HALE v. HAMMOND.

Supreme Court of Georgia. May 6, 1897.)

APPEAL-REVIEW.

This case involves no new legal question. charges complained of were correct presentas of the law applicable to the issues involved. re was no error at the trial. The evidence, igh in many respects conflicting, fully warted the verdict rendered, and there was no se of discretion in denying a new trial.

Syllabus by the Court.)

rror from superior court, Walker county; M. Henry, Judge.

ction between H. E. Hale and A. N. Hamnd. From the judgment, Hale brings erAffirmed.

opeland & Jackson and R. M. W. Glenn, plaintiff in error. Lumpkin & Shattuck, defendant in error.

ER CURIAM. Judgment affirmed.

BLACK v. HOLLAND et al. Supreme Court of Georgia. May 6, 1897.)

LIMITATIONS-CREDITS ON NOTE.

A credit on a promissory note, in order to stitute a new point from which the statute imitations will commence to run, must be in ting, and signed by the maker, or by some by him authorized; or, if unsigned, such Hit must be in the handwriting of the maker self. An unsigned credit, written by an nt of the maker, will not suffice to renew the mise, or to constitute a new point from which statute will run. Watkins v. Harris, 10 S. 447, 83 Ga. 680. Syllabus by the Court.)

rror from superior court, Hart county; S. ese, Judge.

ction by J. Z. A. Black against J. T. Hold and others. Judgment for defendants. intiff brings error. Affirmed.

. C. Brown, J. N. Worley, and J. P. Rob, for plaintiff in error. W. L. Hodges and G. McCurry, for defendants in error.

ER CURIAM. Judgment affirmed.

APPEAL-REVIEW-NEW TRIAL.

No error of law is complained of. This case falls within the well-settled rule that the discretion of the trial judge in refusing to grant a second new trial, where there is some evidence to support the finding of the jury, will not be disturbed.

(Syllabus by the Court.)

Error from superior court, Madison county; S. Reese, Judge.

Action between the Georgia, Carolina & Northern Railway Company and others and Mattie Brooks. From the judgment, the railroad company and others bring error. Affirmed.

Erwin & Erwin and P. H. Kinnebrew, for plaintiffs in error. John J. Strickland, for de

fendant in error.

PER CURIAM. Judgment affirined.

COBB, J., disqualified.

CARLTON v. STATE.

(Supreme Court of Georgia. May 19 1897.) CRIMINAL LAW-EVIDENCE.

The evidence was insufficient to support the finding of the jury, and the court erred in not granting a new trial, upon the ground that the verdict was contrary to law.

(Syllabus by the Court.)

Error from criminal court of Atlanta; J. D. Berry, Judge.

Mrs. M. A. Carlton was convicted of crime, and brings error. Reversed.

Arnold & Arnold, Simmons & Corrigan, and Harvey Hill, for plaintiff in error. James F. O'Neill, Sol. Gen., for the State.

PER CURIAM. Judgment reversed.

MATTHEWS v. PITTMAN.

upreme Court of Georgia. May 6, 1897.) REVIEW ON APPEAL.

There was no error committed at the trial, er in charging or refusing to charge as rested. The evidence warranted the verdict. not, under the evidence, excessive in amount. yllabus by the Court.)

rror from superior court, Madison county; Reese, Judge.

tion by R. L. Pittman against J. H. Matvs. Judgment for plaintiff. Defendant gs error. Affirmed.

T. Brown, John E. Jordan, and John P. nnon, for plaintiff in error. John J. ckland, for defendant in error.

ER CURIAM. Judgment affirmed.

PORTER v. COOK, Ordinary, for Use, etc. (Supreme Court of Georgia. July 14, 1897.) APPEAL-REVIEW-GRANT OF NEW TRIAL.

There being sufficient evidence to support the verdict, the trial judge being satisfied therewith, and no error of law being complained of, this court will not control his discretion in refusing to set it aside, and grant a new trial.

(Syllabus by the Court.)

Error from superior court, Walton county; N. L. Hutchins, Judge.

Action by R. A. Cook, ordinary, for the use of certain persons, against J. L. Porter, executor. Judgment for plaintiff. Defendant brings error. Affirmed.

