beyond the decided cases, when we honestly believe that the effect of so doing would be to unduly extend the operation of the "interstate commerce clause," which has already been construed to cover numerous classes of transactions which were, in our opinion, never contemplated by the framers of the constitution. Moreover, we think the present case is directly controlled by a decision of that high tribunal in Ficklen v. Shelby County Taxing Dist., 145 U. S. 1, 12 Sup. Ct. 810, in which it was held that general merchandise brokers were subject to state taxation, even though the tax incidentally affected interstate commerce, if it did so in a manner so remote "as not to amount to a regulation of such commerce." Mr. Chief Justice Fuller cites numerous previous decisions bearing upon this question, some of which are relied on by counsel for the present plaintiffs in error. It appears in each of the following cases, viz.: Robbins v. Shelby County Taxing Dist., 120 U. S. 489, 7 Sup. Ct. 592; Asher v. Texas, 128 U. S. 129, 9 Sup. Ct. 1; Stoutenburgh v. Hennick, 129 U. S. 141, 9 Sup. Ct. 256; Brennan v. City of Titusville, 153 U. S. 289, 14 Sup. Ct. 829,that the person making the sale was the immediate agent of a nonresident principal. The case of Stratford v. City Council of Montgomery, 110 Ala. 619, 20 South. 127, is easily distinguishable from the case at bar; for it appears in that case that, though Stratford represented several nonresident principals, he did so under special agreements made with them separately, and before any orders were solicited or received. The case of Leloup v. Port of Mobile, 127 U. S. 640, 8 Sup. Ct. 1380, was cited in the brief of counsel for the defendant in error in the Ficklen Case, supra, and was relied on by Mr. Justice Harlan in his dissenting opinion, but nevertheless the decision in Leloup's Case was not treated by a majority of the court as authority for a conclusion contrary to that reached by them in Ficklen's Case. With all respect, it seems to us that, if the principle announced in Leloup's Case is to be considered as controlling, no license tax could be exacted by a state of a broker any part of whose business, however small, involved interstate commerce. But, as has been seen, that case has not been strictly adhered to, and is not, therefore, to be considered as governing the case at bar. We are entirely satisfied that the judge of the superior court was right in overruling the certiorari. Judgment affirmed. All the justices concurring. ROBERTS v. STATE. (Supreme Court of Georgia. July 19, 1898.) CRIMINAL LAW-APPEAL-REVIEW. There was no error of law complained of. The evidence warranted the verdict, and the court did not err in refusing to grant a new trial. (Syllabus by the Court.) Error from superior court, Butts county; M. W. Beck, Judge. Lula Roberts was convicted of a crime, and brings error. Affirmed. Y. A. Wright, for plaintiff in error. O. H. B. Bloodworth, Sol. Gen., for the State. PER CURIAM. Judgment affirmed. KIDDER PRESS MFG. CO. v. FULTON BAG & COTTON MILLS. (Supreme Court of Georgia. July 19, 1898.) PLEADING AND PROOF-VARIANCE--NONSUIT. 1. Where the contract declared on was an agreement by the plaintiff to invent and patent a machine to print, cut, and fold cloth, and the defendant was to purchase the patent at an agreed price, and the evidence introduced on the trial by the plaintiff showed the designing and construction of a machine of the character contemplated in the contract, but that the patent which had been secured in relation to the same did not cover that portion of the machine which did the printing, there was a fatal variance between the allegata and the probata, and there was no error in awarding a nonsuit. 2. Viewing the case in the light of both the evidence admitted and that which was offered and rejected, a nonsuit was the only proper result in the case. (Syllabus by the Court.) Error from city court of Atlanta; H. M. Reid, Judge. Action by the Kidder Press Manufacturing Company against the Fulton Bag & Cotton Mills. From an order of nonsuit, plaintiff brings error. Affirmed. W. R. Hammond, for plaintiff in error. Glenn, Slaton & Phillips, for defendant in error. SIMMONS, C. J. 1. The contract declared on in the plaintiff's petition was one whereby the plaintiff was to design, construct, and obtain letters patent upon a machine which would automatically perform three separate and distinct things, to wit, print cloth in three or four colors, cut it into specified lengths, and fold it. If the machine designed was satisfactory to the defendant, it agreed to pay for the letters patent $2,500. The meaning of the contract is, in our opinion, that the plaintiff was to design, construct, and patent a machine combining the three elements specified, and that the defendant was to pay for the letters patent on such a machine. The plaintiff's evidence shows that the machine was designed and constructed according to contract; that the stipulated compensation was paid for building it; but that plaintiff patented, not the entire machine or all of its elements, but only two of these elements, the patent being for "an alleged new and useful improvement in machine for cutting, folding, and piling cloth, paper, or other fabrics." The evidence also shows that the plaintiff did not even apply for a patent on the entire machine or combination. It is claimed by the plaintiff that it was impossible for it to patent 2. There was no error of law committed. The evidence was sufficient to sustain the verdiet, and the court did not err in