Landl. & T. (8th Ed.) § 787, referring to the civil remedy, it is said: "To make an entry forcible, there must be such acts of violence used, or such threats, menaces, or gestures exhibited, as give reason to apprehend personal injury or danger in standing in defense of the possession." This is substantially the definition of our Penal Code, upon which the ruling in the Lewis Case was founded. The definitions of forcible entry and forcible detainer contained in the Penal Code have been treated by this court as being applicable to the civil proceeding. See Harrell v. Holt, 76 Ga. 25; Stuckey v. Carleton, 66 Ga. 215. We think, therefore, that, inasmuch as, under the averments of the petition for certiorari, the uncontradicted evidence showed that the plaintiff was temporarily absent from the house at the time the defendant entered, the verdict rendered was not warranted, and the petition for certiorari should have been sanctioned.

Judgment reversed. All the justices concurring, except LUMPKIN, P. J., absent.

(116 Ga. 621)

ANTOGNOLI et al. v. MILLER. MILLER v. ANTOGNOLI et al. (Supreme Court of Georgia. Dec. 9, 1902.) PLEADING ANSWER-SUFFICIENCY-NEW TRIAL-ACTION ON NOTE.

1. In testing the relevancy and sufficiency of matters of defense set forth in one of several paragraphs of a defendant's answer, the facts alleged in such paragraph are to be considered, not alone, but in the light of the allegations embraced in the other paragraphs of the answer relating to the same defense.

2. There was in the present case no abuse of discretion in ordering another trial, notwithstanding the verdict set aside was the second finding by a jury in favor of the prevailing party.

(Syllabus by the Court.)

Error from superior court, Floyd county; W. M. Henry, Judge.

Action by Clarence L. Miller against Antognoli & Co. Verdict for defendants. From an order granting a new trial, both parties bring error. Affirmed.

Denny & Harris, for plaintiff in Henry Walker, for defendants in error.

error.

SIMMONS, C. J. A petition was filed by Clarence L. Miller, in which the firm of A. M. Antognoli & Co. was named as defendant, and in which a promissory note for $188, and a duebill for $45, both signed in the name of that firm and payable to the plaintiff, were declared upon. An answer was filed by the defendant partnership, in which it set up two defenses: (1) That payment of the note had been made to H. R. Miller, who was the authorized agent of the plaintiff to collect it; and (2) that the plaintiff was only the nominal holder of the note and duebill, H. R. Miller being the real owner thereof, and, as such, having received payment in full of the indebtedness thereby evidenced. In support

of this latter contention the defendant alleged that H. R. Miller had been the proprietor of certain bottling works which were destroyed by fire; that, in order to conceal from his creditors the fact of his ownership thereof, he had conducted business in the name of the plaintiff, and, on receipt of the proceeds arising from a policy of insurance covering the property destroyed by the fire, had loaned a portion of the money so received to defendant, taking from defendant the note and duebill payable to the plaintiff, with a view to giving fresh color to the tradition that he had been the owner of the bottling establishment. The allegations of fact relied on as supporting this line of defense were set forth in the answer in divers paragraphs, each separately numbered. To the answer a demurrer was interposed by the plaintiff, several grounds of which were sustained by the trial judge, and others of which were overruled by him. In those grounds of the demurrer which his honor declined to sustain, separate attacks were directed against designated paragraphs of the answer which were assailed as containing matter which was wholly irrelevant, and which constituted no defense to the action. The case proceeded to a trial on the merits, and resulted in a verdict in favor of the defendant. This was, it appears, the second verdict returned in the case; the first, which was also adverse to the plaintiff, having been set aside by the trial court. He made a motion for a new trial, which was granted, and the defendant sued out a writ of error to this court, in which complaint is made that the trial judge abused his discretion in ordering that the case undergo a still further investigation before a jury. By a cross-bill of exceptions the prevailing party below brings to this court for review the judgment overruling certain grounds of his demurrer to the defendant's answer.

1. The nature of these grounds has already been sufficiently indicated. Doubtless it is true that the allegations of fact set forth in some of the paragraphs of the answer would ont, taken alone, constitute any reason why the plaintiff should not recover; but to consider by itself each of these paragraphs is not the proper test for determining the relevancy and sufficiency of the facts therein pleaded. Regarded as a whole, the answer unquestionably set up a meritorious defense, upon which each of the paragraphs which the court below declined to strike had a direct bearing. That each of them should contain a full and complete defense was unnecessary. Indeed, to present an answer wherein the matters of defense relied on are set forth in orderly and distinct paragraphs, is a practice not only permissible, but one to be encouraged, as conducive to good pleading.