J. M. Pace and T. Spearman, for plaintiff in error. H. D. McDaniel and F. C. Foster, for defendant in error.

PER CURIAM. Judgment affirmed.

ADAMS v. BANK OF STEWART COUNTY. (Supreme Court of Georgia. May 21, 1897.)

DIRECTING VERDICT.

A careful comparison of the brief of evidence in the present record with that appearing in the record of this case when it was here at the March term, 1895 (23 S. E. 496), discloses that, while the two briefs are not in all respects identical, the evidence at the last trial, taken as a whole, was not in any substantial particular stronger for the defendant than on the trial under review at the term above mentioned. This being so, and it having been then decided that a verdict for the defendant could not lawfully stand, it follows that the trial judge did not, at the last hearing, the facts being practically the same as before, err in directing a verdict for the plaintiff.

(Syllabus by the Court.)

Error from superior court, Chattahoochee county; W. B. Butt, Judge.

Action by the Bank of Stewart County against T. M. Adams. Judgment for plaintiff. Defendant brings error. Affirmed.

Brannon, Hatcher & Martin, for plaintiff in error. Watts & Hickey, McNeill & Levy, C. J. Thornton, and L. McLester, for defendant in error.

PER CURIAM. Judgment affirmed.

LITTLE, J., disqualified.

PEACOCK v. BURROUGH, Sheriff. (Supreme Court of Georgia. May 21, 1897.) CERTIORARI.

Under the evidence in this case, there was no error in overruling the certiorari. (Syllabus by the Court.)

Error from superior court, Bartow county; T. W. Milner, Judge.

Action between Stiles Peacock and L. Bur

rough, sheriff. From a judgment for the lat ter, the former brings error. Affirmed.

J. B. Conyers and Kontz & Conyers, for plaintiff in error. A. S. Johnson, for defendant in error.

PER CURIAM. Judgment affirmed.

MAYOR, ETC., OF SAVANNAH et al. v.
GRESHAM.

(Supreme Court of Georgia. March 8, 1897.) INJUNCTION-COLLECTION OF LICENSE TAX.

Where an execution had issued to collect a license tax imposed by a municipal ordinance upon a particular business, and the defendant in execution filed an equitable petition to enjoin its collection on the ground that he was not engaged in a business to which the ordinance in question was applicable, and at the hearing the contrary was affirmatively and conclusively proved, it was error to grant a temporary injunction suspending the further progress of the execution. (Syllabus by the Court.)

Error from superior court, Chatham county; R. Falligant, Judge.

The following is the official report:

A. J. Gresham brought his petition against the mayor and aldermen of Savannah and the city marshal, alleging: The marshal has lev ied a city tax execution on property of petitioner, to collect $250 alleged to be due the city by petitioner as a tax or license upon him as a person, other than a pawnbroker, engaged in the business of lending money on personal property in Savannah, and is about to sell the property levied on. Petitioner is not indebted to the said city in said sum. or in any sum, either as a tax or license for being engaged in said business, or for any other purpose. He is not engaged in said business. Believing he had a remedy at law, petitioner prepared an affidavit of illegality and a good bond which he tendered the mar shal, but the marshal subsequently returned them to him, and is now proceeding with the levy. Petitioner prayed for injunction, temporary and permanent. Defendants answered that no cause for injunction was set forth in the petition; that it appeared from the petition that petitioner was not entitled to the relief asked for; and that petitioner was subject to the tax mentioned. Temporary injunction was granted, a hearing having been had, and to this ruling the defendants excepted. Reversed.

At the hearing petitioner introduced his petition, sworn to. Also, the affidavit of Ben Jackson: "During the past six months I have borrowed $4 from Gresham. Deposited my watch with him as security. Paid the money back within ten days after the loan. paying $4 only, not paying and not having been charged any interest, and there was no understanding that any interest was to be paid. Never borrowed money before or since from Gresham for which I deposited property as security. Understood when I borrowed the

