The

Expressio unius est exclusio alterius. securities are excepted from a discharge by the unmistakable terms of the judgment. Furthermore, the dismissal of the rule nisi was predicated on payment of the costs, and it appears from the record that the prerequisite was not complied with until November 25, 1905, more than a month after the issuance of the second rule nisi. This would have defeated a discharge and have allowed the rendition of judgment absolute on the first rule, if not on the second. Pen. Code 1895, § 935; Ward v. Colquitt, 62 Ga. 267. So that the judgment for costs on the rule nisi, April 18, 1905, did not discharge or relieve the securities on the bond.

It

Another question is presented by the briefs to which we will direct our attention. is the inquiry whether a bond can be formally forfeited and rule nisi be issued more than once. As stated in briefs of counsel for both parties, the question has never been expressly decided. But, bearing in mind the fact that the formal words of forfeiture by which the defendant is orally called in court by the sheriff, who, repeating after the state's counsel, likewise warns the securities by name to produce the body of the principal as they are bound to do, etc., is merely an ancient formality, now virtually of no service, and that the forfeiture really begins with the judge's signature to the rule nisi, and considering further that the function of this rule, as before stated, is merely to notify the bondsmen, it is clear to our minds that there is no reason why numerous rules nisi and scire facias may not issue without affecting its validity, or its binding force as regards the sureties. The bond does not become functus officii until there has been entered on the minutes a rearrest of the defendant under order of the judge at his discretion (Smith v. Kitchens, 51 Ga. 160, 21 Am. Rep. 232), or unless there has been a surrender of the principal, or a judgment absolute for the amount of the obligation, or there has been a rearrest of the defendant by an order entered in pursuance of a motion to strengthen the bond by additional security. The scire facias is a civil suit. No one would insist that to bring a suit on a note, and, for any one of various reasons, to dismiss it, would avoid the note and prevent a subsequent action. The rule nisi and scire facias constitute the beginning of a suit on the criminal bond, and can be dismissed without prejudicing or preventing a subsequent forfeiture.

Counsel for plaintiff in error insists that the law applicable to sureties under ordinary circumstances applies to sureties on a recognizance, and any act of the law, or its machinery, the court or its officers, which increases the risk of the sureties, will relieve them. Under Civ. Code 1895, § 2972, acts of "the creditor"-the opposite party-are those that relieve. Certain acts of the Solicitor

General representing the state the opposite party-can relieve sureties, but the court in rendering a judgment is in no sense the opposite party. If his acts are erroneous, they can be taken advantage of only in the manner provided by law for review. Certainly the authorities cited do not support the contention of plaintiff in error. In Lamb v. State, 73 Ga. 587, the case in which the principal was bound to appear and answer had been continued, and the bond did not (as in the present case) obligate the securities to produce the principal from "term to term." Likewise in Colquitt v. Smith, 65 Ga. 341, the bond, not being from term to term, was not forfeitable, because functus officiiit had served its day. In Roberts v. Gordon, 86 Ga. 386, 12 S. E. 648, the principal had been tried, convicted, and sentenced, and the court was obliged to hold that after sentence he ought to have been, and hence was presumed to be, in the custody of the sheriff. Bethune v. Dozier, 10 Ga. 235, was not a case of forfeiture of a criminal bond. The most that can appear from that case to be applicable even as argument in this is the principle that, "the undertaking of a surety being stricti juris, he cannot

be

bound further than the very terms of his contract; and, if the principal and obligee change the terms of it without his consent, the surety is discharged." While the state, in the name of the Governor, is the obligee, the judge is not even officially a party thereto, and, as we have stated above, a judgment of the court cannot be treated as in the class with the acts of individuals by which, the risk of a surety being increased, he is released. The actions of a court are subjectmatter of review.

We conclude, therefore, that the judgment of the city court of Washington was right. None of the exceptions are well taken, and therefore the judgment is affirmed.

SEABOARD AIR LINE RY. v. BOSTOCK. (No. 63.)

