 N. Y. 83), 70 L. R. A. 722.

“Where a statute enacts, for the purpose of securing a more effectual compliance with its requirements in respect to the licensing of certain occupations, that no one shall engage in or carry on any such occupation until he shall have obtained a license as provided by law, it is an express prohibition without more particular words.” Paul v. Bishop, 3 Daly (N. Y.) 109. The statute here in question expressly prohibits the carrying on of the business without the prescribed bond and license. It is manifestly not designed, with a mere nominal license fee of $1.50, to collect or enforce revenue, but is primarily and almost solely intended to protect a great mass of the borrowing population from improper or irresponsible dealers, who might otherwise unduly profit from their distress and necessities. Similar legislation has been recognized by the Court of Appeals of Maryland in Wight v. B. & O. R. Co., 125 Atl. 881, 884, to be a proper and legitimate exercise of the police power of the State. 'As was there said, “In the very nature of the thing, money lenders or wage brokers carry on a business public in its nature, and in dealing with necessitous persons, often incapable through ignorance or the impelling force of their needs from protecting themselves, have opportunities for extortion and unfair dealing'which, unless restrained by proper and reasonable regulations, they may use to the detriment and injury of their patrons.”

Nor is it necessary that “a statute should impose a penalty for doing or omitting to do something, in order to make a contract void which is opposed to its operation.” Gunter v. Lecky, 30 Ala. 591; McGehee v. Lindsay, 6 Ala. 16; Black v. Manning, 1 Ala. 449; Walker v. Gregory, 36 Ala. 180. “The imposition of a penalty by statute is only material in that it shows an intention on the part of the legislature to prohibit the act penalized. It is the prohibition and not the penalty that renders illegal agreements in violation of the statute.” Clark on Contracts, 388; 13 Corpus Juris, 420 (§ 351), 424 (§ 356); 13 Corpus Juris, 356. The fact, therefore, that the act of 1904 contains no criminal penal provision will not, in the face of its express language and manifest purpose, defeat its inhibitions.

It is further argued on behalf of the alleged purchaser that, since the legislation and alleged business relate only to mala prohibita and not to mala in se, such contracts will not be avoided. This, however, is not the rule. “Formerly a distinction was made in determining the question whether contracts were illegal between acts mala prohibita and those mala in se, but the old rule no longer obtains. Either, under all modern authorities, nullifies the contract.” 6 B. C. L. 694 (§ 99), 701 (§ 106) ; 13 Corpus Juris, 420 (§ 351) ; Clark on Contracts, 386. The only limitation or exception to this general rule as recognized in this State is that the statute must not be designed primarily for the collection or enforcement of revenue. See, as to the broader rule even as to revenue statutes, in other jurisdictions, Benjamin on Sales (Cor-bin’s ed.), par. 825.

But it is insisted that, since sections 3462 and 3463, embodying the only civil penalties contained in the act of 1904, provide merely that, for failure to observe the requirements of the act, the transgressor “shall forfeit the license and all interest charged on the loan,” and “the license under which said business is conducted shall become ipso facto void,” such language must be held to comprehend within itself the entire purpose of the legislature, and to preclude entirely any implied forfeiture or avoidance of contracts made in the absence of the required bond and license. It was this question that caused the grant of the motion for rehearing, as we desired to consider anew this point, and wanted the assistance of the able counsel who appear of record in resolving the difficulty. This contention appears to be without merit. As was argued by counsel for the borrower, This section' relates to persons who have obtained a license, because it would be absurd to say that a person, firm, or corporation having no license at all should ‘forfeit the license ,and all interest charged on the loan.’ ” Likewise, the language in terms relates only to a “loan,” and does not cover actual sales of wages or salaries, which are also expressly included in the prohibitory provisions of the act in question. As counsel further urge, “If section 14 is construed to prescribe all the results that follow from a failure to obtain a license, then an unlicensed person, under the act, stands in a better position than a person having a license. The unlicensed person, therefore, would be subjected to less punishment than the licensed person. This would result in an absurdity. It would thus follow that there would be no reason for any person to comply with the act and to obtain a license, and there would be no means whatever provided in the act for its enforcement. It would render the act a nullity, and in effect nullify all its provisions. Every law is to be given a reasonable interpretation, and the policy of the law is to be gathered from the intention of the lawmaking power in the passage of the act. The act itself expressly and in terms prohibits the carrying on of this business by unlicensed persons. Under all the authorities, this prohibition clearly shows the legislative intent to make the business when carried on by an unlicensed person contrary- to law, and all contracts made in violation of the statute and of the policy declared therein void and unenforceable. To so hold renders the act reasonable and effective. The holding to the contrary would make the act unreasonable and ineffective, and would impute to the lawmaking power the doing of a vain and idle thing.” After full consideration of the additional contentions and arguments presented on rehearing, the original judgment and syllabus are adhered to.

Judgment adhered to.

Stephens and Bell, JJ., concur.


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    16136.
    Bank of Cumming v. Goolsby et al.

   Jenkins, P. J.

1. Generally, in the absence of a proper written request so to do, it is not cause for a new trial that the court, in charging the jury, failed to define or draw distinctions between technical terms, where the essential contentions and rules of law were given, and especially where the general meaning and effect of such terms are commonly understood. Forlaw v. Augusta Naval Stores Co., 124 Ga. 261 (2) (52 S. E. 898) ; Holmes v. Clisby, 121 Ga. 241 (7) 248 (48 S. E. 934, 104 Am. St. R. 103) ; Zachary v. Zachary, 141 Ga. 404 (81 S. E. 120); Bullard v. Metropolitan Life Ins. Co., 31 Ga. App. 641 (3) (122 S. E. 75). On the instant trial of'a money rule, involving the relative priorities of a mortgage on realty, recorded but having only one witness, and of a subsequent duly recorded mortgage, where both parties agreed in open court that the one issue in the case which should be submitted to the jury was whether or not the holder of the subsequent mortgage had “actual notice” of the earlier outstanding mortgage “at the time it took its mortgage,” and where such question was thus submitted, the court did not err, in the absence of a proper request, in failing to define the exact legal meaning of the term “actual notice” or knowledge, or to charge upon constructive notice by stating the legal effect of the imperfect record of a mortgage on realty having only one subscribing witness.

2. Where, on a money rule to distribute proceeds derived from a sheriff’s sale under the fi. fa. of a subsequent mortgage, such as described above, the holder of such mortgage and the holder of the described earlier mortgage agreed to submit to' the jury, as the only issue involved in the case, the question stated above, and the question was thus submitted, and the holder of the subsequent mortgage failed, by demurrer or otherwise, to question the legal right of the other holder to intervene in the proceeding without foreclosing her mortgage, and where the jury found against the holder of the subsequent mortgage, and judgment was entered in favor of the other holder, the holder of the subsequent mortgage will not be heard to insist for the first time, on exceptions pendente lite excepting only to such judgment, that it is illegal because the earlier mortgage had not been foreclosed and no equitable reason for claiming the fund derived from a sale under the subsequent mortgage was set out in the intervention; the sheriff’s return indicating that the entire estate, and not merely the equity of redemption, was sold by express or implied consent. Civil Code (1910), §§ 3292, 3274; Byars v. Bancroft, 22 Ga. 34; Baker v. Wimpee, 22 Ga. 69, 72. Moreover, it appears that the holder of the earlier mortgage offered in evidence, without objection, a mortgage execution dated the same day as the execution obtained by the holder of the subsequent mortgage, which execution, if at all relevant, indicates that it related to the mortgage in question, although the record fails to clearly identify the execution, and the principal sum therein is $540, while that of the mortgage is $500.

3. The verdict in favor of the earlier mortgage on the only issue, agreed and submitted as stated above, was authorized.

Decided July 20, 1925.

Money rule; from Gwinnett superior court—Judge Russell. December 10, 1924.

E. L. Patterson, for plaintiff.

0. A. Nix, for defendants.

•4. The judgment entered on the verdict of the jury was for $727.51, “being the amount of the principal and interest up to the 3d day of April, 1924, when the funds came into the hands of the sheriff, attorney’s fees, and costs,” and allowed additional costs for the money rule proceeding. Exceptions are taken to this judgment as excessive and unauthorized to the amount of $48.22, interest for one year, since under the evidence the funds did not come into the hands of the sheriff on April 3, 1924, but on that day in 1923. It appears from the record that the correct principal amount of the mortgage note was $500, and that interest thereon at 8 per cent, was due from its date, November 25, 1920, to April 3, 1923. The mortgage fi. fa., dated March 5, 1923, offered in evidence, was for $59.76 attorney’s fees, and $18.25 court costs in the previous foreclosure case. Deducting these from the amount of the judgment as rendered, it appears that the judgment allowed $649.51 principal and interest, while the correct amount on the $500 principal to April 3, 1923, instead of April 3, 1924, seems to be only $593.89, allowing an excess of interest to the extent of $55.62. This error being in the judgment, but not in the verdict, the judgment of the court below is affirmed with direction that the amount of the judgment be reduced in this sum, so as to make the total $671.90 in lieu of $727.52, and that the amount awarded the holder of the subsequent mortgage be increased by the amount stated to $191.10 instead of $135.48.

Judgment affirmed, with direction.

Stephens and Bell, JJ., concur.


author: Broyles, C. J.

text:
    16118. 16119.
    Heath v. The State. Washington v. The State.
    Decided July 29, 1925.
   Broyles, C. J.