$4 that it was loaned as a matter of accommodation, because of my urgent need, being one of Gresham's regular customers for groceries," etc. Also affidavit of John Cain: "Early in 1896 I borrowed $4, after much urging, as a matter of accommodation from Gresham, with whom I deal for my groceries and supplies. I offered Gresham interest on the money, which was declined upon the ground that he was not allowed to do that kind of business. I returned the $4 to him without any interest. During the time I had the money I left with Gresham a sewing machine as security. The money was loaned purely as a courtesy and accommodation." Also affidavit of Gus Watson: "In January, 1896, I had an organ pledged with another party for a debt due him, which would have been lost had it not been redeemed, and I borrowed from Gresham, with whom I deal for groceries, $25 with which to pay the debt and get back the organ. Gresham at first refused, but being further urged he finally consented, and loaned me the $25 in order to save the organ, as a matter of courtesy and accommodation. I paid the $25 and no more, cot paying any interest, Gresham accommodating me because I was a good customer." Gresham testified: "My business is the grocery and liquor business. I have a system of extending credit to my patrons by the use of checks. I take an order and issue a check in payment,-checks like that introduced in evidence. My customers give me an order, and I charge it on my little book and take the order. This is one of the orders, and it is the same as the others: 'Savannah, Ga., April 10, 1896. Paymaster of the Central of Georgia. Please pay to A. J. Gresham $26.85, and deduct the same from my April salary, and oblige. Irving Kennedy.' I issue a ticket, and in return get such an order for the face value of the ticket. They are not O. K.'d at all. I had a number of these orders, all taken in the regular course of my business. Those taken this month were the same as those taken heretofore. It is my regular way of doing business, to save bookkeeping. (Plaintiff here put in ten of these orders, dated April 10, 1896, none of which had been O. K.'d.) I have got the paymaster to accept these orders before pay day only where I do not know whether the man is on the force or not. A customer gets a dollar's worth of goods, and I punch out a dollar. When he comes to get a dollar (they sometimes want medicine and green meats, and they have got to have five dollars to pay them out of the barracks), I say, 'All right,' and I punch out ten, or sometimes fifteen, cents on the dollar, and perhaps twenty. The basis of punching out more than the actual amount is where they come and get fifty cents I punch out more, just as though I have sold them fifty cents' worth of merchandise, and charge a profit on the amount sold. Otherwise I would be transacting that business for nothing. I got this idea of conducting this form of credit 27 S.E.-43

in the turpentine business. In regard to the Thompson, mentioned in the affidavit of Kelly, the deputy marshal, Kelly simply asked me if I did business with Thompson and ever loaned him any money. I said I may have loaned him money, but did not say anything about a sewing machine in that regard. He asked if I ever loaned any money on a sewing machine as security. I said I did take a sewing machine, and let the man have $4 on it. He just called off other names, and said, just in this way, 'Did you ever loan money on an organ? I said, 'I loaned a customer $25 to keep his organ from being carried away from the city, but I did not charge him a penny's worth of interest.' He asked if I ever loaned money on a watch, and I told him that in my absence a man got $4 from my clerk, telling the clerk to keep his watch until the money was brought back; and when I came back I was informed of this by the clerk, and when the man came back and paid the $4 he got the watch. In none of these cases have I received a cent of interest where personal property has been deposited with me to secure a loan. I did not take any interest, because I knew it was against the law. I loaned Fred Hazel different amounts on exactly the same principle. I would punch the checks, and let him have the money to pay his rent, and sometimes for fresh meat. The customer who holds one of these tickets may get money advanced in lieu of goods. The tickets are issued as a basis of credit for goods. Gus Watson has been doing business with me for quite a while. I did not admit, in the presence of the finance committee, that I had loaned money in small amounts to various parties on personal property and at large rates of interest." On cross-examination he testified: "Where a customer wants fifty cents of groceries, I just punch fifty cents exactly, as if he paid the cash. I have a profit on the goods. I charge them just like anybody who had got the goods and paid cash. If I give him a ticket for $10, he gives me an order for only $10. When they get money, then I charge them interest and punch it our. As to what I generally charge, it is owing to the customer. If he is a good customer, and I have loaned him two or three dollars a month to buy a little green meat and drugs, I haven't charged anything. I sometimes charge them fifteen or twenty per cent. for the month. I have done that right, straight along. If a man is working for the Central R. R., I do not take any security for five dollars loaned him. I just give him those tickets voluntarily, and he gives me an order to save trouble; and if he says, 'I do not want groceries, but I want five dollars,' I tell him I do not want to do business that way. I do not think I have ever loaned money at interest except to a regular customer. Would not swear on that, because I do not remember. I might have, but I know they were all customers of mine. I wouldn't swear that I have not, because I might have