(Court of Appeals of Georgia. Feb. 13, 1907.) 1. MASTER AND SERVANT-ACTION FOR INJURIES DECLARATION-SUFFICIENCY.

The declaration as amended is good as against a general demurrer.

LAW APPLICABLE

to

3. WRIT OF ERROR-OBJECTIONS BELOW-MOTION FOR NEW TRIAL-GROUNDS-AUTHENTICATION OF STATEMENT.

Where one of the grounds in the motion for new trial is the failure of the court to charge the above principle of law, and the question is made before this court that there is no sufficient verification of this ground, the court will examine the record and bill of exceptions to ascertain if such is the fact; and where it appears from the record that said ground of the motion was presented to the trial court, considered, and overruled, and it further appears that the entire charge delivered to the jury had been approved by the judge, and was at that time a part of the record, and, from an examination thereof, it is manifest that the court did not give in charge the foregoing principle, such facts, taken together, will be considered by this court as a sufficient verification of said ground of the motion. Colson v. Meyers, 5 S. E. 504, 80 Ga. 499 (3).

[Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1156.]

4. TRIAL INSTRUCTIONS-LAW APPLICABLE TO PARTICULAR THEORIES.

The error of the court set out in the second headnote requiring a new trial, a decision on the other assignments of error is not neces

sary.

(Syllabus by the Court.)

Error from City Court of Savannah; Norwood, Judge.

Action by one Bostock against the Seaboard Air Line Railway for personal injuries. Judgment for plaintiff, and defendant brings error. Reversed.

The plaintiff alleged that he was employed by the defendant company as a switchman, and while so engaged it became his duty to place against the wheel of a box car a chock, being a piece of scantling four by four inches square, and four or five feet long; that the railroad track ran east and west, and the chock was placed on the south rail of the track, 10 or 12 inches of the end of the chock being between the rails, and the longer part pointing south and being held in its position by being pressed against the car wheel; that he adopted the proper and usual method of chocking the wheel to prevent the car from rolling west and to cause it to remain stationary; that the object in chocking the wheel was to enable other servants of the company to couple a train to this box car; that it was the duty of the engineer of the train to have so backed it as to avoid coming in contact with the box car with unusual force and violence, but he backed the train against the box car with such great and unasual force and violence that the wheel of the moving train ran upon the chock and threw the projecting end of it around, so that it struck the plaintiff on the right leg near the knee, throwing him to the ground and producing a wound that has resulted in permanent injury to him (describing it, and alleging the damages sustained); that he did not know, and could not by ordinary care have known, that the engineer was about to strike the stationary car and the projecting Scantling with great and unusual force and violence, but had reason to believe that he

would have caused the train to back slowly and with due care. By its answer the defendant alleged that the injuries complained of were not caused by any negligence on its part, but were caused by the plaintiff's negligence, or arose from one of the risks of the business in which he was engaged; that by the exercise of ordinary care he could have avoided the injuries, and he did not exercise such care. There was a verdict for the plaintiff; and the defendant excepted to the overruling of its general demurrer to the petition, and of its motion for a new trial. The other material facts sufficiently appear in the headnotes.

J. Randolph Anderson, for plaintiff in erGarrard & Meldrim, for defendant in

ror. error.

HILL, C. J. Judgment reversed.

CHAPMAN v. CONWELL. (No. 81.) (Court of Appeals of Georgia. Feb. 14. Rehearing Denied March 2, 1907.)

1. JUSTICES OF THE PEACE-MISTRIAL.

A justice of the peace has the right to declare a mistrial, where the jury cannot agree on a verdict. Even if this right did not exist as an inherent right in the court. its exercise would not result in preventing the further prosecution of the case which had been withdrawn from the consideration of the jury by the declaration of a mistrial.

[Ed. Note. For cases in point, see Cent. Dig. vol. 31, Justices of the Peace, § 365.] 2. SAME-FORM OF ACTION.

