men, both of whom fled immediately after the shooting. The shooting was done with a shotgun, one shot being fired. It had been raining, and tracks of two men were found near the window, and these tracks were clearly and positively identified by several peculiarities as having been made by the shoes of the defendants, and they led from the house where the shooting occurred directly to the homes of the accused. In the house of one of the accused a doublebarreled gun was found, with one barrel, ap parently recently fired, empty. The accused were seen together going towards the house of the prosecutor about dark with guns, and shortly after the shooting two men were seen walking rapidly from the house where the shooting took place, though not identified as the accused. The accused were also seen near the house about the time of the shooting. Held, in the absence of complaint of any error of law, the verdict of guilty, under this evidence, will not be dis

turbed.

POTTLE, J. [1] The state offered testimony that the accused was given money, went away, and returned with whisky, which he delivered to the state's witness. This made a prima facie case of guilt. Cheatwood v. City of Buchanan, 9 Ga. App. 828, 72 S. E. 284; McGovern v. State, 11 Ga. App. 267, 74 S. E. 1101. Where such a prima facie case is made out, the burden is on the accused to show "how, when, and from whom he obtained the liquor."

[2] If the state relies only upon the prima facie case then made, and the evidence for the accused demands a finding that he was acting solely as the buyer's agent, and was not otherwise interested in the sale, his conviction is not authorized. Allen v. State, 11 Ga. App. 245, 75 S. E. 11. But if the evidence or the prisoner's statement justifies the inference that the defense is a mere subterfuge, and the accused was the seller, or interested therein otherwise than as agent Tom Morris and another were convicted of for the buyer, he can be convicted. Cheatshooting a person, and they bring error. Af-wood v. Buchanan, supra; Whipple v. State,

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 543-552; Dec. Dig. § 257.*]

Error from Superior Court, Columbia County; H. C. Hammond, Judge.

firmed.

J. B. Burnside and A. K. Forney, both of Thomson, for plaintiffs in error. A. L. Franklin, Sol. Gen., of Augusta, and John M. Graham, of Atlanta, for the State.

HILL, C. J. Judgment affirmed.

(12 Ga. App. 809)

FLETCHER v. STATE. (No. 4,891.) (Court of Appeals of Georgia. June 10, 1913.)

(Syllabus by the Court.)

1. INTOXICATING LIQUORS (§ 224*)-PROSECUTION-BURDEN OF PROof.

"On the trial of an accusation of selling intoxicating liquors, where the defense relied upon is that the accused had no interest whatever in the sale, but acted therein simply as agent for the purchaser, the burden is on the accused to prove how, when, and from whom he obtained the liquor; and until this is done to the satisfaction of the jury the burden is not

10 Ga. App. 214, 73 S. E. 27.

One Carnes testified that he and the accused went to a place known as "Happy Flat, down back of the old Glover foundry, to a negro house," and that the accused bought the whisky from this negro. The negro's name is not given, nor is he otherwise identified. The accused said in his statement that he and Carnes went up the railroad track and met a negro, who said he had some whisky with him, and that the purchase was made from the negro then and there.

It may be doubted whether Carnes' testimony, standing alone, would have demanded an acquittal, for he failed either to tell the negro's name or to give any reason for failing to do so. But, when his evidence is considered in the light of the statement, the jury were well warranted in finding that the defense was a mere subterfuge. There was too much discrepancy between the testimony [Ed. Note.-For other cases, see Intoxicating of the defendant's witness and his own Liquors, Cent. Dig. 88 275-281; Dec. Dig. § statement-enough to warrant the jury in 224.*] disregarding both, and convicting the ac2. INTOXICATING LIQUORS (§ 236*)-PROSECU-cused upon the prima facie case made by the TION-SUFFICIENCY OF EVIDENCE.

carried."

state.

Judgment affirmed.

Where such a defense is relied on, the jury are authorized to convict, if the evidence warrants the inference that the defense is a mere subterfuge, and that the accused was himself the seller, or interested in the sale otherwise WALKER et al. v. ROYSTER GUANO CO. than as agent for the purchaser. (No. 4,809.)