loaned in some cases. They would be customers I would consider, because they trade with me. They all traded with me, I believe. I have accommodated money to men who buy from me, and who run no particular credit. I don't know what you consider a customer. If he is a cash customer, I would consider them all customers; that's what I consider them. I wouldn't swear that I never loaned any money at interest during 1896 to a person except where he bought from me, but I believe that. I don't remember ever having done it. Before this execution was brought, when I got an order like that set out above, I would take it to the paymaster the same as I will others. I have already taken up some. Before the city claimed this money I just took them to him. He put O. K. on them only in cases where I want to know if this man is on the pay roll. He knows nothing about my having these orders until I carry them in. I take the entire chance. I would not consider a man a customer who borrows unless he traded with me. I am not in the money-lending business, although sometimes I have let people have money at interest where they take some in groceries. I don't remember letting any one have money unless they traded with me. I charge him interest, and get his order for my money, and I expect that man to come in and trade with me, but he is not bound to do it. When I let Watson have the money I did not expect him to pay interest on it. I told him when I gave him the money, on January 15th, that on account of the city claiming a license I could not take interest. This was before I got the notice from the city. I couldn't charge him if he let me have a watch. I will swear I never have charged a man, because I knew I was not allowed to do it." Redirect: "When these tickets are not entirely used the party comes up pay day, and says: 'Here is a check I have not traded out, and I gave you an order for $10, and here is a balance of $5 on the check.' I say: 'Here is your

$5, and take the check back.' I never retain anything for the $5 which I pay him back, but give him fully just what the card calls for. I always retain the difference between the amount of the check and the amount col

I

lected from the paymaster. I cannot say there is no case this year where I have loaned money to any one other than a person to whom tickets were issued for the purpose of trading them out primarily in groceries. might have done so. Cannot recall such an instance. Do not hold myself out to the public as being prepared to advance money in that manner, and am not engaged in the business of lending money in that manner. If I have done so, it has been an exceptional case, to some friend or customer's friend."

Defendant introduced the affidavit of Kelly: "Am deputy city marshal, and was at the meeting of the finance committee of the city at the hearing of the petition of Gresham to be relieved from said tax of $250, which peti

tion was before the city council, February 12, 1896, and was referred to the finance committee, the adverse report of which was adopted by council, February 26th. At this hearing before the finance committee Gresham admitted, in response to questions put to him, that on or about February 1, 1896, he loaned $4 upon a watch; that about the same date he loaned Mack Thompson $15 or $20 on a sewing machine; that between January and February, 1896, he loaned Fred Hazel $12: and that he had loaned money during 1896 to George Waters on an organ, the amount being $20; and he admitted that he expected to have returned on the short loan (as deponent understood, for thirty days) $26 for this loan of $20. It appeared at this investigation that Gresham was in the habit of lending money on cards to employés of the road and others who dealt with him, charging therefor large interest." Also affidavit of William Garrard and others, members of the finance committee, similar to the affidavit of Kelly. Also the affidavit of Joseph Rogers: "I worked for the C. R. R., at Savannah, for five or six months, up to February, 1896. During each month of this time I borrowed from Gresham, and he charged me twenty cents for each dollar advanced. I secured him by an order on the paymaster of the C. R. R. for the amount advanced, plus the interest, which would be O. K.'d by the paymaster. and this amount, with interest, would be collected by Gresham from the C. R. R. on pay day. I borrowed money twice in this way during the present year, paying interest to Gresham at the rate mentioned, and other employés of the C. R. R. did the same thing. Gresham would advance to any one working for the road at this rate of interest." Defendants put in evidence also the petition of Gresham to the mayor and aldermen, dated February 7, 1896. This petition stated, among other things: "It is his custom, in the course of the business [general grocery and liquor business], to deal with a number of his customers on credit. He takes no security save an order on the employer of the customer for a stated amount. He issues to customers a card for such amount as may be agreed upon, to be punched as the purchases are made, the balance at the end of the month unpunched being good for so much money, or, as it may be, extended credit on it. In addition to their groceries and supplies, his customers often need cash during the month for various expenses, and he often advances them small sums, punching the card for the sum loaned and interest, just as if there had been a purchase of groceries or anything else for like amount. That he had loaned no money for interest on articles of personalty deposited with him not on chattel mortgages, and that what he does loan, as aforesaid, is simply to his customers and at their solicitation."