1. “Where A, knowing that B is guilty of a murder, assists B in concealing the crime and the body of the murdered person, A is not thereby guilty of ‘receiving, harboring, or'concealing’ the murderer, within the meaning of section 326 of the Penal Code of Í910.”

2. Under the above-stated ruling of the Supreme Court in these eases (the question being certified by this court), and the facts of the eases, the conviction of the accused was contrary to law and the evidence, and the court erred in overruling the motions for a new trial. For the full opinion of the Supreme Court see Heath v. State, and Washington v. State, 160 Ga. 678 (128 S. E. 913), decided July 14, 1925.

Judgment reversed.

Lulce and Bloodworth, JJ., concur.

Indictment for harboring and concealing murderer; from Floyd superior court—Judge Wright. November 33, 1934.

Willingham, Wright & Covington, for plaintiffs in error.

E. 8. Taylor, solicitor-general, contra.


author: Bloodwortk, J.

text:
    16465.
    Farmers and Merchants Bank v. Ross.
    Decided July 29, 1925.
    Complaint; from Upson superior court—Judge Searcy. March 35, 1935.

      Clmde Worrill, for plaintiff in error.

      W. M. Dallas, M. D. Womble, contra.
   Bloodwortk, J.

Neither of the special grounds of the motion for a new trial shows any reason why a new trial should be granted; the evidence demanded the verdict and the court properly overruled the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.


text:
    16529.
    RICHARDS v. HARVEY.
    A petition for certiorari which contains no legal assignment of error is void, and should not be sanctioned; but, if sanctioned, should be dismissed on the hearing.
    Decided July 29, 1925.
    Certiorari; from Floyd superior court—Judge Wright. March 35, 1935.

      John Camp Davis, for plaintiff in error.

      Porter & Mebane, contra.
   Broyles, C. J.

It is well settled that a petition for certiorari which contains no adequate or legal assignment of error is absolutely void and should not be sanctioned; but, if such a petition be sanctioned, it should be dismissed upon the hearing. Partee v. Peters, 33 Ga. App. 694 (137 S. E. 660). The instant case was an action for purchase-money, instituted by attachment, and was tried before a jury. A verdict and judgment were rendered in favor of the plaintiff for $1,135. The defendant obtained the writ of certiorari. In the petition for certiorari the only allegations of error were as follows: “Petitioner avers that said court erred in charging the jury as follows: 1st. Because he failed to charge the law of express warranty, and such a charge was damaging under the evidence. 2d. Because he charged the law of implied warranty, which was not required and foreign to testimony. 3d. And because the said charge was not the. law of the case. And in entering up judgment as aforesaid, all of which rulings and findings of said court the petitioner assigns as error.”

It is obvious that the petition for certiorari contained no adequate or legal assignment of error, and the court did not err in dismissing the certiorari proceedings. See Partee v. Peters, supra.

This court not being satisfied, however, that the writ of error was prosecuted for the purpose of delay only, the request of the defendant in error that damages be assessed against the plaintiff in error is denied.

Judgment affirmed.

Luhe and Bloodworih, JJ., concur.


author: Luke, J.

text:
    16533.
    COFER v. THE STATE.
    A conviction of violation of the “labor contract law” (Penal Code of 1910, § 715) was not authorized by the evidence.
    Decided July 29, 1925.
    Accusation of cheating and swindling; from city court of Washington—Judge Sutton. April 13, 1925.
    The accusation was based on section 715 of the Penal Code (1910). W. T. Standard, the prosecutor, testified: “Some time during the spring of this year [1923] my son-in-law, Emmett Grenade, brought this boy, Harrison Cofer, to my house, and told me that he.had a hand for me. . . The boy went to work and
    worked as well as any hand I ever had until about the 22d day of April, 1923. I was paying him $16 a month for the rest of the year. It was on Sunday morning he came to, me and wantéd $10. I told him that I did not have the money, but let him have $5. . . The boy came and fed the stock that morning and was all dressed up. I never saw him again. Later I swore out a warrant for him. He kept up with his wages all the time. At the time he got the $5 I did not refer to my books to see how we stood, as I expected him to work on, and I did not owe him anything. I do not know whether or not he liad a good cause for not returning and carrying out his contract. He might have had and I not known it. But I did not give him any cause to leave, and I did not owe him the $5, and he has not paid it back. He never stated anything about being sick, and must have left as soon as he got the money.” The sheriff testified that ten days after the warrant for the arrest of the accused was obtained, he was arrested in Atlanta; that efforts to find him in the county were made as soon as the warrant was sworn out, but he could not be found there.
    The defendant, in his statement to the jury, said that when he got the $5 from Mr. Standard he thought that Mr. Standard owed him a good deal more than that, and he still thought so; that Mr. Standard did not tell him that he was ahead of his wages; that sometimes Mr. Standard was very cross and he was afraid of him; that when he got the $5 he meant to go back to Mr. Standard, but •he got sick and was sick for some time, and afterwards was afraid to go back; he did not go to Atlanta until some time later.

      William Wynne, Hugh E. Combs, for plaintiff in error.

      .Charles H. Calhoun, solicitor, contra.
   Luke, J.

The defendant was convicted of violating the labor-contract law. The evidence did not authorize his conviction, and for this reason the court erred in overruling the motion for a new trial.

Judgment reversed.

Broyles, C. J., and Bloodworth, J., concur.


author: Bloodworth, J.

text:
    16534.
    HOGAN v. THE STATE.
    The verdict finding the accused guilty of burglary was authorized by the evidence.
    Decided July 29, 1925.
    Indictment for burglary; from Eulton superior court—Judge Howard. May 9, 1925.

      J. W. LeCraw, for plaintiff in error.

      John A. Boylcin, solicitor-general, E. A. Stephens, Ralph H. Pharr, contra.
   Bloodworth, J.

The motion for a new trial contains the general grounds only. The indictment charged the accused with the offense of burglary, for that, with intent to steal, he did break and enter the storehouse of Bill Newman and did privately take, steal, and carry away therefrom “one Smith and Wesson 38-caliber revolver, four boxes of El Toro cigars, and one Norwood cord automobile tire and rim.” Every material allegation in the indictment is supported by evidence, and the judgment is

Affirmed.

Broyles, O. J., and Luke, J., concur.


text:
    16535.
    Jordan v. The State.
   Broyles, C. J.

1. “ ‘A prima facie case is all that is necessary to carry dying declarations to the jury. It is an issue of fact whether or not they were made in the immediate prospect of death.’ Varnedoe v. State, 75 Ga. 181. It is not necessary that the person whose statements are sought to be introduced should express himself as believing that he is in a dying condition. Consciousness of his condition may be inferred from the nature of his wound, or from other circumstances. Young v. State, 114 Ga. 849.” Anderson v. State, 122 Ga. 161; Jones v. State, 130 Ga. 274. Jones v. State, 150 Ga. 775 (1) (105 S. E. 495).

2. Those grounds of the .motion for a new trial which complain of the admission in evidence of certain portions of the dying declarations are without substantial merit.

3. The ground complaining of the refusal of the court to give a certain charge is too defective to be considered by this court, since it is not alleged in the ground that the requested charge was pertinent to the issues in the ease or that it was authorized by the evidence or the defendant’s statement.

4. The other grounds of the motion, as to alleged errors of omission and commission in the charge upon the law of dying declarations, are either without merit or show mere verbal inaccuracies or slips of the tongue, which will'be corrected upon another trial.

5. “On the trial of one for murder, where the evidence or the defendant’s statement at the trial would authorize the jury to find that the person killing acted in self-defense on account of a reasonable fear aroused in his mind by words, threats, or menaces, in connection with the other facts in the case, it is not erroneous for the court, in instructing the jury on the law of voluntary manslaughter, as contained in the Penal Code of 1910, § 65, to fail or refuse to charge in immediate' connection therewith the right of the jury to consider words, threats, or menaces in determining whether the circumstances attending the homicide were such as to justify the fears of a reasonable man that his life was in imminent danger or that a felony was about to be committed upon his person.” Deal v. State, 145 Ga. 333 (1) (88 S. E. 573). Under this ruling the 12th ground of the motion is without merit.

6. The excerpt from the charge upon the law of reasonable doubt, complained of in the motion for a new trial, when considered in connection with its context, was not error. Thomas v. State, 129 Ga. 419 (4 a) (59 S. E. 246).

7. “The credibility of a witness is to be determined by the jury; and it is error for the court to instruct the jury that if they believe a witness has made.previous statements contradictory to his testimony delivered on the trial, such testimony should be disregarded unless it is corroborated by other credible evidence, or is corroborated by the proven circumstances in the ease.” Wayc Under this ruling the charge of the court complained of in the 11th ground of the motion for a new trial was error and requires another hearing of the case.

Decided July 29, 1925.

Conviction of manslaughter; from Bibb superior court—Judge Mathews. April 25, 1925.

T. A. Wallace, Wallace & Wallace, for plaintiff in error.

Charles H. Garrett, solicitor-general, contra.

Judgment reversed.

Luke and Bloodworth, JJ., eoneur.


text:
    16542.
    GILREATH v. MURPHY.
    One of the defendants being a minor, without legal liability in the transaction's upon which the suit was based, a verdict against both defendants was unauthorized, and the court erred in not granting the motion for a new trial.
    Decided July 29, 1925.
    Attachment; from Walker superior court—Judge Wright. March 7, 1925.

