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after the adjudication, the bankrupt makes an application for discharge, the suit shall be stayed until the question of such discharge is determined; and the allegation in this case is that an application for discharge was pending when the request to stay the suit was made to the justice's court. The object of the bankrupt law is to have an exclusive administration of a bankrupt's estate fairly and equally between all unsecured creditors. It does not permit the harassment of bankrupts, by suits for the collection of simple debts from which a discharge would be a release, until reasonable time has been given for the determination of the question of discharge. Especially is this true when the creditor has gone into the bankrupt court and proved his debt. In proper cases it allows suits for the purpose of liquidation.

2. Attack is made in this court on the verification by the magistrate of the allegations in the petition for certiorari. This verification is in the following language: "The facts set forth in the defendant's petition for certiorari are substantially true and correct, in so far as came within the knowledge of respondent." The criticism made is that it verifies the facts only "in so far as they came within the knowledge of respondent." We are not able to see how he could be expected to verify facts that did not come within his knowledge. In our opinion, the verification is sufficient; and, if the judge below dismissed the certiorari on the ground that it was not sufficient, this was error. Judgment reversed.

JOHNSON et al. v. WAXELBAUM CO. (No. 140.)

(Court of Appeals of Georgia. March 28, 1907.) 1. BANKRUPTCY-ACTION AGAINST BANKRUPT

-STAY.

A plea to a suit in the state court, setting up the pendency of bankruptcy proceedings and asking for a stay of the suit, must show that the debt sued on is one from which a discharge would be a release, and that application for a discharge had been made, or that the time for such application had not elapsed. 2. SAME.

The suit in the state court will not be stayed on the application of a co-debtor with the defendant, against whom no bankruptcy proceedings are pending.

3. CORPORATIONS-AUTHORITY OF OFFICERS.

Where a corporation holds out a person as its officer, it is bound by acts apparently within the scope of his authority, notwithstanding a by-law or other limitation upon the power of the officer, not known to a party dealing with him as such officer.

4. PLEADING DECLARATION - OBJECTIONSWAIVER-BILLS AND NOTES-JOINT MAKERSURETY.

One who writes his name upon the back of an otherwise complete note, merely for the purpose of guaranteeing the payment, is apparently a surety only, and not liable as an indorser. Where he is sued on the note as joint maker, and makes no objection by demurrer or plea to the form of the suit, he is bound by the judg

ment.

(Syllabus by the Court.)

Error from City Court of Sylvester; Park, Judge.

Action by the Waxelbaum Company against W. A. Johnson and the Pate-Smith Company. Judgment for plaintiff, and defendants bring error. Affirmed.

Payton & Hay, for plaintiffs in error. Hardeman & Jones and Polhill & Foy, for defendant in error.

HILL, C. J. The Waxelbaum Company brought suit on a note in the city court of Sylvester against the Pate-Smith Company and W. A. Johnson as makers. The defendants filed pleas and answers substantially as follows: (1) That the Pate-Smith Company, on August 16, 1904, had been adjudged a bankrupt; that the plaintiff had proved its claim in the bankruptcy case in the bankrupt court at Thomasville, Ga.; that the trustee had in hand $2,700 to be distributed to creditors; that the Pate-Smith Company had not been discharged, and that this suit should therefore abate, to await the action of the bankrupt court, to ascertain what amount, if any, the Pate-Smith Company is indebted over and above the amount realized from the assets of the said defunct company; and that the plaintiff should be remanded to its rights in the bankruptcy court. (2) That the note sued on was never made by the PateSmith Company, because it was not signed by the president of the company, but appears to have been made, and the stamp thereto attached of the name of Pate-Smith Company and signed, by W. B. Williams as secretary, while the charter and by-laws of the company required notes to be signed in the name of the Pate-Smith Company by the president of the company, and countersigned by the secretary and treasurer. The defendants deny that the Pate-Smith Company, or any one else properly authorized by it, did make and execute the note sued on. The plaintiff demurred to these pleas and answers, and the court struck them, directed a verdict, and entered judgment against both of the defendants. To the order of the court striking the pleas and answers, both of the defendants excepted; and to the judgment against the defendants jointly the defendant Johnson excepted, because, under the plaintiff's pleadings, the verdict should have been against the Pate-Smith Company as maker and W. A. Johnson as indorser only.