(12 Ga. App. 804)

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. (Court of Appeals of Georgia. June 10, 1913.) 236.*]

(Syllabus by the Court.)

Error from Superior Court, Cobb County; JUSTICES OF THE PEACE (§ 205*)—CERTIORARI H. L. Patterson, Judge. -ANSWER-CONSTRUCTION.

Will Fletcher was convicted of violating the prohibition law, and he brings error. Affirmed.

Mozley & Moss, of Marietta, for plaintiff in error. Herbert Clay, Sol. Gen., of Marietta, for the State.

There was no error in overruling the cer

tiorari.

[Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. §§ 793-799; Dec. Dig. § 205.*]

Error from Superior Court, Jefferson County; B. T. Rawlings, Judge.

Action by the Royster Guano Company | provisions of section 5640 of the Civil Code of against F. M. Walker and others. Judgment 1910. for plaintiff. From a denial of certiorari, defendants bring error. Affirmed.

R. N. Hardeman, of Louisville, for plaintiffs in error. M. C. Barwick, of Augusta, for defendant in error.

RUSSELL, J. The case is one of a suit on a forthcoming bond. The only point insisted upon in the brief of counsel for the plaintiffs in error (the defendants) is that the record nowhere shows that the plaintiff had obtained a judgment in the claim case

Cent. Dig. § 793; Dec. Dig. § 260.*]
[Ed. Note.-For other cases, see Pleading,

3. BILLS AND NOTES ( 493*)-BurdEN OF
PROOF-DEFENSES.

In a suit upon a promissory note purporting to have been signed by the defendant, who was a married woman, the burden is upon her to establish the truth of special pleas that the note was given in settlement of a debt of her husband, and that the consideration of the note had wholly failed. Where the evidence is conflicting upon the issues thus raised, it is prejudicial error to charge that, if the evidence in the case is equally balanced, the jury should find for the defendant.

Notes, Cent. Dig. §§ 1652-1662; Dec. Dig. § [Ed. Note.-For other cases, see Bills and 493.*1

Error from City Court of Cairo; J. R. Singletary, Judge.

Action by T. S. Copeland against Cora McClelland. Judgment for defendant, and plaintiff brings error. Reversed.

R. C. Bell and J. S. Weathers, both of Cairo, for plaintiff in error. J. Q. Smith, of Cairo, for defendant in error.

finding the property subject. Of course, the plaintiff would not be entitled to a judgment upon the forthcoming bond unless he had, precedent thereto, obtained a judgment finding the property subject. The fact that counsel for plaintiffs in error stakes his case upon this point, and challenges the record to support his contention, is due merely to a typographical error in the record, for it appears, from the answer of the magistrate, that there was a judgment finding the property subject, anterior to the judgment of which complaint is here made. In the anPOTTLE, J. Suit was brought against swer it appears that "the transcript intro- the defendant, who was a married woman, duced should a verdict and judgment find- upon a promissory note for $240 principal, ing the property subject the objection and with a credit thereon of $55. The note purmy overruling it are true." It is very ap- ported to have been signed by the defendparent, from the exhibits attached to the pe-ant with her mark. The defendant pleaded tition for certiorari, that this sentence should read: "The transcript introduced showed a verdict and judgment finding the property subject. The objection [alluding to the pe tition] and my overruling it are true." The transcript from the justice's docket in the record does in fact show a verdict and judgment in full; consequently the judge of the superior court did not err in overruling the certiorari for the reason urged by plaintiff's in error, nor is the judgment erroneous for any other reason disclosed by the record. Judgment affirmed.

non est factum; that she was not indebted to the plaintiff in any sum; and that she borrowed from him $50 and gave him her note for that amount, which she had paid in full, both principal and interest. By amendment the defendant alleged that prior to the execution of the note her husband agreed to trade horses with the plaintiff and give him $150 boot, which agreement was unknown to her, and that two or three weeks after the agreement was entered into and when she went to give the plaintiff her note for the $50 which she had borrowed from him the plaintiff included in the note, without her knowledge or consent, the $150 due by her husband; that she is an ignorant woman and can neither read nor write. further pleaded that the consideration of the note had failed because the horse received by her husband was totally worthless, that the plaintiff took it back and let her husband have another, which was as worthless as the first one, and that the plaintiff finally took the second one back without returning the one the plaintiff had received from her husband, or allowing him anything therefor. The defendant has never owed

She

2. PLEADING (§ 260*)-AMENDMENT-AFFIDA- the plaintiff but $50, which she borrowed

VIT-SUFFICIENCY.