      Henry & Jackson, for plaintiffs in error.
   Broyles, C. J.

The plaintiff filed his declaration in attachment against Nelson Gilreath and Joe Gilreath, joining them in the same suit. Upon the trial the jury returned the following verdict: “We, the jury, find for the plaintiff $166.99.” This meant a verdict against both defendants. However, the undisputed evidence upon the trial disclosed that Joe Gilreath, one of the defendants, during all the transactions involved in the suit, was a minor, living with and working for his father, the other defendant. Under these facts Joe Gilreath was without any legal liability in the transactions upon which the suit was based, and the verdict was contrary to law, and the refusal to grant a new trial was error.

Judgment reversed.

Luke and Bloodworth, JJ., concur


text:
    16545.
    McCrary Co. v. Selden-Breck Construction Co.
    Decided July 29, 1925.
    Complaint; from Fulton superior court—Judge E. D. Thomas. May 11, 1925.
    Application for certiorari was denied by the Supreme Court.

      Little, Powell, Smith & Goldstein, for plaintiff in error.

      Anderson, Rountree & Crenshaw, contra.
   Broyles, C. J.

Under the particular facts of the case as stated in the amended petition, the petition did not show that the plaintiff’s cause of action was barred by the statute of limitations. The court did not err in overruling the demurrers, general and special, to the petition.

Judgment affirmed.

Luhe and- Bloodworth, JJ., concur.


text:
    16547.
    Hartline v. The State.
    Decided July 29, 1925.
    Indictment for making liquor; from Dade superior court—Judge Tarver. April 28, 1925.
    According to the evidence, officers went to a still a short time before daybreak, found no one there, and, after waiting about three hours, saw the defendant and another man drive up in a wagon and begin unloading it a short distance from the still—about as far as across the court-room. They unloaded sugar, malt, and 'several cans and kegs, and were then arrested. It was testified that the still was complete and ready for operation, except that it needed filling up, and there was no fire in the furnace. “It looked like it had been running a month or so.” The officers found “about 7,000 gallons of beer about the place, part of it ready to run,” and in a shack they found some whisky in a can. The defendant, when arrested, began laughing, and he seemed to have been drinking. His statement at the trial was: “I went down and took a load of potatoes. A fellow up there wanted me to haul a load of sugar, told me he would give me one dollar a sack to haul it. I hauled it for him, took it to my house, and put it in the barn. He said he would come and tell me where to take it to. He went on down there, and then he told me to take this up there and unload it, and he would wait until I come back. When I got there these fellows were down there and they caught me, and that fellow, he run off. I never seen him any more, the one I was hauling sugar for."
   Bloodworth, J.

The indictment charged the defendant with manufacturing intoxicating liquor. The jury returned a verdict of attempting to manufacture such liquor. The evidence is not sufficient to support the verdict rendered, and the court erred in overruling the motion for a new trial.

Judgment reversed.

Broyles, G. J., and Luhe, J., concur.

Counsel for the plaintiff in error contended that if any crime was committed, it was complete, and no conviction of an attempt was authorized by the evidence; and cited Penal Code (1910), §§ 19, 1061. Section 1066 of the Penal Code, and Smith v. State, 28 Ga. App., 125 (2), were cited, contra.

B. T. Brock, J. M. Lang, for plaintiff in error.

O. 0. Pittman, solicitor-general, contra.


text:
    16548.
    Wells v. The State.
    Decided July 29, 1925.
    Indictment for possessing liquor; from Dade superior court— Judge Tarver. April 28, 1925.

      B. T. Brock, McClure & McClure, for plaintiff in error.

      C. C. Pittman, solicitor-general, contra.
   Broyles, C. J.

The verdict was authorized by the evidence, arid no ground of the motion for a new trial shows reversible error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    16551.
    Moore v. Georgia Railway & Power Company.
    Decided July 29, 1925.
    Action for damages; from city court of Atlanta—Judge Reid. May 4, 1925.
   Broyles, C. J.

The court did not err in awarding a nonsuit.

(a) The plaintiff failed to prove her case as laid.

(b) The undisputed evidence introduced by the plaintiff showed that her husband, at the time of his homicide, for which she was suing, was not exercising ordinary care for his own protection.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Thomas J. Lewis, for plaintiff.

Colquitt & Conyers, Sidney Smith, for defendant.


text:
    16553.
    BAILEY v. THE STATE.
    Where an indictment for larceny of an automobile alleged that it was the property of a named person, and the evidence showed that the title to the automobile was in his wife, and there was no evidence that it was in his possession at the time of the larceny, a verdict of guilty was unauthorized.
    Decided July 29, 1925.
    Indictment for larceny; from Eulton superior court—Judge E. D. Thomas. May 2, 1925.

      Scott, Hornbuclcle & Moore, for plaintiff in error,
    cited: 92 Ga. 47-8, 39 Ga. 41, 14 So. 280, 377, and distinguished 125 Ga. 286, 101 Ga. 528.

      John A. Boyhin, solicitor-general, E. A. Stephens, Ralph H. Pharr, contra,
    cited: 125 Ga. 286; 101 Ga. 528; 36 Corpus Juris, 838; 76 N. C. 38, 41.
   Luke, J.

Bailey was convicted of the offense of larceny. The indictment alleged that he “did wrongfully, fraudulently and privately take, steal, and carry away, with intent to steal the same, one Packard straight 8 automobile of the value of $4,000.00 and the property of Bobert F. Maddox Sr.” The undisputed evidence proved the title of the automobile to be in Mrs. Bobert F. Maddox Sr. The court charged the jury as follows: “The burden of proof is upon the State to prove every material allegation in the bill of indictment, and if you find, in considering the bill of indictment, that the property is alleged to be the property of B. F. Maddox Sr., and you find from the evidence that the property is the property of Mrs. B. F. Maddox Sr., wife of B. F. Maddox Sr., that, under the law, would be sufficient as to that part of the allegation.” This excerpt from the charge of the court is complained of upon the ground that it was prejudicial and not a correct statement of the law. The indictment having charged the larceny of the automobile and alleged the ownership to be in Bóbert F. Maddox Sr., and there being no evidence that Bobert F. Maddox Sr., at the time of the larceny, was in possession of the automobile, the proof did not meet the allegation, and the excerpt from the charge of the court complained of was erroneous. For the reason pointed ont the court erred in overruling the motion for a new trial.

Judgment reversed.

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


text:
    16554.
    DeLoach v. The State.
    Decided July 29, 1925.
    Accusation of drunkenness on highway; from city court of Keidsville—Judge Cowart. May 4, 1925.

      W. T. Burlchalter, for plaintiff in error.

      M. IF. Bason, solicitor, contra.
   Bloodworth, J.

1. The court did not err either in overruling the demurrer to the accusation or in "disallowing” the plea in abatement.

2. There is no merit in any of the special grounds of the motion for a new trial.

3. There was evidence to support the verdict.

Judgment affirmed.

Broyles, G. J., and Luke, J., concur.


text:
    16556.
    Wynn v. Maddok, sheriff, for use, etc.
    Decided July 29, 1925.
    Action on bond; from city court of Dublin—Judge Bidgood. April 20, 1925.

      W. A. Dampier, for plaintiff in error.

      S. W. Sturgis, contra.
   Broyles, C. J.

1. Under the facts of the case the court did not err: (a) in disallowing the proffered amendment to the defendant’s original plea in abatement; (6) in disallowing the defendant’s special plea in bar; (c) in dismissing the motion for a new trial.

2. This court not being satisfied that the writ of error was prosecuted for the purpose of delay only, the request of the defendant in error for the award.of damages is denied.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    16559.
    Hobgood v. The State.
    Decided July 29, 1925.
    Indictment for making whisky; from Gordon superior court-judge Tarver. May 2, 1925.

      Joseph M. Lang, for plaintiff in error.'

      Q. C. Pittman, solicitor-general, contra.
   Broyles, C. J.

Under all the facts of the case as disclosed by the record it is not made to appear that the trial judge abused his discretion in refusing to reinstate the motion for a new trial.

Judgment affirmed.

Luhe and Bloodworth, JJ., eoneur.


text:
    16560.
    Overstreet v. The State.
    Decided July 29, 1925.
    Conviction of manslaughter; from Berrien superior court—Judge Knight. May 2, 1925.

      W. B. Smith, for plaintiff in error.

      Henry G. Morgan, solicitor-general, contra.
   Luke, J.

The evidence fully authorized the verdict which has the approval of the trial judge; and it was not error to overrule the motion for a new trial, which was based on the general grounds only.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., eoneur.


text:
    16562.
    Perry v. The State.
    Decided July 29, 1925.
    Indictment for making liquor; from Appling superior court— Judge Highsmith. April 18, 1925.

      V. H. Padgett, for plaintiff in error.

      W. B. Gibbs, solicitor-general, contra.
   Bloodworth, J.

1. When read in connection with the other portions of the charge of the court, the excerpts complained of contain no error that requires the grant of a new trial. If additional instructions in reference to any of these propositions were desired, they should have been requested in the mode provided by the statute.

2. There was evidence to support the verdict.

Judgment affirmed.

Broyles, O. J., and Luhe, J., eoneur.


author: Bboyles, C. J.

text:
    16563.
    Bugg, receiver, v. Martin.
    Decided July 29, 1925.
    Damages; from Meriwether superior court—Judge Boop. April 25, 1925.