1. The plea setting up the pendency of bankruptcy proceedings against the PateIt Smith Company was properly stricken. did not come up to the requirements of such a plea (Bankr. Act July 1, 1898, § 11, c. 541, 30 Stat. 549 [U. S. Comp. St. 1901, p. 3426]). It did not allege that the Pate-Smith Company had applied for a discharge, or intended to apply for a discharge, or was entitled to a discharge, or that the debt sued on was one from which a discharge would be a release. Hunter v. Lissner, 1 Ga. App. 1, 58

S. E. 54. What we have said above applies to the plea of bankruptcy proceedings made by the defendant the Pate-Smith Company. The other defendant, W. A. Johnson, whether as indorser, surety, or joint maker, could not plead in discharge of his liability on the note the bankruptcy of the maker. Section 16 of the bankrupt act provides: "The liability of a person who is a co-debtor with, or guarantor or in any manner a surety for, a bankrupt shall not be altered by the discharge of such bankrupt."

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2. The plea of non est factum was properly not allowed as a defense against the note in question. This note was signed in the corporate name by the secretary and treasurer, and was indorsed by the person who was president of the corporation. affidavit of W. A. Johnson to the plea.) do not think the by-law requiring notes of this company to be signed by the president and countersigned by the secretary and treasurer would be binding upon third persons who had no knowledge of such requirements. We do not think that an officer of a corporation would be permitted to make a corporate contract, and then, without denying (as in the case of the execution of a note) that it was for a valid consideration received and enjoyed by the corporation, be allowed to defend a suit on the note because of a by-law limitation unknown to the party dealing with the corporation. 10 Cyc. 942. "Every corporation acts through its officers, and is responsible for the acts of such officers in the sphere of their appropriate duty; and no corporation can be relieved of its liability to third persons for the acts of its officers by reason of any by-law or other limitation upon the power of the officer, not known to such third person." Civ. Code 1895, § 1861. Where a corporation holds out another as its officer, it is bound by acts within the apparent scope of his authority, notwithstanding by-laws limiting such authority, unknown to a person dealing with Lim as such officer. Raleigh R. Co. v. Pullman Co., 122 Ga. 705, 50 S. E. 1008. The plea in this case did not allege that the Waxelbaum Company had any knowledge or notice of the by-law in question.

3. The defendant Johnson was sued as joint maker, and he did not, either by demurrer or plea, make any objection to the form of the suit, or allege that he was other than joint maker. He cannot now be heard to object on the ground that the suit did not describe him as indorser, and that a judgment was not entered up against him as such. As a matter of fact he seems not to have been an indorser, but was either a joint maker or a surety. The fact that he wrote his name across the back of the note did not necessarily make him an indorser. Ridley v. Hightower, 112 Ga. 476, 37 S. E. 733.

The judgment of the court in striking the pleas and answers, and in directing a verdict for the plaintiff is affirmed.

FERGUSON v. STATE. (No. 390.) (Court of Appeals of Georgia. May 16, 1907.) 1. CRIMINAL LAW-SUFFICIENCY OF EVIDENCE. To authorize a conviction of crime, the state must prove every material allegation necessary to constitute the offense charged; and, when a given act may be done under certain circumstances without guilt (unless the statute contains provisos and exceptions in distinct clauses), the proof for the state must take such act out of the exceptions provided by the statute. 2. WEAPONS SHOOTING ON HIGHWAY.