2. A careful scrutiny of the evidence introduced on the last trial of the case has led us to the conclusion that none of the sanctity which ordinarily attaches to a second verdict in favor of the prevailing party can be claim

ed for that now under consideration. In fact, we are by no means clear that the trial judge would have been warranted in giving to it his approval. The defendant partnership signally failed to establish its defense that H. R. Miller, and not the plaintiff, was the real owner of the note and duebill upon which suit was brought. Nor was there any satisfactory evidence going to show that H. R. Miller retained in his possession these papers, and, as the authorized agent of the plaintiff, accepted in his behalf payments thereon. It appears that the firm of A. M. Antognoli & Co. had numerous business dealings with H. R. Miller as an individual, became indebted to him in a considerable amount, and made payments to him of money on divers occasions. In no instance, however, was he directed to apply any payment to the satisfaction of the note and duebill held by the plaintiff. On the contrary, it would seem that there was no understanding between H. R. Miller and the defendant partnership that he was to be regarded as the agent of the plaintiff with respect to the collection of either of these demands. Certain is it that the authority of H. R. Miller to thus act as the agent of the plaintiff was not made to satisfactorily appear. This being so, and there being no proof either that H. R. Miller had the above-mentioned papers in his possession at the time any payment was made to him by A. M. Antognoli & Co., or that any of the money collected by him from that firm ever reached the hands of the plaintiff, a recovery by him would seem to have been demanded. Howard v. Rice, 54 Ga. 52.

Judgment affirmed both as to the main and as to the cross bill of exceptions. All the justices concurring, except LUMPKIN, P. J., absent on account of sickness.

1. "A mere statement in a warehouse receipt that, 'All cotton stored with us fully insured,' will not alone constitute a contract between the parties, requiring the warehouseman to insure the cotton of his customer, and rendering him liable for the value of the same when destroyed by fire."

2. The amendments to the petition were properly disallowed for the reason that each sought to set up a new and distinct cause of action.

3. The evidence authorized the verdict. The showing as to diligence in reference to the alleged newly discovered evidence not being at all satisfactory, and there being no affidavit as to the character and credibility of the alleged new witness, the discretion of the trial judge in refusing to grant a new trial will not be controlled.

(Syllabus by the Court.)

Action by J. W. Atwater against G. W. T. Hannah & Co. Judgment for defendants, and plaintiff brings error. Affirmed.

J. A. Cotten and Worrill & Rigsdill, for plaintiff in error. M. H. Sandwich and J. Y. Allen, for defendants in error.

COBB, J. Atwater sued Hannah & Co., alleging in his petition, in substance, that the defendants were warehousemen, and as such had received for plaintiff six bales of cotton, which they undertook, for a consideration, to safely keep and deliver upon demand, but which they had failed to do, thereby becoming liable to plaintiff in a stated sum. It was further alleged that defendants, in order to induce custom, had inserted in the warehouse receipts the following: "All cotton stored with us fully insured. Acts of Providence excepted." It was averred that this statement was in the receipts given to plaintiff; that it constituted an agreement to insure; that plaintiff relied on it as an agreement to insure, and did not insure his cotton; that the same was destroyed by fire; and that therefore the defendants became liable to him, as insurers, for the value of the cotton. It was also alleged that the loss of the cotton was due to the gross negligence of the defendants; the petition setting out fully what is claimed to constitute the negligence, and laying damages in a stated sum. The trial resulted in a verdict for the defendants, and the case is here upon a bill of exceptions assigning error upon the refusal to grant a new trial, and upon other rulings made pending the trial.

1. The defendants filed a written demurrer upon the ground that there was a misjoinder of causes of action, in that the petition contained two counts, one sounding in contract and the other in tort. There was also an oral motion to dismiss so much of the petition as related to the contract, on the ground that the same set forth no cause of action. The court sustained the oral motion, and struck all the averments of the petition seeking to charge the defendants with liability on account of the statement in the warehouse receipts above referred to. Under the decision in Zorn v. Hannah, 106 Ga. 61, 31 S. E. 797, there was no error in this ruling.