      Jones & Strother, Lovejoy & Mayer, Brandon & Hynds, for plaintiff in error.

      J. J. Bowden, J. B. Terrell, N. F. Culpepper, contra.
   Bboyles, C. J.

1. When the alleged errors of commission and of omission in the charge of the court and the refusal to give the requested instructions to the jury are considered in the light of the charge as a whole and the facts of the case, no reversible error appears.

2. The grounds of the motion for a new trial, complaining of rulings upon the admissibility of evidence, fail to show any reversible error. Moreover, these grounds are defective in two particulars: (1) They disclose that no objection was made to the admission of the evidence itself, the only objections being to the questions propounded. (2) The grounds are not complete and understandable within themselves. To determine whether the evidence admitted was material and was prejudicial to the plaintiff in error would require a reference to other portions of the record.

.3. This was an action by a mother for damages for the homicide of her son, Dan Martin. Upon the trial the evidence disclosed that Dan Martin, his wife, and his only child were all killed in the same collision between an automobile (in which they were riding) and a train of the defendant. However, the evidence adduced, together with the legal inferences and deductions arising therefrom, authorized a finding ■ that both the wife and child died before Dan Martin died. The verdict was authorized by the evidence, and the refusal to grant a new trial was not error for any reason assigned in the motion for a new trial.

Judgment affirmed.

Luke and Blood/worth, JJ., concu/r.


author: Bboyles, 0. J.

text:
    16566.
    Smith v. Meyer.
    Decided July 29, 1925.
    Complaint; from city court of Savannah—Judge Freeman. May 18, 1925.

      Frederick A. Tuten, for plaintiff in error.
   Bboyles, 0. J.

The court did not err in overruling the demurrer to the

petition.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Bloodwokth, J.

text:
    16577.
    CARTER v. THE STATE.
    “The rule that the existence of a fact testified to by one positive witness is to be believed rather than that such fact did not exist because many witnesses, who had the same opportunity of observation, swear that they did not see or know of its having transpired, does not apply when one of two persons having equal facilities for seeing or hearing a thing swears that it occurred, and the other that it did not.”
    “Where section 5751 of the Civil Code of 1910, as to the relative weight of positive and negative testimony, is applicable, it is error for the court to give that section in charge to the jury without further instructing them, in the same connection, that in weighing such testimony they should take into consideration the credibility of the witnesses.”
    Decided July 29, 1925.
    Accusation of using profane and vulgar language; from city court of Baxley—Judge Speer. April 29, 1925.

      V. E. Padgett, for plaintiff in error.

      Wade H. Watson, solicitor, contra.
   Bloodwokth, J.

The indictment charged that the accused, in the presence of a named female, used certain obscene, vulgar, and profane language. A witness for the State swore that he was sitting in an automobile with the’ lady named, that the curtains were up, that there were no lights in the car, that the accused was riding in a car with several other boys, that this car was stopped near the one in'which he and the young lady were sitting, that he recognized the voice of the accused, and that the accused used the language quoted in the indictment. Three witnesses swore in substance that they were in the car with the accused, near him, and would have heard the language attributed to him had he used it, and each swore positively that the accused did not use the language quoted or any similar language. These witnesses had a better opportunity than the witness for the State to hear and know what accused said, and their testimony is positive. Haywood v. State, 12 Ga. App. 643 (2) (77 S. E. 1130); Weeks v. State, 79 Ga. 36 (3) (3 S. E. 323). The judge charged the jury that “the existence of a fact testified to by one positive witness is rather to be believed than that such fact did not exist because many witnesses who had the same opportunity of observation swore that they did not see or know of its having transpired.” This was error. The rule relating to the distinction between positive and negative testimony should not be given in charge when the witnesses on each side have equal facilities for seeing or hearing the thing about which they testify and one testifies that it did occur and the other that it did not, for in such a case there is no negative testimony. Civil Code (1910), § 5751; Skinner v. State, 108 Ga. 747 (1); Wood v. State, 1 Ga. App. 684 (58 S. E. 271), and citations. Even “where section 5751 of the Civil Code of 1910, as to the relative weight of positive and negative testimony, is applicable, it is error for the court to give that section in charge to the jury without further instructing them, in the same connection, that in weighing such testimony they should take into consideration the credibility of the witnesses. See Georgia Ry. & Power Co. v. Pounds, 20 Ga. App. 201 (92 S. E. 1026), and eases cited.” McDuffie v. State, 24 Ga. App. 653 (101 S. E. 812). In Southern Railway Co. v. O’Bryan, 115 Ga. 660 (1) (42 S. E. 42), a charge in practically the same language as the one we are now considering was held to be clearly erroneous. This was put upon the ground that the charge with respect to the weight -of positive and negative testimony was open to criticism if it failed to instruct the jury that in passing upon such testimony they should consider the question-whether the witnesses were of equal credibility. S.o, no matter which horn of the dilemma we take, this excerpt from the charge was error and requires the grant of a new trial.

As a new trial follows the foregoing ruling, it is not necessary to consider the other assignments of error.

Judgment reversed.

Broyles, G. J., and Luke, J., concur.


author: Beoyles, O. J.

text:
    16578.
    Allred v. The State.
    Decided July 29, 1925.
    Conviction of making intoxicating liquor; from Polk superior court—Judge Irwin. May 19, 1925.

      E. S. Ault, for plaintiff in error.

      E. S. Griffith, solicitor-general, contra.
   Beoyles, O. J.

The evidence tending to connect the accused with the offense charged was wholly circumstantial, and was insufficient to exclude every reasonable hypothesis save that of his guilt. The court therefore erred in refusing to grant a new trial.

Judgment reversed.

Luke and Bloodworth, JJ.} concur.


text:
    16586.
    Parks v. The State.
    Decided July 29, 1925.
    Conviction of manslaughter; from Dawson superior court— Judge J. B. Jones. May 16, 1925.
    Application for certioari was denied by the Supreme Court.

      R. H. Baker, Charters & Wheeler, for plaintiff in error.

      Robert McMillan, solicitor-general, B. P. Caillard Jr., contra.
   Bloodworth, J.

1. The judge did not err in instructing the jury on the law of mutual combat, nor did he err in charging the law of voluntary manslaughter.

2. The alleged misstatement of the defendant’s contention, of which complaint is made in ground 7 of the motion for a new trial, is not so material as to require another trial of the case.

3. The excerpt from the charge, of which complaint is made in ground 8 of the motion for a new trial, is alleged to be error because “it mingled the law of defense of person or life with the law of voluntary manslaughter, and . . necessarily tended to a confusion of those two phases of homicide.” When this part of the charge is considered with the remainder of the charge, it is not subject to this criticism. The charge as given covered the material issues of the case; and if a fuller charge on any particular proposition was desired, it should have been requested in terms of the law. The eases cited and relied on by the plaintiff in error are easily differentiated from this case by their facts.

4. There is no merit in any of the other grounds of the motion for a new trial.

5. There was evidence to support the verdict.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.


author: Broyles, 0. J.

text:
    16592.
    Banks v. The State.
    Decided July 29, 1925.
    Rehearing denied September 23, 1925.
    Indictment for possession of liquor; from Fulton superior court —Judge E. D. Thomas. May 11, 1925.
    Application for certiorari was denied by the Supreme Court.

      Joseph D. Lewis, Swift Tyler, Threat Moore, for plaintiff in error.

      John A. Boykin, solicitor-general, E. A. Stephens, Ralph H. Pharr, contra.
   Broyles, 0. J.

The evidence, while wholly circumstantial, was sufficient to exclude every reasonable hypothesis save that of the defendant’s guilt. The overruling of the motion for a new trial was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    16594.
    Thomas, alias Rome, etc., v. The State.
    The statute under which it is error for a judge, in his charge to the jury, “to express or intimate an opinion as to what has or has not been proved,” was violated by the instruction that “if the poison, in the manner in which it was used, . . or . . was administered, was a poison likely to produce death, then the law, from the use of such poison, would imply malice.”
    An erroneous instruction in one part of a charge is not cured by correct instructions in another part in reference to the same subject-matter, unless the court expressly withdraws the erroneous charge and instructs the jury that they are not to consider it.
    Decided July 29, 1925.
    Conviction of assault with intent to murder; from Wilkes superior court—Judge Perryman. May 8, 1925.

      Hugh F. Combs, for plaintiff in error.

      M. L. Felts, solicitor-general, contra.
   Bloodworth, J.

The indictment charged that the accused was guilty of murder, in that he, with intent to kill, administered to a named person a deadly poison. A ground of the motion for a new trial alleges that an opinion as to what had been proved was expressed by the judge in the following instructions to the jury: “If the poison, in the manner in which it was used, was a poison likely to produce death, or in the manner it was administered was a poison likely to produce death, then the law, from the use of such poison, would imply malice.” We agree with counsel for the plaintiff in error. To so charge the jury was to express an opinion that the poison “was used” and “was administered,” and such a charge was a violation of section 4863 of the Civil Code of 1910, which provides that it is error for any judge in his charge to the jury “to express or intimate his opinion,as to what'has or has not been proved.” As the trial judge did not expressly withdraw these erroneous instructions from the jury and instruct the jury not to consider them, the error therein was not cured by any other part of the charge. This error in the charge requires the grant of a new trial. Atkinson v. Atkinson, 159 Ga. 882 (3) (127 S. E. 149).