A. sued B. in a justice's court "in an action of debt due on an account." The evidence showed that B.'s liability was based on an agreement made with A. to pay for the property represented by the account, in the event of its destruction by fire while A.'s house was occupied by B.'s servant. A. fully performed his part of the contract, and nothing remained to be done by B., except to pay for the property which was destroyed by fire while the house was occupied by his servant. Held, that such an action was properly brought, although there was an express contract between the parties on the subjectmatter from which the debt arose. The contract in question was evidence of the debt. Johnson v. Quin, 52 Ga. 485; Hill v. Balkcom, 5 S. E. 200, 79 Ga. 444; Tumlin v. Bass Furnace Co., 20 S. E. 44, 93 Ga. 599.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 31, Justices of the Peace, § 228.] 3. FRAUDS, STATUTE OF

TAKING.

ORIGINAL Under

The contract in this case was an original undertaking, and not within the statute of frauds.

4. SAME-EVIDENCE-SUFFICIENCY.

The value of the personal property destroyed by fire, for which the defendant had expressly agreed to pay, was substantially shown by the evidence.

(Syllabus by the Court.)

Error from Superior Court, Elbert County; Holden, Judge.

Action by G. E. Conwell against M. E. Chapman. Judgment for plaintiff. From an order dismissing a writ of certiorari, defendant brings error. Affirmed.

Z. B. Rogers, for plaintiff in error. 0. Roberts, for defendant in error.

HILL, C. J. Conwell brought suit against Chapman in the justice's court for a "debt due on an account." A copy of the account attached to the summons was as follows: "M. E. Chapman to G. E. Conwell, debtor. Jan. 2d, 1904. To 2 horse-loads of crabgrass hay, 3000 lbs, at $15.00, $22.50; 6 onehorse loads pea vine hay, 211⁄2 tons, $33.75; 1:00 bundles fodder at $2 per 100, $30.00.$86.25. Georgia, Elbert County. Personally comes G. E. Conwell, who on oath says that the above account is just, true, due and unpaid. G. E. Conwell." "Sworn to and subscribed before me, this 14th day of 1904. T. J. Cleveland, J. P." The defendant answered the suit by a general denial of the indebtedness, and by stating that, if he did owe any part or all of said account, "the charges are excessive, and that plaintiff has included in his account items that should not be." Before filing his answer, the defendant filed two special pleas: First, a plea to the jurisdiction; second, a plea in abatement. Both of said special pleas averred that at a previous trial of said case in the justice's court the presiding justice had declared a mistrial and dismissed the jury which had said case under consideration, said mistrial having been declared by the justice without the knowledge or consent of the defendant; and it was averred that the justice had no authority under the law to declare a mistrial, and that said suit should be dismissed. The justice overruled both of said special pleas, and the case proceeded to trial before a jury, which found a verdict for the plaintiff, in the sum of $62.50; and judgment was entered accordingly. The defendant filed his petition to the superior court for the writ of certiorari, which was sanctioned, and the writ issued. On the hearing of the certiorari in the superior court, it was overruled and a new trial refused, and the case comes to this court for review.

An understanding of the errors insisted on in this court makes necessary a consideration of the evidence adduced on the trial in the justice's court. This evidence may be substantially stated as follows: The defendant had employed a negro woman, for whom he wanted to get a house to live in until his own was ready for her occupation. He asked the plaintiff to let him put her in his house, and the plaintiff agreed to do so, provided the defendant would be responsible for the destruction by fire of certain agricultural products which he had stored in said house, being the same for which suit is brought. The defendant made the promise and agreement, and put his servant in the house. The house burnt down, and the said personal property was destroyed by the fire. After the fire the plaintiff went to the defendant and demanded that he perform his agreement and pay for the products so destroyed. This the de

(1)

fendant agreed to do, stating that "he would be as good as his word, and would pay for the stuff." This promise, however, seems to have been "made to the ear and broken to the hope," for the defendant did not pay; and hence the suit. The assignments of error insisted upon before this court are: That the pleas in abatement and to the ju risdiction should have been sustained by the justice, and the case dismissed. (2) If the plaintiff in the justice court had any rights upon which he could recover, they were based upon an express contract and not upon an open account, and the suit should have been based upon the contract. (3) That the evidence showed that the cause of action sued on was a parol promise to answer for the debt, default, or miscarriage of another. That the verdict was without evidence to support it, as it failed to show any value of the agricultural products, which had been destroyed by the fire.