2. The plaintiff offered two amendments to his petition; the first alleging, in substance, that prior to the time he stored his cotton with defendants he had a conversation with one of them, which, with the statement in the warehouse receipt, left him under the impression that his cotton was to be insured by defendants; that he acted on this impression, and did not insure his cotton; that the statements of the defendant with whom he conversed and the statement in the receipts were false and fraudulent, and intended to deceive and did actually deceive him, to his injury.

versation above referred to and the statement

in the warehouse receipt constituted an express contract to insure on the part of the defendants, and, having failed to so insure, they were liable for the value of the cotton. The court refused to allow either of these amendments. There was no error in these rulings. Even if the amendments were otherwise unobjectionable, they were properly disallowed, for the reason that they sought to set up new and distinct causes of action. It is by no means clear that the facts alleged in either amendment constituted a cause of action, but, if they did, the amendments were properly disallowed for the reason just stated.

3. The case went to the jury upon that portion of the petition which alleged liability on the ground that the defendants had not exercised that care which the law required of warehousemen. On this issue the evidence was in conflict, but there was evidence supporting the verdict. That ground of the motion for a new trial seeking a new trial on account of newly discovered evidence did not contain any affidavit as to the character and credibility of the alleged new witness.. See Civ. Code, § 5481. In addition to this, the showing as to diligence was not at all satisfactory. The discretion resting with trial judges in such cases was not by any means abused in the present case.

Judgment affirmed. All the justices concurring, except LUMPKIN, P. J., absent.

(116 Ga. 617)

RAWLS et al. v. STATE. (Supreme Court of Georgia. Dec. 9, 1902.) CRIMINAL LAW-NEW TRIAL.

1. The jury being the judges of the credibility of witnesses, and the testimony upon which the state relied, if credible, being sufficient to authorize a conviction, and the trial judge being satisfied with the verdict, the supreme court will not interfere with the discretion exercised by him in overruling a motion for a new trial based solely upon the general grounds. (Syllabus by the Court.)

Error from superior court, Gordon county; A. W. Fite, Judge.

Mag Rawls and others were convicted of crime, and bring error. Affirmed.

Cantrell & Ramsaur, for plaintiffs in error. Sam P. Maddox, Sol. Gen., for the State.

PER CURIAM. Judgment affirmed.
LUMPKIN, P. J., absent.

(116 Ga. 602)

TRICE v. STATE.

(Supreme Court of Georgia.

Dec. 9, 1902.) LARCENY FROM DWELLING HOUSE

EVIDENCE.

1. An accusation charging a larceny from the dwelling house of a named person is not sustained by proof that he was the owner in fee of a hotel, which he rented to and which was conducted by another, and that the theft

was committed in a room of this hotel which was occupied by a guest of the latter. (Syllabus by the Court.)

Error from city court of Griffin; E. W. Hammond, Judge.

Joe Trice was convicted of larceny from a dwelling house, and brings error. Reversed. Thos. W. Thurman, for plaintiff in error. O. H. P. Slaton, for the State.

SIMMONS, C. J. The plaintiff in error, Joe Trice, was in the court below convicted of the offense of larceny from the house. The accusation under which he was brought to trial charged that he "did, with force and arms, unlawfully enter the dwelling house of J. T. Gray, and, after so entering, did wrongfully and fraudulently take and carry away a certain pistol, in said house stored, of the value of ten dollars, the personal property of T. B. Borom, with intent then and there to steal said pistol." The sole question presented for our determination is whether or not this charge was sustained by the evidence upon which the state relied for a conviction. The person in whom the ownership of the property alleged to have been stolen was laid testified: "I lost a pistol worth twelve or fifteen dollars. It was taken from my room in the Gray House, in the city of Griffin." J. T. Gray, who was alleged to be the owner of the dwelling house wherein the larceny was committed, testified: "The house where the pistol was taken is a hotel known as the 'Gray House,' and is run by Mrs. Barham. I rent the house to her, and board with her. I pay her board, and have no control over the house. Mrs. Barham controls the house." The precise point to be determined, therefore, is, was Gray, rather than Mrs. Barham or T. B. Borom, properly alleged in the accusation to be the owner of the dwelling house to which these witnesses referred? "The meaning of 'ownership' varies with the offense. Burglary is not a disturbance to the fee of the place as realty, but to the habitable security. Therefore, in burglary, 'ownership' means any possession which is rightful as against the burglar." 2 Bish. New Cr. Proc. 137. "In general, possession and occupancy by the alleged owner are all that are required. While he need not own the fee,-he need not even pay rent,-'it is enough that it was his actual dwelling house at the time.' Even a possession unlawful as against the person claiming title, but lawful as against the burglar, will suffice." Id. § 138. "And as a general rule the ownership, so far as burglary is concerned, is in a lessee or other tenant having title, and not in the owner of the fee." 1 Whart. Cr. Law (10th Ed.) § 798. Accordingly an accusation charging that one burglariously entered the dwelling house of a named person is to be understood, not as referring to him as the owner of the fee, but as alleging that he had possession of and control over the house, and occupied it as a

the city court. He also entered the case on the dockets of the city court. The same person was clerk of the superior court and clerk of the city court. When the case was called in the city court, the defendant moved to dismiss it on the ground that the court was without jurisdiction, as the case had been docketed in the superior court, which court alone had jurisdiction of the case. The above facts appearing, the court struck the case from its dockets. The plaintiffs excepted.

