POWELL, J. Reversed. COTTLE v. STATE. (No. 2,342.) (Court of Appeals of Georgia. Jan. 20, 1910.) CRIMINAL LAW (§§ 1158, 1159*)—APPEAL-RE VIEW-SUFFICIENCY OF EVIDENCE. If any question can be stare decisis in this court by repeated rulings, it is that in the absence of legal error this court is without constitutional power to set aside a verdict supported by any evidence. Therefore, although only one witness may prove the criminal act, and many witnesses, with the same opportunity to the solution of the issue is still within the exknow the fact, may disprove the criminal act, clusive province of the jury. An appeal to this court for the purpose of reviewing only the weight of the evidence, or the credibility of the witnesses, is a useless consumption of valuable time. in a misdemeanor is to be judged like the Doyle Campbell, for plaintiff in error. A. testimony of a witness unstained by com-Y. Clement, for defendant in error. plicity in the crime, but means that it should be judged and weighed as the testimony of an accomplice, which legally may be sufficient to convict if fully believed. Whether the distinction made by the law as to the character and effect of the testimony of an accomplice in cases of felony and misdemeanors is based upon a logical foundation or not, the law makes the difference, and in misdemeanors the credibility of the accomplice as a witness is left entirely to the jury, in the light of experience, common sense, and the circumstances of the particular case, without any legal handicap. We therefore cannot hold as a matter of law that the verdict was not authorized by the testimony of the accomplice, even if without any corroboration. But in this case did not the circumstance of finding the intoxicating liquors in the house where the defendant lived with his father furnish some corroboration? It is true the legitimate inference, if there was nothing else, would be that the father was the owner and possessor of the liquors, and not the son. But the something else which might fairly be considered as raising an inference of the son's guilt is that the son, and not the father, was selling whisky some months prior to its being found in the father's house, where the son was also living. The court charged: "That one accused of unlawfully selling intoxicating liquors is in possession of quantities of liquor, beers, bottles, jugs, and measures is a circumstance which, in connection with other circumstances, will authorize the inference that the owner is engaged in the unlawful sale of intoxicants." The charge is excepted to on the ground that it was inapplicable to the facts. While juries might be wisely left to draw inferences from proven facts, without any assistance from the court, the instruction was not erroneous for the reason assigned. Judgment affirmed. BROUGHTON v. AIKEN. (No. 2,086.) (Court of Appeals of Georgia. Jan. 20, 1910.) TRIAL (8 168*)-DIRECTING VERDICT. The testimony in this case is such that the verdict rendered was almost legally demanded, but not quite so. The judge cannot direct a verdict, unless the evidence absolutely demands the verdict. His action in the present case must therefore be reversed. [Ed. Note. For other cases, see Trial, Cent. Dig. 88 376-380; Dec. Dig. § 168.*] (Syllabus by the Court.) [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3061-3066, 3070, 3071, 3074–3083; Dec. Dig. §§ 1158, 1159.*] (Syllabus by the Court.) Error from City Court of Tifton; R. Eve, Judge. Dyke Cottle was convicted of crime, and Affirmed. brings error. J. B. Murrow, J. J. Murray, and R. E. Dinsmore, for plaintiff in error. W. J. Wallace, Sol., for the State. HILL, C. J. Judgment affirmed. WILLIAMS v. STATE. (No. 2,340.) (Court of Appeals of Georgia. Jan. 20, 1910.) CRIMINAL LAW (§ 1182*)-APPEAL-REVIEW. The testimony makes it very clear that there was a burglary, and that the defendant was the burglar. The requests to charge, so far as they were legal and pertinent, were fairly covered by the general charge. No sufficient reason appears for reversing the judgment. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 3205; Dec. Dig. § 1182.*] (Syllabus by the Court.) Error from Superior Court, Bibb County; W. H. Felton, Judge. Logie Williams was convicted of burglary, and brings error. Affirmed. Feagin & Urquhart, for plaintiff in error. Walter J. Grace, Sol. Gen., for the State. POWELL, J. Judgment affirmed. DAVIS et al. v. SAWTELL. (No. 2,046.) Error from City Court of Monticello; A. (Court of Appeals of Georgia. Jan. 20, 1910.) S. Thurman, Judge. 