overruling the motion for a new trial. (Syllabus by the Court.) Error from city court of Atlanta; J. D. Berry, Judge. Action by Wyly B. Roberts against the Atlanta Consolidated Street-Railway Company. ror. Affirmed. R. J. Jordan, for plaintiff in error. Goodwin, Westmoreland & Hallman, for defendant in error. the printing machine, as such machine was old, and no material part novel or patentable. This, in our opinion, does not relieve plaintiff of its difficulty; for it contracted to obtain letters patent upon a machine of which the device for printing was a part, and it cannot recover upon the contract without showing a compliance with it. The patent obtained may be such as to protect the defendant, and do it just as well as the one which the defendant | Judgment for defendant. Plaintiff brings ercontracted for, but the defendant can still stand upon the contract, and demand that it be complied with before it be forced to pay for the patent. It can legally decline to accept the letters patent as a compliance with the contract, because they do not cover the machine, and are not what it contracted for. If plaintiff could not procure the patent on the portion of the machine which did the printing, this was its misfortune. It should not have made a contract to do so. Having made the contract, it cannot enforce it without a compliance on its part. See Westervelt v. Manufacturing Co., 13 Daly, 352. It will be seen that there was a fatal variance between the petition and the evidence as to the compliance of the plaintiff with the contract. The court, therefore, did not err in granting a nonsuit. 2. Under our view of the law of the case, if the rejected evidence had been admitted it could not have changed the result. Judg ment affirmed. All the justices concurring. CONALLY v. STATE. (Supreme Court of Georgia. July 19, 1898.) CRIMINAL LAW-APPEAL-REVIEW. There was no error of law complained of. The evidence authorized the verdict. The alleged newly-discovered evidence was impeaching in its character, and it was not error to refuse a new trial. (Syllabus by the Court.) Error from superior court, Butts county; M. W. Beck, Judge. General Conally was convicted of crime, and brings error. Affirmed. F. Z. Curry, M. M. Mills, and Harrison & Bryan, for plaintiff in error. O. H. B. Bloodworth, Sol. Gen., for the State. PER CURIAM. Judgment affirmed. ROBERTS v. ATLANTA CONSOL. ST. 1. It was not error in the trial judge, at the request of the jury, to direct the stenographer to read from his notes the testimony of the witnesses on a material issue in the case; it not appearing that counsel for the party complaining was absent when this direction was given, and did not consent thereto; and it further not appearing that the testimony read was inaccurate. LEWIS, J. 1. In the light of the record before us, the court committed no error in directing the stenographer, at the request of the jury, to read from his notes testimony of the witnesses as to the rate of speed at which te car was running. It is not alleged that this direction was given in the absence of plaintiff s counsel, or over his objection; nor does it appear that the testimony read by the stenographer was either inaccurate, or did not include all that the witnesses testified to on the subject. If the jury, after retiring to consider a case, should differ as to the testimony on a material point, we see nothing improper in their requesting the court that their recollection be refreshed by having the testimony, if taken down, read to them. On the contrary, it indicates a commendable purpose and desire to ascertain the truth of the case before rendering their verdict. We think it proper, however, in such a case, that counsel for both parties should be present in court when this is done. In the absence of anything to the contrary in the record, we will presume that the trial judge adopted the proper practice in this instance. We do not mean to say that, even if counsel were absent when this direction was given to the stenographer by the court, it would be ground for a new trial; especially if the counsel knew of the fact before the rendition of the verdict. Any objection to such a proceeding should be made as soon as known, and a party cannot take the chances of a verdict in his favor, and at the same time reserve the right to object in the event the verdict should be against him. Stix v. Pump, 37 Ga. 332-335; Shropshire v. Johnson, 62 Ga. 359, 360. 2. In the light of the entire charge of the court, there was no error of law in giving the charge complained of. The two distinct rules of law on the subject of contributory negli gence, and the use of ordinary care to avoid the consequences of defendant's negligence. were fairly given by the court separately and distinctly, and not in immediate connection one with the other. The evidence in the case was conflicting. That in behalf of the defendant was sufficient to authorize the jury to conclude that the plaintiff's injuries were the result of his own carelessness, and could not have been avoided by the exercise of ordinary care and diligence on the part of the defend 1. Property purchased by the head of a family, and paid for exclusively with the income of the homestead, may, for most purposes, be regarded and treated as an addition to the corpus of the homestead estate. nor 2. If, however, the head of a family purchases property, and pays for the same partly with such income and partly with means derived from another and independent source, taking the title to himself individually, and afterwards