The Civil Code (section 4816) declares that, after the counter affidavit has been made in a case like this, the sheriff shall return the proceedings to the next term of the superior court. The act creating the city court of Floyd county declares that the officer shall in such a case return the proceedings to that court, unless the plaintiff otherwise directs. Acts 1882-83, p. 536. Thus it appears that there are two courts in the county of Floyd having jurisdiction of such cases as the present. The Code makes it the duty of the sheriff to return the proceedings to the superior court. The act creating the city court makes the proceedings returnable to that court unless the plaintiff directs otherwise. The Code is mandatory; the act creating the city court is not so strong in expression as to the court to which the proceedings should be returned. The sheriff chose to follow the Code, and returned the proceedings to the clerk of the superior court, and that clerk placed the case on the docket of the superior court, as he had the right to do. When it was thus placed on the docket, the case became one pending in the superior court. According to our views, it must remain in that court to be tried or transmitted to the city court by an order of the judge of the superior court. The fact that the clerk of the superior court was also clerk of the city court did not authorize him to cancel the case on the superior court docket, and transmit it to the city court. While he was one person holding both offices, they were separate and distinct, and he was in himself two separate and distinct officials. He could not act as clerk of the city court in a manner which would affect his actions as clerk of the superior court. Had the offices been held by two different men, neither could have canceled the case from the dockets of one court and transmitted it to the other. The clerk of a court of record has no authority to strike from the docket a case which is properly returned to that court, and entered on the docket. The judge of the court has control of the dockets, and he is the only person authorized to strike cases from the dockets, or to make entries thereon. This case having been properly returned by the sheriff to the superior court, and having been properly entered upon its dockets, it was improper for the clerk to strike it from the docket, and transfer it to another court. When the de

case had been returned to the superior court, he could properly assume that it would remain in that court until the judge had regularly made some disposition of it. The judge of the city court was, therefore, right in striking the case from the dockets of the city court. The effect of his judgment was to strike the case from his dockets, and to leave it pending in the court to which it had been first returned, that court having jurisdiction. Judgment affirmed. All the justices concurring, except LUMPKIN, P. J., absent.

(116 Ga. 736)

PASCHAL v. TURNER et al. (Supreme Court of Georgia. Dec. 11, 1902.) LOST PAPERS-ESTABLISHMENT—APPLICATION FOR HOMESTEAD.

1. The original schedule and plat accompanying a petition to set aside land as a homestead, and for an exemption of personalty, which have been approved by the ordinary, after they have been recorded by the clerk of the superior court as directed by law, are the muniments of title by which the applicant for and the beneficiaries under the homestead' hold the property exempted, and as such are private papers, and when lost or destroyed can be established by the superior court.

(Syllabus by the Court.)

Error from superior court, Putnam county; Jno. C. Hart, Judge.

Application of P. J. Paschal, trustee for his wife and others, against J. S. Turner and others, to establish homestead. Judgment for defendants, and plaintiff brings error. Re versed.

W. T. Davidson, for plaintiff in error. Turner & Preston, for defendants in error.

LITTLE, J. Paschal, as trustee for his wife and minor children, filed an application in the superior court of Putnam county to establish a copy of a schedule and plat, being parts of a homestead proceeding Instituted by Paschal before the ordinary of that county in 1875, for the purpose of having set aside a homestead and exemption of personalty for the benefit of his family, which original schedule and plat it was averred had been lost. To the petition were attached copies of the alleged lost papers. The bill of exceptions recites that on the call of the case in the superior court several persons moved the court to be made parties defendant, which motion the court sustained, and the petitioner excepted, and assigned error on the granting of said motion; but this point seems to have been abandoned by counsel for the plaintiff in error in his brief, as no reference is made to the same, and therefore it will not be considered. Thereafter one of the defendants moved to dismiss the petition on the ground that the court had no jurisdiction to establish the alleged lost papers, and that the papers sought to be established were the records of another court