1. JUSTICES OF THE PEACE (§ 117*)—JUDGMENT FOR DEFENDANT FOR COSTS-RIGHT OF APPEAL TO JURY. Where suit is brought in a justice's court on an unverified open account, and the plaintiffs introduce testimony, but failed to prove the | las, Augusta & Gulf Railway Company. From justness and correctness of the account, and the a judgment granting inadequate relief, plainjustice renders judgment in favor of the defendant for costs of suit, this does not operate tiff brings error. Affirmed. as a dismissal of the suit, but is a judgment of the justice from which plaintiffs may, as matter of right, enter an appeal to a jury in that court. Civ. Code 1895, § 4140. [Ed. Note. For other cases, see Justices of the Peace, Cent. Dig. § 372; Dec. Dig. § 117.*] 2. JUSTICES OF THE PEACE (§ 205*)-CERTIORARI-RETURN-CONCLUSIVENESS. The untraversed answer of the magistrate whose judgment is sought to be reviewed on certiorari is conclusive as to the facts. Carter v. State, 3 Ga. App. 476, 60 S. E. 123; Evans v. Forsyth, 126 Ga. 589, 55 S. E. 490. [Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. § 798; Dec. Dig. § 205.*] 3. NO QUESTION OF FACT INVOLVED. The certiorari in this case involved no ques tion of fact, and the final judgment as rendered by the judge of the superior court was the only judgment that could have been legally rendered. (Syllabus by the Court.) Error from Superior Court, Fulton County; W. D. Ellis, Judge. Action by J. S. Davis and others against T. R. Sawtell. Judgment for defendant before a justice. From a judgment of the superior court dismissing a certiorari, plaintiffs bring error. Affirmed. Frank L. Haralson, for plaintiffs in error. S. D. Johnson, for defendant in error. HILL, C. J. Judgment affirmed. J. R. Walker and Hendricks & Christian, for plaintiff in error. Wm. H. Barrett, J. W. Quincey, and W. D. Brice, for defendant in error. HILL, C. J. Judgment affirmed. DENTON v. BUTLER. (No. 1,802.) of the superior court, on certiorari from the [Ed. Note. For other cases, see Justices of the Peace, Cent. Dig. § 826; Dec. Dig. § 209.*] (Syllabus by the Court.) Error from Superior Court, Chatham County; W. G. Charlton, Judge. Action between F. B. Denton and Leander Butler. From a judgment before a justice, Butler brings certiorari. From an order granting a new trial, Denton brings error. Affirmed. U. H. McLaws and Jacob Gazan, for plaintiff in error. Edward S. Elliott, for defendant in error. POWELL, J. The proposition stated in the foregoing headnote is too well settled to need O'QUINN v. DOUGLAS, A. & G. RY. CO. discussion. Since the case is to be tried (No. 2,005.) (Court of Appeals of Georgia. Jan. 20, 1910.) 1. NEW TRIAL (§ 27*)-ERRORS OF LAW-CURE BY VERDICT. In a suit brought by a passenger against a railroad company to recover damages for personal injuries, a verdict was rendered for the plaintiff in the sum of $4,300. There was conflict in the evidence as to the plaintiff's contributory negligence. On his motion for a new trial, held, that any error of law relating to the defendant's liability was rendered harmless by the verdict, unless it was such as might have influenced the jury to reduce the amount that the plaintiff was entitled to recover. [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 40, 41; Dec. Dig. § 27.*] 2. ADMISSION OF EVIDENCE-INSTRUCTIONS. There was no error of law in the admission of evidence, or in the charge of the court, which could have affected injuriously or materially the amount of the damages that the plaintiff was entitled to recover. again, it may be proper and important to lay down a further proposition concerning it. The contract sued on did not appear to be unilateral, especially so far as involved in the present case; but it did not purport to contain all the terms of the contract, so as to preclude resort to parol testimony to explain it. The agreement to pay "$45 commission on said purchase" may be explained by showing what service in connection with the purchase was to have been compensated under the head of "commission." If the agreement arranging for the carrying of a mortgage on set up by the defendant as to the plaintiff's the property was made contemporaneously with the execution of the written contract. and was by the negotiations of the parties a part of the trade, it would be binding on the plaintiff. However, if it was a voluntary undertaking on the plaintiff's part after the contract had become complete, it would not be based on consideration, and therefore would not be enforceable. The written contract would not necessarily be complete with the physical signing of the paper, nor until it was delivered to or left with the plaintiff Error from City Court of Nashville; H. B. as the consummation of the agreement be Peeples, Judge. 3. DAMAGES (§ 208*)-QUESTION FOR JURY. The amount of the verdict was exclusively a question for the determination of the jury under all the evidence. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 533, 534; Dec. Dig. § 208.*] (Syllabus by the Court.) Action by J. H. O'Quinn against the Doug tween the parties. (No. 1,960.) (Court of Appeals of Georgia. Jan. 15, 1910.) 1. APPEAL AND ERROR (§ 544*) REVIEW RULINGS NOT COVERED BY BILL OF EXCEP TIONS. The rulings on the demurrer cannot be reviewed, since no exceptions pendente lite were filed, and the rulings complained of were made more than 30 days before the suing out of the main bill of exceptions. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 2412; Dec. Dig. § 544.*] 2. PLEADING (§ 36*)-ADMISSIONS. er, after Dukes had died, Horkan amended WHITE SEWING MACH. CO. v. HORKAN. his plea by setting up that he did not do business under the name of Horkan Trading Company, that he was not a member of any such partnership, that he was not concerned in the contract sued on, and that he had never at any time authorized or ratified the giving of the note. The evidence of the plaintiff tended to show that the note was given for certain sewing machines, but that it was to be discharged by the defendant's subsequently ordering a certain number of machines additional. A great deal of correspondence between the Horkan Trading Company and the White Sewing Machine Company was introduced, all in the handwriting of Dukes and signed by him, and showing among other things, that the condition had not been performed. There was an attempt to show by statements of Dukes that Horkan owned the business was the proprietor of the Horkan Trading Company. The trial resulted in a nonsuit, and the plaintiff excepts. Even if the objections to the defendant's filing the amendments to his plea were well taken— and we think they were not-the exceptions thereto are presented here too late, as the exceptions were not preserved pendente lite, and the main bill of exceptions was not certified within 30 days after the rulings. A defendant may file inconsistent and con- 3. PRINCIPAL AND AGENT (§ 22*)—EVIDENCE [Ed. Note. For other cases, see Principal and The court erred in granting a nonsuit. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. §§ 722, 723; Dec. Dig. § 24.*] (Syllabus by the Court.) 2. We think that the plaintiff made a prima facie case and should have had it submitted to the jury. The defendant may file contradictory pleas, but he does so under peril of having them made the basis of an inference against the good faith of the defense, when the case goes to the jury. One Error from City Court of Moultrie; J. D. party may take the benefit of all admissions McKenzie, Judge. in the pleadings of the other. The stateAction by the White Sewing Machine Comments contained in the original plea, and the pany against G. A. Horkan. Judgment of nonsuit, and plaintiff brings error. Reversed. Hendricks & Christian, for plaintiff in error. Shipp & Kline, for defendant in error. POWELL, J. 1. The White Sewing Machine Company brought suit against G. A. Horkan, alleging that he did business under the name of Horkan Trading Company, and that he was indebted to the plaintiff on an obligation attached to the petition, signed "Horkan Trading Company, per W. B. Dukes." There was a condition attached to this obligation that, through the doing of a subsequent act on the part of the Horkan Trading Company, the promise to pay might be discharged. At the first term of the court, Horkan came in and on oath answered, setting up that he was not liable on the obligation, because "said note was subject to a condition set forth in said note, the terms of which this defendant has fully complied with, and by reason of which said note has been fully satisfied and discharged by the terms of said conditions." Subsequently, several years lat natural implications to be drawn therefrom, were such as to carry strong weight toward the establishment of the proposition that Horkan was the proprietor of the Horkan Trading Company; and that he filed no plea denying this fact for a long number of years, and not until the death of Dukes, is a circumstance pregnant with refutation of the good faith of the defense set up in the amended plea. It is to be noticed that the original contract is signed, "Horkan Trading Company, per W. B. Dukes." The contract was subject to be discharged by compliance with certain conditions. Horkan comes in and pleads at the first term, not that the note was not his obligation, but that he him. self had discharged the condition in it. If it was not Horkan's obligation, if Dukes was not authorized to act for him, if Dukes was not authorized to bind him by signing the name of Horkan Trading Company, through what means and by what right did he (Horkan) undertake to claim the benefit of the contract and discharge it by complying with the condition? From the very nature of this plea, and of the matter set up in it, the jury | a judgment for plaintiffs, and a new trial was would have had the right to draw either of | denied, and defendant brings error. Reversed, two inferences-that Dukes was originally H. A. Mathews, for plaintiff in error. Hixauthorized to contract for Horkan in the on & Greer and Jule Felton, for defendants name of the Horkan Trading Company, or in error. that Horkan had ratified his assumed agency, in either of which events Horkan would