As the ease is to be tried again it is unnecessary to pass upon the other assignments of error.

Judgment reversed.

Broyles, C. J., and Bake, J., concur.


author: Broxx.es, C. J.

text:
    16595.
    Hammond v. The State.
    Decided July 29, 1925.
    Indictment for embezzlement; from Heard superior court— Judge Roop. April 28, 1925.

      Smith & Millican, D. B. Whitaker, Terrell & Terrell, for plaintiff in error.

      W. 7. Atkinson, solicitor-general, L. B. Wyatt, contra.
   Broxx.es, C. J.

1. It appearing from a note by the trial judge that he approved certain portions only of the first ground of the amendment to the motion for a new trial, that ground can not be considered by this court. Burdette v. Crawford, 125 Ga. 577 (3) (54 S. E. 677); Franklin County v. Gillespie, 137 Ga. 567 (1) (73 S. E. 833).

2. Grounds 2 to 12 (inclusive) of the amendment to the motion for a new trial (complaining of rulings upon the admissibility of evidence) fail to show any reversible error.

{a) Several of these grounds contain exceptions to the admission of documentary evidence, but these exceptions can not be considered, as the evidence is not incorporated in the grounds nor attached thereto as exhibits. Moreover, most of these grounds are not complete and understandable within themselves. To ascertain the alleged errors, the exceptions insisted' upon, and Iheir materiality, would require a reference to other portions of the record.

3. Ground 13 is expressly disapproved by the judge.

4. Under the facts of the ease no harmful error is shown by the remaining two special grounds of the motion (both numbered 14), complaining of instructions given in recharging the jury.

5. The verdict was authorized by the evidence and the refusal to grant a new trial was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    16596.
    Smith v. The State.
    Decided July 29, 1925.
    Accusation of possessing distilling apparatus; from city court of Lexington—Judge Cloud. May 2, 1925.

      T. W. Rucker, Hamilton McWhorter Jr., for plaintiff in error.

      W. W. Armistead, solicitor, contra.
   Luke, J.

Smith was charged with and convicted of possessing distilling apparatus. The sole assignment of error is that the conviction was unauthorized by the evidence. The testimony authorized a finding that the accused was in possession of the premises whereon the apparatus was situated, and further authorized his conviction. The court properly overruled the motion for a new trial.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    16598.
    Crosby v. The State.
    Decided July 29, 1925.
    Accusation of giving worthless check; from city court of Baxley —Judge Speer. April 29, 1925.

      V. E. Padgett, for plaintiff in error.

      Wade H. Watson, solicitor, contra.
   Bloodworth, J.

1. “An affidavit in support of the witness upon whose newly discovered evidence a new trial is sought must give the. names of his associates, a statement that he keeps good company not being sufficient to meet this requirement, which is necessary to enable the prosecution to make a counter showing; and where such affidavit does not comply with this requirement, the trial judge does not abuse his discretion by refusing to grant a new trial on this ground.” Ivey v. State, 154 Ga. 63 (6) (113 S. E. 175). As the record in the present case does not contain an affidavit giving the names of the associates of the witness upon whose alleged newly discovered evidence a new trial is sought, under the ruling just quoted, we can not say that the trial judge abused his discretion in overruling the motion for a new trial.

2. There is ample evidence to support the verdict; and, as it is approved by the trial judge and no error of law was committed during the trial, this court will not disturb the verdict.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.


text:
    16599.
    Norton v. The State.
    Decided July 29, 1925.
    Accusation of possessing liquor; from city court of Thomasville —Judge MacIntyre. April-11, 1925.

      James B. Burch, for plaintiff in error.

      J. B. Edwards, solicitor, contra.
   Broyles, C. J.

The motion for a new trial contained the usual general grounds only; the verdict was amply authorized by the evidence, and the refusal to grant a hew trial was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    16601.
    Ray v. The State.
   Bloodworth, J.

1. There is nothing in any of the special grounds of the motion for a new trial that requires a rehearing of this ease.

Decided July 29, 1925.

Indictment for possessing liquor apparatus; from Haralson superior court—Judge Irwin. April 28, 1925.

Smith & Watson, for plaintiff in error.

E. S. Griffith, solicitor-general, contra.

2. There is some evidence to support the verdict.

Judgment affirmed.

Broyles, O. J., and Lulce, J., concur.


text:
    16611.
    Griffin v. The State.
    Decided July 29, 1925.
    Accusation of selling liquor; from city court of Oglethorpe— Judge Greer. April 29, 1925.

      Jere M. Moore, for plaintiff in error.

      John B. Guerry, solicitor, contra.
   Bboyles, C. J.

1. Upon the hearing of a motion to arrest the judgment in a criminal case the court looks only at the indictment and the verdict, the presumption being that the evidence authorized the verdict. Watson v. State, 116 Ga. 607 (6) (43 S. E. 32).

2. Under the above-stated ruling and the facts of the instant case, the court properly struck from the motion in arrest of judgment matter that was extrinsic to the face of the record, and properly repelled evidence which showed facts not appearing on the face of the record, and properly overruled the motion to arrest the judgment.

Judgment affirmed.

Lulce and Blood/wortli, JJ., concur.


text:
    16616.
    Hewitt v. The State.
    Decided July 29, 1925.
    Accusation of larceny after trust; from city court of Wrightsville —Judge Blount. June 6, 1925.
    The accusation charged that Bay Hewitt “was intrusted with one ten dollar bill . . by G. H. Prescott, for the use and benefit of the latter, and did . . fraudulently convert the said ten dollars to his own use, to the injury and without the consent of G.' H. Prescott and without paying G. H. Prescott the price thereof." On the trial Prescott testified that he traded with Ray Hewitt in January to work his (Prescott’s) farm for him this year; Hewitt was then living with E. J. Sumner, and told Prescott that he owed Sumner an account, and Prescott would have to advance him $10 to pay it, before h'e could move; and Prescott advanced that amount of money to him, to'pay Sumner before moving to Prescott’s farm. After moving there he stayed about three weeks and left. Sumner testified that Hewitt owed him about $7 at the time Hewitt moved, and it was not paid.
   Luke, J.

Hewitt was accused and convicted of the offense of larceny after trust. The evidence did not authorize his conviction, and for this reason the court erred in overruling his motion for a new trial.

Judgment reversed.

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

Cited for plaintiff in error: 19 Ga. App. 230 (3); 9 Ga. App. 853-5; 97 Ga. 207.

G. 8. Glaxton, for plaintiff in error.

J. Roy Rowland, solicitor, contra.


author: Blood worth:, J.

text:
    16617.
    Lawrence v. The State.
    Decided July 29, 1925.
    Accusation of violating motor-vehicle law; from city court of Wrightsville—Judge Blount. May 30, 1925.

      G. 8. Glaxton, for plaintiff in error.

      J. Roy Rowland, solicitor, contra.
   Blood worth:, J.

1. The court did not err in overruling the demurrer on the ground that no offense against the laws of Georgia was set out in the accusation.

2. The question of whether a certain section of an act of the legislature is unconstitutional is not properly raised by a general allegation that the section is “unconstitutional, null, and void.” Newkirk v. Southern Ry. Co., 120 Ga. 1048 (1) (48 S. E. 426), and cases cited on page 1049. Sayer v. Douglas County, 119 Ga. 550, 551 (46 S. E. 654); Savannah Railway Co. v. Gill, 118 Ga. 738 (5) (45 S. E. 623) ; Miller v. State, 26 Ga. App. 642 (1) (107 S. E. 64).

3. There is abundant evidence to support the verdict, which has the approval of the judge who tried the case; and, as no error of law was committed on the trial, this court is without authority to interfere with the verdict.

Judgment' affirmed.

Broyles, C. J., and Luke, J., concur.


text:
    16625.
    Buckner v. The State.
    Decided July 29, 1925.
    Conviction of ear-breaking; from Whitfield superior court-judge Tarver. June 1, 1925.

      William E. & W. Gordon Mann, for plaintiff in error.

      G. G. Pittman, solicitor-general, contra.
   Bboyles, C. J.

The defendant was convicted of the offense of car-breaking. The evidence tending to connect him with the crime was wholly circumstantial and was insufficient to exclude every reasonable hypothesis save that of his guilt. The court, therefore, erred in overruling the motion for a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


author: Bloodwoktii, J.

text:
    16631.
    Overstreet v. The State.
    Decided July 29, 1925.
    Accusation of disturbing worship; from city court of Baxley— Judge Speer. April 29, 1925.

      V. E. Padgett, for plaintiff in error.

      Wade H. Watson, solicitor, contra.
   Bloodwoktii, J.

“Where section 5751 of the Civil Code of 1910, as to the relative weight of positive and negative testimony, is applicable, it is error for the court to give that section in charge to the jury without further instructing them, in the same connection, that in weighing-such testimony they should take into consideration the credibility of the witnesses. See Georgia Ry. & Power Co. v. Pounds, 20 Ga. App. 201 (92 S. E. 1026), and eases cited.” McDuffie v. State, 24 Ga. App. 653 (101 S. E. 812). See also Sou. Ry. Co. v. O’Bryan, 115 Ga. 660 (1) (42 S. E. 42), and Carter v. State, ante, 230.

Under the rulings in the foregoing eases the court erred in overruling the motion for a new trial.

Judgment reversed.