To sustain a conviction for a violation of Pen. Code 1895, § 508, it must not only be shown that the accused shot a gun or pistol between dark and daylight, as charged, and that such shooting was not in defense of person or property, but it is further incumbent on the state (unless the proof shows that such firing was done on a public highway) to prove that such shooting or firing within 50 yards of the public highway was not on the defendant's land. 3. SAME EVIDENCE.

The evidence sustains the verdict, and there was no error in refusing a new trial. 4. CRIMINAL LAW-NEW TRIAL.

The newly discovered evidence presented would not require a different result on another trial.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 2336.] 5. SAME-APPEAL.

This court gathers the facts of the case from the brief of evidence as approved by the trial judge.

(Syllabus by the Court.)

Error from City Court of Americus; Crisp, Judge.

One Ferguson was convicted of shooting on the highway, and brings error. Affirmed. Blalock & Cobb, for plaintiff in error. Zach. Childers, Sol., for the State.

RUSSELL, J. In the city court of Americus the defendant was convicted of the offense of shooting on a public highway. His motion for a new trial was overruled, and he excepts to that judgment. The motion is upon the statutory grounds and also upon the extraordinary ground of newly discovered evidence.

The plaintiff in error contends that it is necessary for the state to prove all of the ma terial allegations before the jury would be authorized to convict, and insists that the state failed in this case to establish his guilt, because, under Pen. Code 1895, § 508, guilt is not established by proving alone that the defendant shot on a public highway between dark and daylight, but it is also incumbent upon the state to prove to the jury beyond a reasonable doubt that the shooting was done willfully and wantonly, and not in self-defense, nor on the premises of the defendant. We willingly agree that the contention of plaintiff in error is sound. and it is sustained by authority. In construing the section now under consideration the Supreme Court has expressly held that as it is not an offense to shoot on or near a public highway, when it is done in defense of per

son or property or on one's own premises, it is incumbent upon the state to negative each one of these things by proof, in order to make out the offense. In delivering the opinion of the court in Rumph v. State, 119 Ga. 123, 45 S. E. 1003, Justice Cobb says: "The line is sometimes very closely marked between what exceptions need be proved and what need not. It is safe to say, however, that whenever the exception constitutes a part of the offense itself, and not merely an exception to a general offense previously defined, it is necessary to allege and prove that the case is not within the exception; or, to state it differently, whenever a statute makes penal an act when committed by a particular class of persons, or when committed under particular circumstances, it must appear that the person accused was within the particular class or committed the act under the particular circumstances." The precise rule which is applicable to accusations under section 508 is laid down in Elkins v. State, 13 Ga. 435: "Where a statute contains provisos and exceptions in distinct clauses, it is not necessary to state in the indictment that the defendant does not come within the exceptions or to negative the provisos which it contains; but, on the contrary, if the exceptions themselves are stated in the enacting clause, it will be necessary to negative them, in order that a description of the crime may, in all respects, correspond with the statute." The decisions in Conyers v. State, 50 Ga. 105, 15 Am. Rep. 686; Newman v. State, 63 Ga. 533; and Isom v. State, 83 Ga. 379, 9 S. E. 1051, are to the same effect. So that we think that the position assumed by the plaintiff in error is correct as a matter of law.

On the other hand, we think that the allegations and evidence fully sustain the conviction of the plaintiff in error when applied to the rule we have stated. The state was obliged to show that the defendant shot a pistol or gun, as charged, within 50 yards of the public highway named in the indictment, between dark and daylight; and in order to show that it was willfully and wantonly done the state was further obliged to prove that such shooting was not in defense of person or property, and that it was not on the defendant's land. There were a number of witnesses introduced, and the testimony of several of them is confused, unsatisfactory, and insufficient. But the jury was authorized to convict, if they had had no other testimony, if they believed the evidence of Alonzo Bivins; and they had the right to disregard all other witnesses and rest their verdict on his testimony alone. He testified that he saw the defendant shoot five times at John Coleman's house. The defendant stood in the public road and shot five times just as fast as he could load and unload his breech-loader. It was between dark and daylight, in Sumter county, Ga. The witness swore, further, that the moon was shining, and that he could see the defendant