be liable upon the contract. HILL, C. J. Plaintiffs instituted proceed Code of 1895 to eject the defendant as an intruder from their "lands and tenements.” When the sheriff served the warrant of eviction, he either notified the defendant that he would execute the warrant and eject him unless a counter affidavit was tendered to him within three days as required by Civ. Code 1895, § 4821, or then told him to appear and make his defense at the next term of the city court, which convened on the following 3. To recover in this case, it was neces-ings under section 4808 et seq. of the Civil sary, of course, for the plaintiff to show that Dukes was the authorized agent of Horkan, authorized originally or by ratification. This agency could not be shown in the first instance by the declarations of the agent. The rule is, however, that when the agency is prima facie shown, declarations of the agent are admissible in corroboration. As we have strongly intimated above, we think that the admission contained in the plea, and, indeed, the very ratification of the agency that came about by Horkan pleading as a defense the performance of a condition in the contract which Dukes had made, would establish such a prima facie case of agency as to comply with the rule. 4. The case ought to have gone to the jury. The court erred in rejecting the declarations of Dukes, tending to corroborate the fact of his agency, and in awarding a nonsuit. Judgment reversed. SHEATS v. BLAIR et al. (No. 1,884.) (Court of Appeals of Georgia. Jan. 15, 1910.) EVICTION OF INTRUDER-TIME FOR FILING In proceedings to eject intruders from the possession of lands and tenements under section 4808 et seq. of the Civil Code of 1895, where the officer exhibiting the warrant of eviction to the defendant does not execute the warrant after the expiration of three days, and no counter affidavit is filed by the defendant within that time, and the officer leaves him in possession of the property, he can subsequently make and file the counter affidavit with the officer at any time prior to actual eviction. [Ed. Note. For other cases, see Forcible Entry and Detainer, Cent. Dig. 8 104; Dec. Dig. § 20.*] 2. FORCIBLE ENTRY AND DETAINER (§§ 6, 29*) -EVICTION OF INTRUDERS ON LAND-GOOD FAITH. "The remedy prescribed in section 4808 et seq. of the Civil Code of 1895, was intended to apply only to intruders, squatters, or disseisors, who enter in bad faith and without any claim or shadow of right." The evidence in this case clearly shows that the defendant in good faith claimed the right to the possession of the land. [Ed. Note. For other cases, see Forcible Entry and Detainer, Cent. Dig. § 31; Dec. Dig. $$ 6, 29.*] (Syllabus by the Court.) week. The evidence is doubtful as to what The from the charge: "If it should appear from the evidence that the sheriff exhibited the plaintiffs' affidavit to the defendant, and at the same time then and there gave him notice, either verbal or written, that after the expiration of three days' time he would, in the absence of a counter affidavit as prescribed by law, proceed to evict him from the premises, and if you further find that the defendant did not file such counter affidavit within three days as required by law, then the defendant would not now have the right to file said affidavit, or would not have the right to file such affidavit subsequently to the expiration of the three days, and if you find this to be the fact you need not inquire further into the case, but should render a verdict in favor of the plaintiffs." The portion of this charge excepted to is where the court instructs the jury that the defendant could not file the counter affidavit after the expiration of three days from the date of the notice to eject. This amounted to a direction of a verdict for the plaintiffs, if under the evidence the jury decided that, when the sheriff exhibited the warrant of eviction to the defendant, he notified him that he would evict Exception is made to the following excerpt Error from City Court of Oglethorpe; R. L. him unless the counter affidavit was tendered Greer, Judge. Action by W. A. Blair, by his next friend, and others, against Floyd Sheats. There was within three days. We think this instruction was error. Under the statute of 1854 (Acts 1853-4, p. 52), as codified in section 4808 of the Civil Code of 1895, the sheriff was required to dispossess the intruder at once, unless counter affidavit was made. The act of 1878 (Civ. Code 1895, § 4821) gives the intruder three days within which to make the counter affidavit and thus prevent summary ejection. If, however, the sheriff does not eject after the three days' notice, but leaves the defendant in possession, and subsequently accepts a counter affidavit, the issue thus made by the affidavit to eject and the counter affidavit must be tried by a jury. Lanier v. Kelly, 6 Ga. App. 738, 65 S. E. 692. It would be a harsh