Broyles, C. J., and Luke, J., concur.


author: Bboyles, 'C. J.

text:
    16632.
    Williams v. The State.
    Decided July 28, 1925.
    Accusation of possessing intoxicating liquor; from city court of Wrightsville—Judge Blount. June 18, 1925.
   Bboyles, 'C. J.

The evidence was insufficient to support the verdict, and the court erred in overruling the motion for a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

Williams was convicted on an accusation which charged him with having in his possession, custody, and control intoxicating liquor. From the evidence it appeared that he and another man were sitting on a log or stump about twenty yards from a still, when they were discovered by officers, one of whom carried a shotgun, and it was testified that when the defendant saw the officer with the shotgun he ran. They had just been sawing wood. Wood of the same kind, freshly cut and about three feet in length, was found at the still, with a fruit jar of liquor and about 3000 gallons of fermenting mobby, apparently ready to run. There was no sign of wood having been cut anywhere else about the still. The defendant, in his statement at the trial, said he lived about twenty-five miles away, in Jefferson county, and, having lost his job at a sawmill, he was going to Wrightsville, to get work, when he saw a man sitting on a log, waiting for another man. “I helped him saw one block. I saw the officers. I didn’t even know the still was there, had never seen it, had no interest in it. I didn’t know there was any liquor there, had only been there just a few minutes. I was in a strange community, and when I saw these men coming with their guns, it frightened me, and I ran.”

C. S. Claxton, for plaintiff in error,

cited: 25 Ga. App. 558; 31 Ga. App. 784; 27 Ga. App. 581, 583; 2 Ga. App. 554; 25 Ga. App. 558 (3).

J. Boy Bowland, solicitor, contra,

cited: 32 Ga. App. 25, 74; 29 Ga. App. 24.


text:
    16633.
    Williams v. The State.
    Decided July 29, 1925.
    Accusation of possessing distilling apparatus; from city court of Wrightsville—Judge Blount. June 18, 1935.
    The evidence in this ease is the same as that in Williams v. State, ante, 338.

      G. S. Glaxton, for plaintiff in error.

      J. Boy Bowland, solicitor, contra.
   Luke, J.

The conviction being dependent wholly upon circumstantial evidence, and the evidence not being sufficient to exclude every reasonable hypothesis save that of the guilt of the accused, the court erred in overruling the motion for a new trial.

Judgment reversed.

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


text:
    16438.
    Brice v. The State.
    Decided July 29, 1925.
    Rehearino denied September 23, 1925.
    Motion for new trial; from Fulton superior court—Judge Howard. December 6, 1924.
    Application for certiorari was denied by the Supreme Court.

      W. II. Terrell, for plaintiff in error.

      John A. Boykin, solicitor-general, E. A. Stephens, Ralph H. Pharr, contra.
   Bloodworth, J.

1. This extraordinary motion for a new trial was based solely upon alleged newly discovered evidence, but did not comply with the requirements on that subject as fixed by the law.

(a) “If the newly discovered evidence is that of witnesses, affidavits as to their residence, associates, means of knowledge, character, and credibility must be adduced.” Civil Code (1910), § 6086.

(5) “An affidavit in support of the witness upon whose newly discovered evidence a new trial is sought must give the names of his associates, a statement that he keeps good company not being sufficient to meet this requirement, which is necessary to enable the prosecution to make a counter-showing; and where- such affidavit does not comply with this requirement, the trial judge does not abuse his discretion by refusing to grant a new trial on this ground.” Ivey v. State, 154 Ga. 63 (6) (113 S. E. 175).

(c) Under the law as announced above, the affidavits in support of the witnesses upon whose alleged newly discovered evidence a new trial is sought do not fill the requirements of the statute and are fatally defective.

2. Under the facts of the case this court can not say that the trial judge abused his discretion in refusing to grant a postponement of the hearing.

3. The court did not err in dismissing the extraordinary motion for a new trial.

Judgment effirmed.

Broyles, G. J., and Lulce, J., concur.


author: Stephens, J.

text:
    15838.
    Bruce v. Brown.
   Stephens, J.

1. One who represents his mother-in-law, an old lady eighty years old, with whom he lives, in “looking after matters for her,” and who accompanies her on various occasions to a bank with which she transacts business, and-who, as agent for her, and not in her presence, signs her name to a check drawn upon this bank, it not appearing that she authorized or ever acquired any knowledge of such transaction, is not, by such facts, shown to be her agent to draw on her account in the bank, or to apply the proceeds to his own credit. The testimony of the mother-in-law, that she at one time gave to the son-in-law a check, which it appears was in the same amount as the check alleged to have been signed by the son-in-law as her agent, is insufficient to authorize an inference that she had reference to the check which he signed as agent not in her presence, and is insufficient to authorize the inference that she either authorized or had any knowledge of the execution in her behalf of the check signed by him as her agent.

Decided August 20, 1925.

Complaint; from 'Wilcox superior court—Judge Crum. June 38, 1934.

J. H. Dorsey, for plaintiff.

Hal Lawson, for defendants.

2. In a suit by the mother-in-law against the bank to recover the amount of certain payments which had been made to the bank by the maker of a note, which was in the bank’s possession and to which the plaintiff claimed title, and which funds the bank had placed to the credit of the plaintiff’s son-in-law, where one of the defenses relied upon by the defendant bank was that the son-in-law was the agent of the plaintiff, and, as such agent, had authority to draw upon the plaintiff’s account, and where the only evidence as to such agency was such as - is indicated in paragraph 1 above, together with certain extrajudicial declarations tending to prove agency, made by the alleged agent, the evidence was insufficient to establish the agency of the son-in-law to withdraw from the bank any of the funds of the plaintiff. It was, therefore, error harmful to the plaintiff for the judge, in his charge, to submit such defense to the jury.

3. Where a further defense interposed was that the note, which was payable to the plaintiff’s daughter, who was the wife of the son-in-law, and indorsed in blank by both the payee and the son-in-law, was not the property of the plaintiff, and had not been left by the plaintiff with the defendant for collection for the plaintiff’s benefit, as the plaintiff claimed, but was the property of the son-in-law, it was error harmful to the plaintiff to admit in evidence any acts or declarations of the payee of the note, who was not a party to the suit, such as the filing of a suit upon the note by the payee, or demands made by the payee upon the makers for payment of the note, all of which tended to establish title to the note in the payee and not in the plaintiff. Such evidence was hearsay and immaterial.

4. A verdict having been found for the defendant, it was error to overrule the plaintiff’s motion for a new trial.

Judgment reversed.

Jenkins, P. J., and Bell, J., concur.


text:
    15886.
    Johnson v. Planters Bank.
   Stephens, J.

1. A claim filed by a third person to funds impounded by process of garnishment is invalid in the absence either of an affidavit in forma pauperis filed by him or a bond indemnifying the plaintiff, whether such bond is one given upon a dissolution of the garnishment, as provided in section 5282 of the Civil Code (1910), or is the ordinary bond required, in claim cases, as provided in section 5158. Hand v. Hall Merchandise Co., 91 Ga. 130 (16 S. E. 644) ; Bullock v. Butts, 33 Ga. App. 7 (124 S. E. 905).

Decided August 20, 1925.

Levy and claim; from city court of Swainsboro—Judge Kirkland. August 28, 1924.

T. N. Brown, F. II. Saffold, Kirlcland & Kirkland, for plaintiff in error.

L. P. Strickland, A. S. Bradley, contra.

2. The giving of the required bond or, in lieu thereof, the affidavit in forma pauperis is a condition precedent to the validity of the claim and the jurisdiction of the court to entertain it. Where a claim without the required bond or the affidavit in forma pauperis has been re- ' turned into court, there is nothing to amend by, and it is not error to reject a proffered amendment to give the required bond, and to dismiss the claim. Hand v. Hall Merchandise Co., supra.

3. The court did not err in dismissing the claim.

Judgment affirmed.

Jenhins, P. J., and Bell, J., concur.


text:
    15891.
    National Life & Accident Insurance Co. v. Smith.
   Stephens, J.

1. The term “sound health,” as used in a life insurance policy which provides that there shall be no liability under the policy if the insured is not in sound health at the date of the issuance of the policy, is properly defined in the charge of the court as follows: “If the insured enjoyed such health and strength as to justify the reasonable belief that she is free from derangement of organic functions, or free from symptoms calculated to cause reasonable apprehension of such derangement, and to ordinary observation and to outward appearance her health is reasonably such that she may with ordinary safety be insured and upon ordinary terms, the requirement of good health is satisfied. . . The terms ‘sound health’ or ‘good health,’ used in a policy, mean that the applicant has no grave impairment or serious disease, and is free from any ailment that seriously affects the general soundness and healthfulness of the system.” Under this definition “sound health” consists not alone in the outward appearance of sound health, but also in a reasonable freedom from physical derangement and impairment as above defined.' " See, in this connection, Joyce on Insurance (2d ed.), § 2004, Atlantic & Birmingham R. Co. v. Douglas, 119 Ga. 658 (46 S. E. 867).

2. This being a suit to recover by the beneficiary under a life insurance policy, which was defended upon the ground that the insured at the time of the issuance of the policy was not in sound health, and that she, in her application for insurance, made false and fraudulent representations as to her physical condition, thereby fraudulently induc- '' ing the insurer to issue the policy, and it appearing from the evidence that the jury was authorized to find that the insured was in sound health at the time of the issuance of the policy and did not make the false and fraudulent statements as alleged, the verdict for the plaintiff was authorized.