plainly, and knew that it was he who did the shooting. The witness says, further, that the only thing that was going on at that time was some fussing and loud talking in Coleman's house, where the dancing was going on. The state proved by this testimony that the shooting was not on the defendant's land, by proving that Ferguson fired in the public road; and, of course, the public road is not his land. It proved that the shooting was not in self-defense or in defense of his property at the time of the shooting, by proving that nothing was being done to Ferguson at the time of the shooting. This showed conclusively that, whether there had been pistol shots there that night or not, Ferguson's shooting was not necessary for his defense. According to Bivins' testimony, when taken with the testimony of some of the other witnesses, the defendant willfully and wantonly fired his gun on land belonging to the public, and without any necessity for defending himself, his brother, or his belongings.

The plaintiff in error insists that a number of witnesses swore that Bivins was in a house and could not see, and therefore his testimony was false. This was a matter entirely for the jury. It is for them to say whether Bivins or the witnesses who contradicted him were impeached, and by their verdict they sustain Bivins. In the brief of state's counsel it is insisted that there was an error in the approved brief of evidence. Of course we cannot consider this statement. The brief of evidence as approved by the trial judge is taken to be true to its very letter.

The plaintiff in error further insists that he is entitled to a new trial upon the ground of newly discovered evidence. We have often marveled at the power of a verdict of guilty in quickening the thirst for an investigation and the faculty of discovery. But, even if the newly discovered evidence submitted in this case were produced before a jury, it could not produce a different result. The testimony of one of the witnesses is to the effect that he heard some unknown man say to the Mancy boys that he tried his best to get one of the Fergusons; and the affidavit of Simpkins is simply cumulative of testimony, already adduced, that there were pistol shots, both preceding and following the report of the shotgun. If there is anything in this testimony it would tend only to set up the fact that the defendant fired in his own defense. And this testimony would be impeaching, not only the state's witnesses, but his own witnesses as well; and it does seem to us that if a new trial is not to be granted upon extraordinary grounds when the newly discovered evidence merely impeaches the witnesses of the opposite party, it should much the less be granted when the newly discovered evidence would impeach one's own witnesses, for whose veracity he vouches. The only purpose of the newly discovered evidence is to establish self

defense in firing the gun. The defendant and his witnesses say he did not fire at all. Motions for new trial upon the extraordinary ground of newly discovered evidence are not favored. If not regarded with suspicion, they should at least be granted with great caution. They should only be granted to avoid palpable injustice, and in order that the judgment set aside may perhaps be replaced by a different finding. We think there was no error in refusing to set aside the verdict and judgment in this case. Judgment affirmed.

SOUTHERN RY. CO. v. SCHLITTLER. (No. 10.)

(Court of Appeals of Georgia. Jan. 11, 1907.) 1. COURTS-COURT OF APPEALS - CONSTITUTIONAL QUESTIONS-CERTIFICATION TO SUPREME COURT.

Where, in a pending case, a question is raised as to the constitutionality of an act of the General Assembly of this state, this court will examine the record and ascertain whether a decision of the constitutional question is necessary to the determination of the case. If we find that the decision of such a question is necessary to the determination of the case, we will so certify to the Supreme Court and abide their instruction in the matter; but, where the contrary appears, we will proceed to decide the case without so certifying.

2. CONSTITUTIONAL LAW-VALIDITY OF STATUTE-NECESSITY OF DETERMINATION.

Where suit is brought for the recovery of an amount for which the defendant would be liable, even in the absence of the statute which he seeks to set aside as being contrary to the Constitution of the United States, as well as for an additional amount as the penalty authorized by such statute, and the trial court awards judgment in favor of the plaintiff only for the sum which he would be authorized to recover in the absence of such a statute, upon a bill of exceptions brought to this court by the defendant, complaining of the judgment and attacking the constitutionality of such a statute, a determination of such constitutional question is neither necessary nor proper.