It was admitted that the provision in the tax ordinance of Savannah for the year (1860) provided that "persons, other than a pawn

broker, engaged in the business of lending money on personal property," should pay a specific tax of $250.

Saml. B. Adams, for plaintiffs in error. Nicolson & McKethan, for defendant in error.

PER CURIAM. Judgment reversed.

MOORE v. STATE.

(Supreme Court of Georgia. July 20, 1897.)

ASSAULT-JUSTIFICATION-EVIDENCE.

1. The use of opprobrious words or abusive language does not necessarily, and at all events, justify the person to whom they are addressed in beating the person using the same. In every such instance the jury are to determine, in view of "the nature and extent of the battery," whether or not the accused was justified by the provocation given.

2. In the present case the evidence for the state made a plain case of assault and battery; and even upon the evidence for the accused a conviction was warranted if, in the opinion of the jury, the battery was disproportioned to the insult which provoked it. This being so, and the presumption, in the absence of any exception to the judge's charge, being that the jury were correctly instructed upon the law, there is manifestly no cause for granting a new trial.

HOPKINS v. GOOLSBY. (Supreme Court of Georgia. May 22, 1897.) DIRECTING VERDICT.

This being a claim case, and the question in controversy being whether certain crops levied on under an execution issued upon the foreclosure of a laborer's lien were the property of the defendant in execution, a cropper, or of the claimant, who was the landlord, and there being evidence which might have warranted a finding for the plaintiff in execution, it was error to direct a verdict for the claimant.

(Syllabus by the Court.)

Error from superior court, Early county; H. C. Sheffield, Judge.

Submission of controversy between W. R. Goolsby and Ella Hopkins. From a verdict for claimant, defendant brings error. versed.

Re

court which are not approved by the answer of the justice of the peace cannot be authenticated by aliunde affidavits; and such assignments, sought to be authenticated in such manner, should be disregarded by the judge of the superior court in passing upon the certiorari.

2. There being evidence to support the verdict, and the judge of the superior court having, upon the hearing of the petition for certiorari, approved the finding of the jury, this court will not interfere.

(Syllabus by the Court.)

Error from superior court, Milton county; G. F. Gober, Judge.

Action by C. A. Morris against D. R. Morris in trover for a mule.

The following is the official report:

The jury in the justice's court found in favor of the plaintiff, and the finding was sustained on certiorari. The assignments of error in the petition for certiorari are that the verdict is contrary to law, and against the weight of the evidence, and that counsel for the plaintiff, in concluding argument, indulged in unfair and illegal remarks, calculated to mislead the jury, and take their minds away from the real issue in the case, and persisted in so doing, although notified by defendant's counsel. In the answer of the justice he states that he does not recollect how the argument was. Defendant, on the hearing in the superior court, produced an affidavit of Williams that he was on the jury that tried the case in the justice's court, was foreman of the same, and that the part of the petition for certiorari which refers to the argument of plaintiff's attorneys is true, to the best of his knowledge and belief. The judge of the superior court ordered this affidavit to be stricken from the record, it being offered, not as a traverse, but as a verification of one of the grounds of error. To this ruling, and to the overruling of the certiorari, defendant excepted. [Affirmed.]

The testimony as to the ownership of the mule was conflicting. Plaintiff testified that he bought the mule in Atlanta, in March. 1892, with his own money, which he had made before he was married, in 1886. He made it when a boy, from the cotton patch his father gave him, and by working for W. B. Grant, in a store at Cornelia, in 1881 or 1882, when he (plaintiff) was about 18 years old. He worked for Grant two or three months, at $20 per month. He paid $90 for the mule when he bought her. He retained her in his possession from that time until defendant took her from plaintiff's wife, in his absence, recently, before the suit was brought. He was a member of the firm of Morris & Son, composed of him and his fa ther, doing business in Alpharetta. They sold one of the mules they had, and, when plaintiff bought this mule, he put it in the team they then ran. He did not buy her with money of the firm. He entered the store with his father in 1883; never put any money therein, but his father furnished it all. Plaintiff did all the outside work, and looked after the team, which stayed at his