(4)

1. We think a justice of the peace has a right to declare a mistrial. Even if such right is not expressly given by statute, it must exist as an inherent right of all court where jury trials obtain. If, however, the justice should exercise such right without authority, we cannot agree with our learned Brother who represents the plaintiff in error that the result would be to destroy the right of action or abate the suit.

2. The second ground of error is not without difficulty. But, under the liberal rules of pleading applicable to suits in justice's courts, we think this suit can be upheld. The bill of particulars attached to the summons called upon the defendant to pay for the value of certain agricultural products. It is true he had not received any of the goods sued for, but he had expressly agreed to pay for them in the event of their destruction by fire while his servant was occupying the plaintiff's house, where the goods were stored. This was a contract between the parties which the plaintiff had fully performed on his part, to wit, he had turned his house over to the servant of the defendant, with an express agreement with the defendant that he would pay for the personal property if the same was destroyed by fire while the servant occupied the house. The event happened which fixed the liability of the defendant. and there was nothing left to be performed but payment by the defendant of the loss incurred. Under these facts an action on the account will lie to recover the value of the property destroyed, and the contract is evidence of the debt. Dobbins v. Pyrolusite Co., 75 Ga. 450; Hill v. Balkcom, 79 Ga. 444, 5 S. E. 200; Hancock v. Ross, 18 Ga. 364.

3. The facts in this case show that the agreement to pay, made by the defendant, was an original undertaking, and not within the statute of frauds.

4. The value of the agricultural products destroyed by the fire was substantially shown by the evidence. The bill of particulars sets

forth the value of each kind of product destroyed, and the plaintiff testified that the account was correct, as set out by said bill of particulars.

For the reasons given, we hold that the judgment of the superior court, overruling the certiorari and refusing to remand the case for a new trial, was correct. Judgment affirmed.

MASON v. STATE. (No. 262.) (Court of Appeals of Georgia. March 28, 1907.) 1. INTOXICATING LIQUORS-STATUTES-REPEAL BY IMPLICATION.

Act 1877, p. 189, making unlawful the sale of intoxicating liquors within three miles of the Masonic Academy in the town of Swainsboro, was not repealed by section 26 of the charter of the city of Swainsboro, approved December 6, 1900.

2. INFORMATION-SUFFICIENCY-PLACE OF OF

FENSE.

The words, "in Swainsboro, Georgia," used in a criminal accusation, are apt words to convey the meaning that the acts alleged occurred within the territorial limits of the municipal corporation bearing that name.

[Ed. Note. For cases in point, see Cent. Dig. vol. 27, Indictment and Information, § 234.] 3. INTOXICATING LIQUORS-OFFENSES-SALES AT PROHIBITED PLACES.

The mere fact that the school formerly taught in the Masonic Academy, which was designated as the center of a three-mile area in which a local prohibition act became effective, is no longer taught in the original building, but in a new house a short distance away, does not invalidate the conviction, under that act, of one who is guilty of selling intoxicating liquor within three miles of both the original and the subsequent location of the school.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 29, Intoxicating Liquors, § 178.]

4. CRIMINAL LAW EVIDENCE - BEST EVIDENCE.

Oral testimony tending to prove that a given act occurred within three miles of a certain Masonic Academy is not subject to the objection that the charter of the academy is the highest evidence.

5. INTOXICATING LIQUORS-DEFINED-MEDICINAL PREPARATIONS-PATENT MEDICINES.

The expression "intoxicating liquors," as used in statutes, in the absence of other words tending to limit the meaning, may be defined as including any liquid intended for use as a beverage or capable of being so used containing alcohol, obtained either by fermentation or distillation, or both, in such a proportion that it will produce intoxication when taken in such quantities as may practically be drunk.