conveying such property to himself as the head of his family, this property does not become an absolute addition to the homestead; does the latter conveyance operate to vest in the head of the family, as such, a legal title which will support an ordinary claim, unaided by equitable pleadings. Upon such pleadings, supported by evidence, there might be an equitable apportionment or partition of the newly-acquired property, so as to add to the homestead what fairly belonged to it, and leave the balance subject to levy and sale. 3. Where the main issue in a claim case was whether or not the property levied upon had been paid for exclusively with the rents, issues, and profits of a homestead, it was error to exclude notes and mortgages given to various persons by the head of the family, who was the claimant; these documents having some relevancy upon this issue, and also tending to negative the claimant's testimony that the property in question had been paid for entirely with the income of the homestead. 4. One of the contentions of the plaintiffs in execution being that the claimant had, shortly before the rendition of the judgment they were seeking to enforce, conveyed the property in dispute to himself, as the head of a family, with intent to hinder, delay, and defraud creditors, it was, in view of all the evidence introduced at the trial, the duty of the court to submit to the jury the issue of fraud thus presented, and omitting to do so was erroneous. It was also, in this connection, erroneous to exclude evidence showing the value of the property conveyed by the claimant to himself as such head of a family. (Syllabus by the Court.) Error from superior court, Randolph county; H. C. Sheffield, Judge. Action by M. C. & J. F. Kiser & Co. against George W. Dozier. Judgment for plaintiffs. On execution levied, defendant interposed claim of homestead; and, from the judgment rendered thereon, plaintiffs bring error. Reversed. W. D. Kiddoo, Hood & Moye, Harrison & Peeples, and Shepard Bryan, for plaintiffs in error. J. H. Guerry and W. C. Worrill, for defendant in error. FISH. J. 1. It has been held by this court, and we think correctly, that investments of the income derived from property which has been set apart as a homestead go to enlarge the corpus of the estate which produced it. Wade v. Weslow, 62 Ga. 562; Johnson v. Franklin, 63 Ga. 378. This is true, although the head of the family may have contributed his labor in managing the homestead estate, and thus materially increased the amount of income which would otherwise have been realized (Kupferman v. Buckholts, 73 Ga. 778); for a "debtor cannot be forced to apply his labor to the extinguishment of his creditor's claim" (King v. Skellie, 79 Ga. 151, 3 S. E. 616). It follows that a creditor cannot subject to the payment of a debt due by his debtor property which the latter, as the legal representative of the beneficiaries of a homestead estate, has purchased and paid for exclusively with income derived therefrom. 2. Of course, a mere pretense that a fund coming into the hands of the debtor was derived, as income, from his management of the exempted property, will not suffice to defeat the rights of creditors. Staples v. Keister, 81 Ga. 772, 8 S. E. 421. Nor will property be wholly exempt when purchased by the head of a family, when it appears that it was paid for by him partly with income yielded by the homestead estate, and partly with means derived from another and independent source. Vining v. Officers of Court, 82 Ga. 222, 8 S. E. 185. Where, therefore, the title to property thus purchased is taken by the debtor in his individual capacity, a subsequent conveyance to himself as the head of his family will not operate to vest in him, as such, a legal title to the property which will support an ordinary claim, unaided by equitable pleadings, based upon the ground that such property thus became an absolute addition to the homestead estate. On the contrary, no greater interest therein than that which the beneficiaries of the homestead could equitably assert would pass, in any event, as against creditors; and it would seem, in the absence of equitable pleadings setting up the rights of such beneficiaries, the head of the family could not successfully resist an effort on the part of creditors to subject the property to the payment of claims held against him individually. In this connection, see Morris v. Tennent, 56 Ga. 577; Kupferman v. Buckholts, 73 Ga. 778, 781; King v. Skellie, 79 Ga. 147, 3 S. E. 614; Vining v. Officers of Court, 82 Ga. 223, 8 S. E. 185. In the present case no pleadings of the nature above indicated were filed, praying that there might be an equitable apportionment or partition of the property which was the subject-matter of dispute, so as to add to the homestead what fairly belonged to it, leaving the balance subject to levy and sale. The presiding judge was not therefore called upon to instruct the jury as to the law relating to this subject, nor is it incumbent upon us to say more in regard thereto. As this case must undergo another investigation, it is still possible for the pleadings to be so amended as to properly present the issue in question; and doubtless, if this is done, and the case is tried in the light of the law as herein announced, exact justice as between the respective parties will result. 