An affidavit attached to an amendment to an answer, in which the affiant avers that he did not discover the new facts set forth in the amendment until after the original answer was filed, and that if he had known of such facts at that time he would have pleaded them, is a substantial compliance with the

from him and which she has paid. Annexed to this amendment was an affidavit verifying the truth of the allegations in the amendment, and reciting that the defendant did not know of the defense at the time the original answer was filed; that she knew

that she had borrowed $50 from the plaintiff, ed to him that she wanted to borrow $50 and and had given her note for that amount and paid it, but did not know how the note came to be for $240, until she recently found out that the plaintiff had included in the note the amount her husband agreed to pay him as boot in the horse trade. Deponent further says that, if she had known of these facts at the time of filing her original answer, she would have pleaded them. The plaintiff demurred to the amendment on the ground that it set forth no defense; that it was not alleged that the plaintiff knew that the debt was a debt of the defendant's husband, and it was not denied that the note was read over to her. The amendment was further demurred to on the ground that no affidavit was attached thereto to the effect | that in the original plea the new facts set out in the amendment were not omitted for the purpose of delay, and that the amendment was not offered for delay.

trade the old mule for another mule which he had and which her husband had seen and selected; that she stated that the old mule was hers, and he dealt with her, and never knew her husband in the transaction, except that he was with her when the papers were signed and selected the mule which was wanted; that there was nothing the matter with the mule which he let her have; and that Johnson was not his agent to sell or trade any mules for him. Johnson testified that he was not working for the plaintiff at the time the transaction with the defendant took place, and that he was never the plaintiff's agent to sell or trade any horses or mules; that the mule that the defendant got from the plaintiff was a good mule; that he (Johnson) afterwards traded with the defendant for this mule; that he and the plaintiff and the defendant's husband went to an attorney's office to find out if it would be all right to trade for the mule while the plaintiff had a mortgage on it; that he (Johnson) then traded an old white mule for the one that the plaintiff let the defendant have; that afterwards the defendant's husband got dissatisfied and told him (Johnson) that he could have the white mule, and he (Johnson) thereupon went and got the mule, but did not represent the plaintiff in the transaction. The defendant, in rebuttal, testified that she had never traded mules with the plaintiff, had never represented to the plaintiff that the first mule traded to him was hers, and that she had never at any time had a conversation with the plaintiff in regard to any mule or mule transaction. The jury found for the defendant, and the plaintiff's motion for a new trial was overruled.

The demurrer was overruled and the plaintiff excepted. The plaintiff introduced in evidence the note sued on, together with a mortgage given to secure it. This mortgage was signed by both the plaintiff and her husband; it being recited therein that the husband signed the mortgage for the purpose of relinquishing whatever interest he had in the land described in the mortgage. The defendant testified that she had never bought a mule from the plaintiff and had never owed him but $50, and had paid him that debt; that she did not know anything about any other transaction, and never had any transaction with the plaintiff except the borrowing of the $50; that she did not know anything about the $240 note until after the suit was brought, when she learned that her husband had swapped mules with the plaintiff and agreed to pay him $150 boot which was included in the note; that the note and mortgage were not read over to her before she signed them; that some time after the note and the mortgage were executed the plaintiff and one Johnson came to her home and left with her husband the mule described in the mortgage; that the mule had some kind of disease, and her husband exchanged it with the plaintiff for another mule which was no better able to work than the first one, and the plaintiff finally took back the last mule without returning the one he had received from her husband or allowing him anything therefor; that Johnson came after the last mule, acting as plaintiff's agent in the matter; that she can neither read nor write. The defendant's husband testified substantially to the same facts in reference to the mule trade, and that Johnson came and got the last mule which the plaintiff had turned over to him (the defendant's husband), and the latter never got a mule or anything else in exchange. The plaintiff testified that both the defendant and her husband came to him before the note