Decided August 20, 1925.

Complaint; from city court of Savannah—Judge Freeman. August 22, 1924.

N. J. Norman, I. G. Farthing, for plaintiff in error.

George G. Heyward Jr., contra.

Judgment affirmed.

Jenkins, P. J., and Bell, J., concur.


text:
    15897.
    Cutts v. Leonard Brothers Motor Company.
   Stephens, J.

1. This being a suit upon a purchase-money note given by the defendant to the plaintiff, for the balance due upon an automobile warranted by the plaintiff to be a 1920 model Buick roadster in first-class condition, to which the defendant filed a plea setting up a breach of warranties, and also a plea of rescission upon the ground of an alleged fraud upon the part of the plaintiff as respects the character and condition of the automobile, and there being evidence from which the jury could infer that the defendant had not offered to rescind the contract and to return the property promptly upon a discovery by him of the alleged fraud, and there being evidence authorizing the inference that the plaintiff did not perpetrate the fraud alleged, and there being evidence from which the jury could infer that the plaintiff had breached the warranties, to the damage of the defendant in an amount representing the difference between the true value of the automobile and the contract price, a verdict against the defendant’s plea of rescission and in favor of the plaintiff in an amount representing the actual value of -the automobile was authorized.

2. The court having clearly instructed the jury that the defendant’s contention was that the automobile was in fact a 1919 model Buick roadster, the charge is not subject to the exception that the court limited the defendant to the contention that certain parts of the automobile remaining after it had been repaired and rebuilt were parts belonging to a 1919 model Buick roadster.

3. The defendant having pleaded a rescission of the contract and an offer to return the automobile to the plaintiff upon the discovery of the plaintiff’s fraud, and, in his plea and evidence, making a continuing offer to return the automobile to the plaintiff, and the defendant having testified that the automobile had been stored for the plaintiff’s benefit, and the court having instructed the jury to find a verdict for the defendant if they believed the evidence sustained the plea of fraud and rescission, and the court having also instructed the jury that upon the plaintiff’s refusal to accept the automobile when tendered by the defendant, the defendant might store the automobile and hold it as the plaintiff’s agent, the charge is not subject to the exception that the jury was left under the impression that the defendant could he relieved of paying for the automobile and at the same time retain it, or that the court failed to instruct the jury that should the defendant’s plea of rescission be sustained, the automobile would then become the 'property of the plaintiff.

Decided August 20, 1925.

Complaint; from Ben Hill superior court—Judge Crum. August 16, 1934.

Hal Lawson, Wall & Granlham, for plaintiff in error.

A. J. & J. C. McDonald, contra.

4. Where the evidence relied upon by the defendant in support of the plea of fraud and rescission was that a salesman of the plaintiff, at the time the contract of sale was entered into, knew that the automobile had been operated by a former owner for a considerable time, and had been made over and reconstructed from new parts, after having been considerably damaged in a wreck, which the plaintiff denied, newly discovered evidence of a former employee of the plaintiff, to the effect that the salesman had such knowledge prior to the execution of the contract of sale, is merely cumulative and impeaching; and in view of there being an issue both as to alleged fraud and as to the defendant having offered to rescind upon the discovery of fraud, and there being introduced upon the hearing of the motion for a new trial the evidence of the salesman in contradiction to the newly discovered evidence, and also evidence tending to impeach the person offering the newly discovered evidence, it does not appear that such evidence would, upon another trial, likely produce a different result. Besides, it does not appear that such evidence could not have been discovered by ordinary diligence upon the part of the defendant or his counsel.

5. Certain other alleged newly discovered evidence as to the nonexistence of a certain correspondence which it is alleged the agent of the plaintiff had at one time, in conversation with the defendant, after the contract of sale had been entered into, claimed to have been in existence between him and the Buick agency in another city, was not, even assuming that it had any probative value for any purpose, of such character that it would be likely to produce a different result.

0. The evidence authorized the verdict found for the plaintiff, and no error of law appears. The court did not err in overruling the defendant’s motion for a new trial.

Judgment affirmed.

Jenlovns, P. J., and Bell, J., concur.


text:
    15910.
    Padgett et al. v. Jones.
   Stephens, J.

1. As provided in the act approved August 18, 1916 (Ga. L. 1916, p. 48), no penalty or forfeiture attaches to a lender because of an usurious contract, other than the forfeiture of the entire interest charged or taken.

Decided August 20, 1925.

Complaint; from Tattnall superior court—Judge Sheppard. August 33, 1934.

C. L. Cowart, for plaintiffs in error.

P. M. Anderson, H. B. Kimbrough, contra.

2. It follows that the transferee of a promissory note, who has taken it as collateral security for an usurious loan made by him to the transferor since the above-cited act of 1916, will not, by reason of the usurious contract, be deprived of his status as a bona fide holder.

3. - Treating the sureties on the collateral note as sureties upon the usurious contract evidenced by another note executed by the transferor to the transferee, which contained a waiver of homestead, such waiver, of homestead, since the passage of the act of 1916, is not void, and the risk of such sureties is therefore not increased. Laing v. Hinesville Bank, 31 Ga. App. 416 (2) (120 S. E. 799).

4. In a suit by the transferee of the collateral note against the maker and the sureties thereon, a verdict for the defendants was not, under the above rulings, as a matter of law demanded. The first grant of a new trial to the plaintiff is therefore affirmed.

Judgment affirmed.

Jenjoins, P. J., and Bell, J., concur.


text:
    15929.
    Fuller v. Doyal.
    Decided August 20, 1925.
    Certiorari; from Paulding superior court—Judge Irwin. August 9, 1934.

      S. W. Ragsdale, for plaintiff in error.

      C. I). McGregor, contra.
   Stephens, J.

1. Property not owned by a debtor, when filing his schedule of property exempted under section 3416 of the Civil Code (1910) providing for the short or “pony” homestead, but which is afterwards acquired by him, is not subject to exemption under the schedule, although described therein. Smith v. Eckles & Abercrombie, 65 Ga. 326.

2. Fifty bushels of corn raised and produced by a debtor in the year 1922 are not exempt from levy and sale by virtue of a schedule which was made out on the 11th day of November, 1921, exempting fifty bushels of corn, as provided in the above-cited code section.

3. The judge of the superior court properly overruled a certiorari brought by the defendant, excepting to á verdict and judgment in the justice’s court, finding the property levied on subject to the levy and not exempt under the schedule.

Judgment affirmed.

Jenleins, P. J., and Bell, J., concur.


text:
    15935.
    National Fire Insurance Co. v. Lam.
    Decided August 20, 1925.
    Complaint; from Floyd, superior court—Judge Wright. July 28, 1924.

      Spalding, MacDougald & Sibley, Maddox, Matthews & Owens, for plaintiff in error.

      Denny & Wright, contra.
   Stephens, J.

1. Where a policy of fire insurance, which insures against the loss of an automobile by fire, provides that “in case the insured and this company shall fail to agree as to the amount of loss or damage, each shall, on the written demand of either, select a competent and disinterested appraiser. . . And the loss shall in no event become payable until sixty days after the notice, ascertainment, estimate, and verified proof of loss herein required have been received by this company, and if appraisal is demanded, then not until sixty days after an award has been made by the appraisers,” and which further provides that “no suit or action on this policy for -the recovery of any claim hereunder shall be sustainable in any court of law or equity unless the insured shall have fully complied with all the foregoing requirements,” and where, after loss or damage by fire to the automobile insured, the insurer and the insured fail to agree upon the amount of loss or damage, and the insurer, in compliance with the provisions of the policy, names and selects an appraiser and in writing communicates the selection to the insured, at the same time demands in writing that the insured name an appraiser, and the insured fails to comply with such demand, and refuses and fails to name an appraiser as provided in the policy, the designation of an appraiser by the insured is a condition precedent to the right of the insured to maintain a suit on the policy.

2. In a suit by the insured against the insurer to recover a loss under a policy, the defendant’s plea in abatement, under the above ruling, was good as against demurrer, and was improperly stricken.

3. This case is distinguishable from Atlas Assurance Co. v. Williams, 158 Ga. 421 (123 S. E. 697), and Goldberg v. Provident Washington Insurance Co., 144 Ga. 783 (87 S. E. 1077), in which it was held that such a provision is not a condition precedent where no demand to designate an appraiser has been made upon the insured. This ease is also distinguishable from Liverpool &c. Insurance Co. v. Creighton, 51 Ga. 95, where it was held that, under a fire-insurance policy’providing only that in case the contracting parties failed to agree upon the amount of loss sustained, the matter should be submitted to arbitration, the submission of the matter to arbitration was not a condition precedent to the right of the insured to maintain a suit upon the policy. •

Judgment reversed.

Jenkins, P. J., and Bell, J., concur.


text:
    15974.
    McAfee & Company v. Martin.
    Decided August 20, 1925.
    Action for damages; from Cherokee superior court—Judge Blair. September 27, 1924.

      P. P. DuPre, E. W. Coleman, for plaintiffs in error.

      Broolce & Henderson, contra.
   Stephens, J.

1. A person operating an automobile along a highway may be guilty of negligence as respects an approaching team, if, after observing that the team is approaching along a narrow strip of the highway where it would be difficult or impossible for both to pass in safety on account of a bank being upon one side and a declivity upon the other side of the highway, he has an opportunity to stop at a wide and safe meeting place in the highway and await the approaching team, and he fails to do so.