3. CARRIERS-CARRIAGE OF FREIGHT-OVERCHARGE-LIABILITY.

Independently of the statute of 1889, embodied in Civ. Code 1895, § 2316, a carrier is liable to suit by a shipper for the recovery of an overcharge of freight which such shipper has paid under protest in order to obtain his goods, and which the carrier refused to repay on demand.

[Ed. Note. For cases in point, see Cent. Dig. vol. 9, Carriers, § 915.]

4. SAME-PERSONS ENTITLED TO RECOVER. The recovery in this case is authorized by the evidence.

(Syllabus by the Court.)

Error from City Court of Baxley; Thomas, Judge.

Action by one Schlittler against the Southern Railway Company. From a judgment for plaintiff, defendant brings error. firmed.

Af

De Lacy & Bishop, for plaintiff in error.

POWELL, J. Schlittler brought suit against the railway company for the recov

ery of an overcharge of freight which he had paid to it, under protest, upon the shipment of a car load of horses from Louisville, Ky., to Baxley, Ga.; the shipment not being made by Schlittler personally, but by one Baxley, who, it was alleged and proved, was the agent of Schlittler. He also alleged the demand required by Civ. Code 1895, § 2316, and prayed judgment for the penalty provided by that statute for the failure of the carrier to repay the overcharge. By both plea and demurrer the defendant set up that the section of the Code referred to, as applied to this interstate shipment, is violative of the commerce clause of the Constitution of the United States. The demurrer, which was oral and general, and which went to the whole petition, was overruled by the court; but upon the conclusion of the testimony the judge, who heard the case without the intervention of a jury, rendered a finding that the plaintiff was entitled to recover $30.95 overcharge and the interest thereon, but that he was not entitled to recover the statutory penalty. The defendant excepted, and insists here, in addition to the general ground that the verdict is contrary to the law and the evidence, upon a reversal of the judgment on the ground that the Code section (2316) is unconstitutional, and asks this court to certify the question of the unconstitutionality of the statute to the Supreme Court for their instructions.

1. The constitutional amendment by which this court came into existence provides: "Where, in a case pending in the Court of Appeals, a question is raised as to the construction of a provision of the Constitution of this state, or of the United States, or as to the constitutionality of an act of the General Assembly of this state, and a decision of the question is necessary to the determination of the case, the Court of Appeals shall so certify to the Supreme Court: and thereupon a transcript of the record shall be transmitted to the Supreme Court, which after having afforded the parties an opportunity to be heard thereon, shall instruct the Court of Appeals on the question so certified, and the Court of Appeals shall be bound by the instruction so given." Acts 1906, p. 26. Since the duty of certifying that the decision of the constitutional question is necessary to the determination of the case is placed upon the Court of Appeals, the jurisdiction to decide when such a necessity exists obviously rests with this court. Hence, when such a question is raised, we will examine the record, and, if we find that a decision of a constitutional question is necessarily involved, we will so certify to the Supreme Court; otherwise, we will not. This doctrine is in keeping with the general rule, obtaining in the courts, that it is not proper to examine into the constitutionality of an act of the General Assembly unless it is found necessary to do so in order to determine the case as made.