3. The main contention of the plaintiffs in the court below was that the property levied upon had not (as was insisted by the claimant, and as was testified to by him) been paid for exclusively with the rents, issues, and profits arising from the homestead estate. In this connection, certain notes and mortgages executed by him, purporting to evidence transactions had with various persons in his individual capacity regarding property which he testified had been paid for entirely out of assets belonging to the homestead estate, were offered in evidence by the plaintiffs, but were excluded by the court. We think error was committed in rejecting these documents. Not only were they admissible as having some evidentiary value of their own concerning the question at issue, upon the idea that they constituted admissions against interest, but they bore directly against the credit of the claimant, who testified as a witness in his own behalf, and thus tended to cast suspicion upon and discount his testimony as to other matters. 4. It was strenuously insisted by counsel at the trial that the conveyance executed by the claimant to himself, as the head of a family, and which was made but a short time before the rendition against him individually of the judgment the plaintiffs were seeking to enforce, was illegal and void, because made with intent to hinder, delay, and defraud creditors. The court did not, however, present this contention to the jury. In view of all the evidence introduced at the trial, this became a vital issue in the case, and it was the duty of the court to have instructed the jury as to the law relating thereto, notwithstanding no written request to charge thereon was presented by counsel for the plaintiffs. Furthermore, we rule, in this connection, that the court committed error in not permitting plaintiffs to introduce evidence as to the value of the property which was included in the conveyance just mentioned. Having raised the issue of fraud, they were entitled to have this transaction closely scrutinized by the jury; and, to that end, it was their right to demonstrate by competent evidence, if they could, that the value of this property was out of all proportion to any amount which could possibly have arisen as rents, issues, and profits of the homestead estate during the period within which it was asserted by the claimant he had realized from that source the funds with which the property conveyed was purchased. On the whole, we feel that the plaintiffs were not afforded a full and fair opportunity to have the merits of their side of the controversy duly weighed and passed upon by the jury, and that justice demands that they should be awarded a new trial. Judgment reversed. ALEXANDER v. RHODES. (Supreme Court of Georgia. July 20, 1898.) LIABILITY OF LANDLORD-INJURY TO TENANT DANGEROUS PREMISES. A tenant has no right of action against a landlord for personal injuries sustained while attempting to pass from the house rented, when the landlord had the steps leading therefrom removed for the purpose of making necessary repairs, this condition of the premises being well known to the tenant before and at the time of the injury. This is true notwithstanding an emergency to leave at the particular time and place when egress from the house was sought. which could not have been foreseen by the landlord in time to prepare temporary facilities for a safe exit from the house. (Syllabus by the Court.) Error from city court of Atlanta; H. M. Reid, Judge. Action by Mary Alexander against A. G. Rhodes. Judgment for defendant, and plaintiff brings error. Affirmed. Jas. L. Key, for plaintiff in error. Dorsey, Brewster & Howell and H. M. Dorsey, for defendant in error. SIMMONS, C. J. The landlord was complying with his duties under the law. He was making needed repairs, which had, doubtless, been demanded by the tenant. There was no negligence, on the part of the landlord, in removing the steps in order to make the repairs. There was no notice given him, before the steps were removed or afterwards, of the emergency which necessitated the tenant's leaving the house. Without calling on the landlord or his agent to replace the steps, or to provide means of egress from the house, in order to respond to the emergency, the tenant undertook to descend "by sliding or easing herself down to the ground." In so doing, she assumed the risk or hazard. She slipped and fell, and was injured, in this attempt to lower herself to the ground, and this fall was clearly occasioned by her own negligence, or was attributable to accident alone. The facts of this case differ from those of Johnson v. Collins, 98 Ga. 271, 26 S. E. 744. In that case the landlord had made repairs, but had done so in a manner so negligent that the tenant, in attempting to use the steps, was injured. In this case the landlord was in the act of making repairs; the tenant saw the danger. and assumed the risk; and we cannot see that the landlord was in any manner negligent, or upon what principle he could be held liable. Judgment affirmed. All the justices concurring. LOUISVILLE & N. R. CO. v. SPINKS. (Supreme Court of Georgia. June 8, 1898.) BREACH OF CONTRACT ACTION EX DELICTO DAMAGES-INSTRUCTIONS. 1. A breach by a railroad company of an executory contract, into which it was under no legal duty of entering, to furnish the other contracting party with transportation from one point to another, is not a tort, and does not give rise to an action ex delicto. 2. The damages recoverable for the violation of such a contract are to be arrived at by taking into account the value of the injured person's lost time, the cost of transportation between the two places, and any other loss or expense legitimately flowing from the failure of the company to comply with its undertaking. 