2. Where, as a consequence of such negligent operation of the automobile, the driver of the approaching team is placed in an emergency and must act quickly and without deliberation for his own safety, and, when attempting to avoid injury to himself as a consequence of the negligence of the person operating the automobile, drives his team over the declivity and is thereby injured, the negligence of the person operating the automobile may be regarded as the proximate cause of the injury.

3. In a suit by the driver of the team against the owner of the auto mobile, to recover for the injuries thus sustained, the jury was authorized to find that the negligence of the defendant was the proximate cause of the injury.

4. There being evidence to the effect that the plaintiff was fifty-five years of age, that his leg was broken as a consequence of the defendant’s negligence, that the injury was permanent, and that he suffered loss in earnings, a verdict found for him in the sum of four hundred and fifty dollars was authorized by the evidence.

Judgment affirmed.

Jenkins, P. J., and Bell, J., concur.


text:
    16036.
    Nunnally v. Colt Company.
   Stephens, J.

1. Where a written contract for the sale of personalty is executed by two persons ostensibly as purchasers, it may be siiown by parol that one of them executed the contract not as a principal obligor, but as a surety only. Civil Code (1910), § 3556.

2. Where the terms of such a contract provide that, at the option of the seller, the purchaser may be required to evidence the obligation by a purchase-money note payable twelve months from the date of shipment of the property purchased, and where the seller has taken such a note from the purchaser, one who was a surety upon the original con-, tract of sale, irrespective of whether he in fact became a surety upon the note, will, where the note is, without his consent, renewed and the time of payment extended, thus constituting a new contract for a new consideration, be discharged. •

Decided August 20, 1925.

Complaint; from city court of Madison—Judge Lambert. October 20, 1924.

E. K. George, for plaintiff in error.

M. G. Few, contra.

3. In a suit by the seller against one of the obligors upon the original contract of sale, that part of the defendant’s plea as amended which set up suretyship and a discharge by a new contract alleged to have been entered into by the seller and the coobligor was improperly stricken on demurrer.

4. The remainder of the defendant’s plea as amended, which alleged parol agreements and understandings between the plaintiff and the defendant at variance with the contract sued on, the execution of which the defendant admitted, was properly stricken on demurrer.

Judgment reversed.

Jenldns, P. J., and Bell, J., concur.


text:
    16045.
    SAMPLES v. MILTON COUNTY BANK.
    1. The expression “forged cheek,” as used in section 44 of article 19 of the banking act, approved August 16, 1919 (Ga. L. 1919, p.. 135, 209), applies only to a check created as a result of a criminal act of forgery, and does not apply to a check to which one’s name as maker or drawer is signed by another, who purports to act as the agent for the maker or drawer, although no such authority exists.
    2. Under the undisputed facts the plaintiff is not, as a matter of law, estopped, irrespective of the provisions of the above-cited act, from repudiating the act of the alleged agent in signing the plaintiff’s name to the checks without authority.
    Decided August 20, 1925.
    Appeal; from Milton superior court—Judge Blair. October 18, 1924.
    Mrs. N. B. Samples brought suit against the Milton County Bank for a certain sum of money which she had deposited in the bank. The defendant denied liability and specifically pleaded that the money sued for had been withdrawn by checks bearing the plaintiffs signature as drawer, which checks, marked cancelled and paid, had been returned to her by mail, and that, there being no protest or complaint by her within more than sixty days after •the return of the checks, she was estopped from asserting any claim against the bank. The defendant alleged that it believed that the name of the plaintiff was signed to the checks by her authority, and that the checks were thus cashed in good faith.
    It -appears, from the evidence, that the plaintiff’s name was signed to certain of the checks by her husband, and that the bank cashed the checks for him, knowing that the signature was not the genuine signature of the plaintiff, but that the husband, purporting to act for the plaintiff, had signed her name thereto. They were signed “Mrs. N. B. Samples, by N. B. Samples.” The plaintiff denied that her husband had authority to sign her name to the checks. It further appears from the evidence that the checks cashed by the husband were marked paid, and were returned to the plaintiff by mail, with a statement of her account, and that she did not notify the bank of any lack of authority in her husband to sign her name to the checks until nine months after the cancelled vouchers had been mailed to her, and after her husband had died.
    A verdict was found for the defendant.

      J. P. Brooke, for plaintiff.

      George F. Gober, G. B. Walker, for defendant.
   Stephens, J.

(After stating the foregoing facts.) The judge, in his charge, instructed the jury that “No bank that in good faith has paid, and charged to the account of a depositor, any money on any forged or raised check issued in the name of the depositor shall be liable to such depositor "for the amount paid thereon, unless, within sixty days after the return to the depositor of the voucher representing such payment (a voucher would be a check), the depositor shall notify the bank that the check so paid was forged or raised.” This language is taken from section 44 of article 19 of the banking act, approved August 16, 1919 (Ga. L. 1919, pp. 135, 209). Continuing, the court instructed the jury that “A forged check, within the meaning of this particular statute, is a check drawn in the name of any person without the authority of such person. To illustrate, as applied to the plaintiff here, if some one signed her name to a cheek, and it was done without authority from her, then, within the meaning of this particular statute, that would be a forged check, and it would be incumbent upon the plaintiff, within sixty days after receipt of the notice of the payment of this check from the bank to the plaintiff, to make complaint to the bank; and failure to do so would be a bar thereafter from asserting any claim against the bank on account of such payment.” The plaintiff excepts to the charge, upon the ground that the checks in question were not forged checks, and that, therefore, this provision of the banking act is not applicable.

This provision of the banking act is, in a sense, punitive. It penalizes the depositor and deprives him of a right, which he would otherwise have against the bank, to repudiate a forged or raised check. This penalty, under the terms of this section, may be enforced against the depositor without actual notice to him of the fact that the bank had cashed and charged against his account .such a check. Since a sufficient notice under the act may be given to the depositor “by mailing to such depositor at his last known address,” it is possible that the depositor may not receive actual notice, and, without actual notice, may be deprived of his right to hold the bank liable for cashing and charging against his account a forged or raised check.

Since statutes which are penal in their nature, and which abridge and curtail private rights and remedies, must be strictly construed, and since legal terms must, when used in a legislative act, unless the context demands otherwise, be construed in their legal sense, a “forged” check, as this term is used in the act, will be construed as referring to a check which is the result of an act of forgery, as defined in the criminal statutes.' Johnson v. Bradstreet Co., 87 Ga. 79, 82 (13 S. E. 250); Black on Interpretation of Laws, p. 130; Lewis’ Sutherland on Statutory Construction, Yol. II (25 ed.), § 398. “To constitute forgery, the writing must purport to be the writing of another than the person making it. . . Where one executes an instrument purporting on its face to be executed by him as the agent of the principal, he is not guilty of forgery, although he has in fact no authority from such principal to execute the same. This is not the false making of the instrument, but merely a false and fraudulent assumption of authority. The essence of forgery is the making of a false writing, with the intent that it shall be received as the act of another than the party signing it; and where it appears that it could not have been intended that the false writing should be received as other than what it purports to be, the maker may be guilty of cheating and swindling, but can not be guilty of forgery.” Barron v. State, 12 Ga. App. 342 (7) (77 S. E. 214).

It appearing, from the ..evidence, that the checks drawn by the plaintiff’s husband in her name were not forged cheeks, the above-quoted excerpts from the charge of the court were error.

Under the undisputed facts, the plaintiff was not, irrespective of the above provision of the banking act, as a matter of law estopped from repudiating her husband’s act in signing her name to the checks. The verdict found for the defendant, therefore, was not demanded. .

The court erred in overruling the plaintiff’s motion for a new trial.

Judgment reversed.

Jenlcins, P. J., and Bell, J., concur.


text:
    16048.
    Woodruff Machinery Manufacturing Co. v. Seymour.
    Decided August 20, 1925.
    Complaint in trover; from Wilkes superior court—Judge Shurley. November 5, 1984.

      Norman & Norman, for plaintiff.

      C. B. Sutton, for defendant.
   Stephens, J.

1. In a suit in trover, where the defendant disputes the plaintiff’s title only in so far as it may have been divested by an alleged sale by the plaintiff, through an agent, to the defendant, and where, by the terms of the alleged contract of sale, title to the property sold is retained in the plaintiff, whether or not the alleged contract is binding upon the plaintiff, the plaintiff’s title is not thereby divested.

2. Where in such a suit it is undisputed that as a part of the alleged contract of sale, under which the defendant claims to have acquired title to the property sued for, the defendant executed a promissory note payable to the plaintiff for the purchase-money, which contained a provision therein that “it is understood and agreed that the title t\* this property is to remain in [the plaintiff] until the full amount of purchase money is paid,” ■ the plaintiff’s title to the property is not divested. Irrespective of 'any issue as to whether the plaintiff became a party to such contract, either by agreement directly or through its agent or by ratification of the acts of its agent, and irrespective of any parol agreements or understandings between such agent and the defendant tending to establish a contract of sale divesting the plaintiff’s title, the plaintiff’s title is not divested, and the verdict found for the defendant is unauthorized and contrary to law.

3. Since the only defense interposed by the defendant is as indicated above, the court erred in overruling the plaintiff’s motion for a new trial.

Judgment reversed.

Jenkins, P. J., and Bell, J., eoneur.