2, 3. Manifestly the constitutionality of Civ. Code 1895, § 2316, so far as it authorizes a recovery of a penalty for the failure to repay the overcharge within 30 days after written demand, is not involved in the case as it appears in this court; for no judgment has been rendered against the complaining party for any such penalty. But it is insisted that the constitutionality of the statute may be brought into question, for that it provides that the person paying the overcharge may sue for the repayment of the overcharge as well as for the penalty, and that the plaintiff's cause of action, as to the sum which he did recover, is also based solely upon this statute. We are not prepared to assent to this proposition. While the allegations and prayers of the petition are such as to authorize a recovery under the terms of that statute, still they are entirely consistent (except so far as the penalty is concerned) with what would be required in a suit under the law as it stands independently of the statute in question. In fact, the allegations that the payment was made under protest and that the carrier refused to deliver him his property except upon his paying the overcharge seem to indicate clearly that the plaintiff had in mind the general law allowing a recovery in such cases; for such allegations are entirely unnecessary under Civ. Code 1895, § 2313. See, in this connection, Civ. Code 1895, § 3723. The plaintiff's recovery being authorized by common law, as well as by the statute in question, the constitutionality or unconstitutionality of the latter becomes absolutely immaterial.

4. It is insisted that the finding against the defendant is without evidence to support it, because the contract of shipment was not made with Schlittler, but with Baxley. It was alleged in the petition, and proved, that Baxley was Schlittler's agent. The defendant's agent, in presenting the bill for the freight, made it out against Schlittler, and collected the same, as well as the overcharge from him. This was sufficient. Central of Georgia Ry. Co. v. James, 117 Ga. 832, 45 S. E. 223.

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On the trial of a defendant for violating the act of August 7, 1903 (Acts 1903, p. 91), by specific acts set forth in the indictment, the judge did not err in giving the whole of said act in his charge to the jury, although the general words with which the act concludes, and which were intended to embrace all other violations of it, did not apply to the case on trial. Especially is this true when it was not contended that the defendant was guilty, except in the manner charged in the indictment.

2. SAME EVIDENCE.

No error of law was committed, and the verdict was fully warranted by the evidence. (Syllabus by the Court.)

Error from Superior Court, Tift County; Mitchell, Judge.

One Perry was convicted of renting land to a cropper or employé of another, and brings error. Affirmed.

T. R. Perry and C. C. Hall, for plaintiff in error. W. T. Thomas, Sol. Gen., and W. E. Talley, for the State.

HILL, C. J. Judgment affirmed.
POWELL, J., disqualified.

MULHERIN v. PORTER et al. (No. 56.) (Court of Appeals of Georgia. Feb. 6, 1907.) 1. LANDLORD AND TENANT - DISTRESS WARBANT-LEVY.

Although a distress warrant cannot be levied upon property which has already been seized under judicial process, such distress warrant may be placed in the hands of the levying offcer, and, upon a rule to distribute the fund, may assert its lien.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, § 1094.] 2. MARSHALING ASSETS AND SECURITIESGENERAL RULE.

The general rule, obtaining in the marshaling of assets and securities, that if one creditor, by virtue of a lien or other interest, can resort to two funds, and another creditor to only one of them, the former must seek satisfaction out of that fund which the latter cannot touch, is subject to the limitation that such marshaling must not be applied to the detriment of a third person with an equity equal to or greater than that of the creditor seeking to invoke the rule. Beneficiaries of a homestead have such an equity and interest in the homestead estate as to be within the protection of this limitation.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Marshaling Assets and Securities, § 8.] (Syllabus by the Court.)

Error from City Court of Richmond County; Eve, Judge.

Rule by one Mulherin to distribute a fund arising from an execution sale against Frank Harris. Porter and Eve intervene. Judgment for intervenors, and plaintiff brings error. Affirmed.

F. W. Capers, for plaintiff in error. William H. Barrett and Joseph Ganahl, for defendants in error.

POWELL, J. The plaintiff in error, Mulherin, brought a rule to distribute the fund arising from the sale of certain corn which had been levied upon and sold as the property of one Frank Harris under a commonlaw fi. fa. which Mulherin had obtained against him. In response to the rule, Porter and Eve intervened, and made it appear that the corn in question was subject to a lien in their favor for rent which was superior to Mulherin's judgment, and that distress

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