3. Physical discomfort, pain, weariness, and injuries to limb or foot occasioned by walking over the distance between the places above indicated are not proper elements of damage in such a case. 4. On the trial of an action for the breach of such a contract, it was erroneous to give in charge to the jury the rules of law relating to actions ex delicto, and especially to read to them the first sentence of section 3907 of the Civil Code, concerning the measure of damages in certain cases of tort. (Syllabus by the Court.) Error from city court of Atlanta; J. D. Berry, Judge. Action by H. D. Spinks, Jr., against the Louisville & Nashville Railroad Company. Judgment for plaintiff. Defendant brings error. Reversed. Van Epps & Leftwich, for plaintiff in error. J. T. Pendleton, for defendant in error. LUMPKIN, P. J. The plaintiff's petition alleged: The defendant made a contract with petitioner to work for it in its yards in the city of Cincinnati, Ohio. "Under the terms of said contract, defendant was to furnish petitioner transportation to the city of Cincinnati, and pay all of his expenses going to said city and while remaining in said city, until [the defendant] gave him work; and, if he was not willing to work after getting to Cincinnati, defendant was to furnish him transportation back to the city of Atlanta, Ga., and pay him for all the time in going and returning." In pursuance of this contract, he was conveyed to Cincinnati at the defendant's expense, and lodged in an hotel, but, on account of temporary illness, was denied employment, and forced to leave the hotel. He then demanded of the defendant a ticket which would bring him back to Atlanta, and the same was refused. Being without money, he was forced to walk back to his home, in Atlanta, a distance of several hundred miles, and in so doing suffered much from pain, weariness, and blistered feet. On the trial the plaintiff introduced evidence tending to support the allegations of his petition, and obtained a verdict for $370. The case was tried as an action ex delicto. The court permitted the plaintiff to prove as elements of damage the pain and weariness he suffered during his journey on foot between Cincinnati and Atlanta, and, in this connection, the fact that his feet, because of this walk, were blistered and made sore. Certain charges were given to the jury by which they were, in effect, instructed that, if the defendant wrongfully refused to give the plaintiff employment, and in violation of its contract declined to furnish him with transportation from Cincinnati to Atlanta, the injuries above mentioned might be considered in arriving at the amount of damages to which he was entitled. The court also read to the jury the first sentence of section 3907 of the Civil Code, which is as follows: "In some torts, the entire injury is to the peace, happiness, or feelings of the plaintiff; in such cases, no measure of damages can be prescribed, except the enlightened conscience of impartial jurors." Even if the defendant violated its agreement with the plaintiff, and he therefore became entitled to recover for a breach of the contract, the verdict now under review cannot stand, because the case was tried upon a totally erroneous theory. It was, in our opinion, a plain action ex contractu, and the law relating to actions ex delicto had no application to it whatever. It is exceedingly difficult, especially in view of the numerous decisions of courts holding that divers wrongs more or less connected with breaches of contracts are torts, to give an accurate and satisfactory definition of the word "tort." After pointing out many of the difficulties in the way of so doing, in the course of which it is said that "a tort is an act or omission, giving rise, in virtue of the common-law jurisdiction of the court, to a civil remedy which is not an action of contract," Pollock lays down the following somewhat elaborate definition of the meaning of this term: ""Tort' is an act or omission (not being merely the breach of a duty arising out of a personal relation or undertaken by contract) which is related to harm suffered by a determinate person in one of the following ways: (a) It may be an act which, without lawful jurisdiction or excuse, is intended by the agent to cause harm, and does cause the harm complained of. (b) It may be an act in itself contrary to law, or an omission of specific legal duty, which causes arm not intended by the person so acting or omitting. (c) It may be an act or omission causing harm which the person so acting or omitting did not intend to cause, but might and should, with due diligence, have foreseen and prevented. (d) It may, in special cases, consist merely in not avoiding or preventing harm which the party was bound absolutely, or within limits, to avoid or prevent." Webb. Pol. Torts, 4, 20. Mr. Bishop, in his work on Noncontract Law (section 4), says: "The word 'tort' means nearly the same thing as the expression 'civil wrong.' It denotes an injury inflicted otherwise than by a mere breach of contract; or, to be more nicely accurate, a tort is one's disturbance of another in rights which the law has created either in the absence of contract, or in consequence of a relation which a contract had established between the parties." This definition is adopted in 26 Am. & Eng. Enc. Law, 72: "The word 'torts' is used to describe that branch of the law which treats of the redress of injuries which are neither crimes nor arise from the breach of contracts. All acts or omissions of which |