(a) Medicinal, toilet, and culinary preparations, recognized as such by standard authority (such as the United States Dispensatory) and not reasonably capable of use as intoxicating beverages-e. g., tincture of gentian, paregoric, bay rum, cologne, essence of lemon, wood alcohol-are not ordinarily to be regarded as being within the meaning of the expression "intoxicating liquors," though such articles are liquid, contain alcohol, and may produce intoxication.

(b) Patent medicines, cordials, bitters, tonics, and other articles not recognized by standard authority as being within the class just mentioned are to be regarded as being intoxicating liquors, if they are capable of being used as a beverage and contain such a percentage of al

cohol as that, if drunk to excess, they will produce intoxication.

[Ed. Note. For cases in point, see Cent. Dig. vol. 29, Intoxicating Liquors, §§ 142-146.] 6. CRIMINAL LAW-TRIAL INSTRUCTIONS DUTY TO SUBMIT DEFENSES.

While the evidence was amply sufficient to support the verdict, yet, since the defendant made the specific contention that the particular patent medicine which he was accused of selling was not capable of being used as a beverage, and introduced proof tending to show this fact, and the trial judge, in his instructions to the jury, entirely ignored this defense, the exception upon this ground must be sustained.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1986.]

(Syllabus by the Court.)

Error from City Court of Swainsboro; Mitchell, Judge.

One Mason was convicted of an unlawful sale of liquor, and he brings error. Reversed. Saffold & Larsen, for plaintiff in error. Henry R. Daniel, Sol., for the State.

POWELL, J. In 1877 a local act was passed making it penal to sell "spirituous or intoxicating liquors, schnapps, or bitters," within three miles of the Masonic Academy in the town of Swainsboro, Emanuel county, Acts 1877, p. 189. The defendant was convicted under an accusation charging that he "did sell in Swainsboro, Georgia, within and in less than one mile of the Masonic Academy, for valuable consideration, a certain quantity of intoxicating liquor, commonly known as 'Rutona." Upon the trial the State proved, by several witnesses, that they had bought Rutona of the defendant at his drug store in Swainsboro; that they had drunk it, and that its effects were similar to those of whisky; that it was intoxicating. It is described as tasting like whisky with something bitter in it. One witness says: "I do not know what Rutona is made of. I don't know a single ingredient in it, but there must be some alcohol in it from the effects it has. I never drank much of it, but on one or two occasions, when I had drunk too much whisky, and whisky was out, and I was feeling sick, I drank this. After a man has been on a drunk and he is nervous, he will drink most anything that is intoxicating, if he can't get whisky. I drank this Rutona, and I know it will get up steam in a little while. It will quiet the nerves and put the blood to circulating, and make you feel good again." The defendant introduced, among other witnesses, the president and the secretary of the Columbia Drug Company, the corporation by which Rutona is manufactured. The president testified that he was a chemist by profession, and that the percentage of alcohol in Rutona is 22 per cent. in maceration, but that by the time it is through evaporating there is not over 18 to 20 per cent. left. Formerly the percentage of alcohol was higher, but, by experiment, the amount had been reduced, and the above was the mini

mum amount which would preserve the alkaloids and keep the active ingredients in solution; that quinine is the active principle of Rutona; that it is a medicine, is not manufactured or sold as a beverage, is not an intoxicating liquor; that, if a person were to take enough of the medicine to be affected by the alcohol, "he would be in a bad fix, he would not have any head left." The secretary of the Columbia Drug Company also testified that the percentage of alcohol in Rutona was 22 per cent. The medicine is obtained by allowing the alcohol to percolate through Peruvian cinchona bark and other crude drugs. Only so much alcohol is used as is absolutely necessary to hold the drugs in solution. It is intensely bitter, does not contain one-fourth as much alcohol as cheap whisky, is incapable of being used as a beverage. If a man were to drink enough of it to cause him to be affected by the alcohol, he would be positively stupefied. It contains less alcohol than a great many of the household remedies now on the market. Another witness testified, for the defendant, that he had bought a bottle of Rutona and had used it according to directions, and that it did him good; but this witness evinced his impartiality by testifying on cross-examination: "Good old rye whisky will do me good too, any tonic will do me good, and I expect it [referring to Rutona] would make you drunk." The defendant stated that he had sold Rutona along with other patent medicines in his store, not as a beverage, and with no intention of violating the law. Two bottles of the Rutona were introduced in evidence and submitted to the consideration of the jury, but, as none of this was transmitted to this court with the record, we are unable to give any more accurate description of it than we have been able to summarize from the evidence as above. The building known as the Masonic Academy in Swainsboro is no longer used for school purposes, though the Masonic lodge is still located there. The school has been moved to a new building just a short distance away. The drug store of the defendant, where the sales took place, was within a few hundred yards of both the old and the new location of the school.