construction of the statute to hold that a defendant would be deprived of making a meritorious defense, although still in possession of the premises, simply because of a delay in making the counter affidavit. If the defendant has in fact been evicted, it would be too late for him to tender the counter affidavit, but any time previous to actual eviction he can make the issue of the legality of his possession by filing the counter affidavit. The cases relied upon by the learned counsel for the defendant in error do not go to the extent of holding that when a counter affidavit setting up a meritorious defense has been tendered by the alleged intruder and accepted by the sheriff, and when there has been no actual eviction, the issue made by the counter affidavit with the affidavit to dispossess will not be considered because the former was not tendered and accepted within three days of the service of the warrant of eviction and notice by the sheriff of his intention to evict. These cases simply hold that after the three days have expired and there has been a proper eviction it will be too late to file the counter affidavit unless the delay has been caused by some misconduct of the sheriff. Simpson v. Wall, 41 Ga. 106; Montgomery v. Walker, 41 Ga. 681. In Collins v. Rutherford, 38 Ga. 30, it is held that, when the counter affidavit has been dismissed as not being in compliance with the statute, a second counter affidavit will not be allowed, because the statute requires that a proper counter affidavit shall be at once (under the act of 1878, within three days) tendered to the sheriff. "If the intruder can be allowed to make a defective affidavit and thereby retain possession of the land, and when it is objected to make another and still retain possession, the very object and intent of the act would be defeated, which is to provide a summary process for the ejection of intruders who squat on other people's land." But if the sheriff permits the alleged intruder to retain possession, and after the three days accepts from him a first affidavit which sets out a good defense in strict compliance with the statute, the defense thus made should be passed upon by the jury, and the defendant should not be cut off from such meritorious defense because the counter affidavit was tendered and accepted too late. We think this would be true, regardless of anything said or done by the sheriff to mislead the defendant as to the time allowed for making the counter affidavit. It would be all the more true if the delay in filing the counter affidavit was due to the conduct of the sheriff at the time of serving the warrant of eviction which misled the defendant. On the merits of the case the plaintiffs were not entitled to a verdict. The undisputed evidence shows that the defendant was put into possession of the property in November, 1908, by his brother, who had rented it to him for the year 1909. The plaintiffs were adults and minors, and in July, 1908, the former had sold their interest in the property to this brother, and the minors, by their guardian, had leased the property to this brother for the year 1909. There is some conflict in the evidence as to when the purchaser and lessee was to take possession of the property, whether at the close of the year 1908, or in January, 1909. When the defendant was put into possession of the property by his brother in November, 1908, the plaintiffs had vacated the premises, and the possession of no one was interfered with. There is nothing to indicate that the defendant did not take possession in absolute good faith, in the belief that his brother had the right to rent the property to him and to put him in possession. In other words, the evidence clearly shows that the defendant was not an intruder, but in good faith claimed the right to be upon the land. "The remedy prescribed in section 4808 et seq. of the Civil Code [of 1895] was intended to apply only to intruders, squatters, or disseisors who enter in bad faith and without any claim or shadow of right." Lane v. Williams, 114 Ga. 124, 39 S. E. 919. The sole point to be decided is the bona fides of the defendant. "The question is not, does he have a right? but does he in good faith claim it?" McHan v. Stansell, 39 Ga. 199; Lane v. Williams, supra, and cases cited. The question as to the defendant's right to possession of the premises is in some slight doubt under the evidence. His good faith in claiming the right is in no doubt. Judgment reversed. FITZGERALD v. REID. (No. 2,196.) (Court of Appeals of Georgia. Jan. 20, 1910.) TRIAL (8 170*)-DIRECTING VERDICT. The defendant having admitted a prima facie case in favor of the plaintiff, and having failed to sustain his plea by proof, the court did not err in directing the verdict against him. See Krauss v. Flournoy (this day decided) 66 S. E. 805. [Ed. Note.-For other cases, see Trial, Dec. Dig. § 170.*] (Syllabus by the Court.) |