1. By demurrer the point was raised that the act of 1877 is no longer in effect; that it has been repealed by the charter of the city of Swainsboro, approved December 6, 1900. The 26th section of that charter (Acts 1900, p. 435) is as follows: "That the city council shall have complete control of the manufacturing, wholesaling, and retailing of spirituous or malt liquors or any intoxicants in the city; provided, the license for retailing such shall not be less than one thousand dollars per annum; to prohibit the storage or keeping of wine, beer, malt, alcoholic or intoxicating liquors of any kind for illegal purposes, or prohibit the same from being brought into said city, and to punish within the limits prescribed by this charter any per

son or persons violating the same." The repealing of statutes by implication is not favored. We construe this clause of the charter as giving the city authorities control of the retailing only of such liquors as may now or hereafter be lawfully sold in Swainsboro, if there are now, for any reason, or shall hereafter be, by the repeal of the statute of 1877 or otherwise, any liquors which may be lawfully sold there.

2. Another demurrer to the accusation makes the point that in the act of 1877 the language used in describing the Masonic Academy is "in the town of Swainsboro, in Emanuel county," while the accusation merely uses the words "in Swainsboro, Georgia." There is nothing in the point. Sessions v. State, 115 Ga. 18, 41 S. Ę. 259; Mayor of Smithville v. Dispensary Commissioners, 123 Ga. 559, 54 S. E. 539; Murphy v. Waycross, 90 Ga. 36, 15 S. E. 817.

3. The plaintiff in error contends that, since the school formerly taught in the Masonic Academy has been moved into another house near by, the act of 1877 is no longer of force. It is unnecessary for us to decide whether the act in question could be repealed even by the destruction of the building named therein and the total discontinuance of 'both the Masonic lodge and the school located therein at the time of the passage of the act, or whether the center of the three-mile territory to be affected has shifted by the removal of the school, since the acts for which the defendant was tried occurred within three miles of both the new and the old location of the school. We cannot hold that the slight difference in the present, from the former, location of the school, operated to repeal the statute. Compare Allen v. Lytle, 114 Ga. 275, 40 S. E. 238.

4. The holding in the fourth headnote seems obvious.

5. The definition of intoxicating liquors, contained in the fifth headnote, rests upon the authority of Black on Intoxicating Liquors, §§ 2, 3; Intoxicating Liquor Cases, 25 Kan. 751, 37 Am. Rep. 284; Colwell v. State, 112 Ga. 75, 37 S. E. 129.

6. We think that the verdict would have been authorized, although not absolutely demanded, not only by the state's testimony, but also by the evidence submitted by the defendant himself. Under the testimony of the manufacturers, Rutona contains 18 to 22 per cent. alcohol. Although one of the witnesses states that there is not one-fourth as much alcohol in this preparation as there is in cheap whisky, common knowledge contradicts him. Proof-spirit, or, as it is commonly called, hundred-proof, liquor, the United States government's basis for revenue tax, is defined by the Standard Dictionary to be "an alcoholic liquor that contains half its volume of alcohol." Very little whisky is hundred proof. Most of it, especially the cheaper grades, runs from seventy, and even lower, to ninety, proof; that is to say,