[1] 1. The amendment to the defendant's answer set forth a good defense to the action. It was, in substance, that the defendant was not indebted to the plaintiff, that, if any debt was owed, it was by her husband, and that her husband was not indebted, for the reason that there had been a total failure of consideration. The plaintiff contended that the plea was bad because it failed to allege that the plaintiff knew that it was the debt of her husband, and not that of the wife. Temples v. Equitable Mortgage Co., 100 Ga. 503, 28 S. E. 232, 62 Am. St. Rep. 326. It sufficiently appears, however, from the plea that the plaintiff knew that the debt was the husband's, and without the knowledge or consent of the wife included it in the note which she signed. The principle announced in the Temples Case, supra, is only applicable when the wife misleads her creditor into a transaction concerning her separate estate, and he deals with her in good faith, without knowledge that she is attempting to pay her husband's debts. No such transaction as this is disclosed by the answer in the present case, and the principle of that decision is not ap

[2] 2. "Where the defendant is present at the trial, the court cannot permit a plea setting up new facts to be filed without requiring an affidavit that the original plea did not omit such new facts for the purpose of delay, and that the amendment is not now offered for delay." The Code provides that, when "the circumstances of the case or substantial justice between the parties require it," the court has the power to allow the amendment without the affidavit. Civil Code, § 5640. The court's discretion, however, must be based upon facts justifying its exercise. If the defendant is present in court and no reason appears why he cannot make the oath, it is an abuse of discretion to relieve him from so doing. Bass Dry Goods Co. v. Granite City Mfg. Co., 119 Ga. 124, 45 S. E. 980. The affidavit in the present case was, however, a substantial compliance with the section of the Code. It is not essential that the exact language of the section should be used. In the affidavit attached to the answer in the present case the defendant averred that she learned of the new facts set up in the amendment after the filing of the original answer, and, if she had known them at that time, she would have pleaded them. This is sufficient to show that the new facts were not admitted nor the amendment offered for the purpose of delay.

The

required a finding that the plaintiff got the white mule and gave the defendant nothing in exchange therefor, or that Johnson was authorized by the plaintiff to take the white mule, the verdict for the defendant would have been demanded. But this does not appear. According to the testimony of the plaintiff and Johnson, the last trade was a transaction between Johnson and the defendant with which the plaintiff had no concern. The defendant denied all this, and the verdict in her favor was fully supported by the evidence; but, since it was not demanded, the instruction above referred to requires a new trial. The burden was on the defendant to establish the truth of her pleas. If the evidence on the issues thus raised was equally balanced, the plaintiff was entitled to a verdict upon the prima facie case which he had made by proof of the execution of the note. The effect of the instruction was that, if the jury were in doubt whether to believe the plaintiff or the defendant, they should find for the defendant, whereas the correct rule was that, if the jury were unable to reach a conclusion as to which one of the parties was telling the truth, they should find for the plaintiff, because in that event the defendant would have failed to establish her pleas. For this error alone a new trial is ordered.

Judgment reversed.

(12 Ga. App. 803)

[3] 3. The following charge of the court is assigned as error: "If, after hearing all of the evidence in this case, you find that the evidence is equally balanced between the plaintiff and the defendant, then you should find in favor of the defendant." This charge was erroneous as applied to the pleadings and the evidence in the present case. burden was on the plaintiff to prove the 1. No MATERIAL Error. execution of the note, and this he did by the testimony of a witness that he saw the defendant sign the note. The defendant made no attempt to sustain her plea of non est factum. The plaintiff having thus made out a prima facie case, the burden was on the defendant to sustain by proof her special defenses that the note was given for a debt of her husband, and that the consideration had failed. On these two issues the testimony was directly conflicting. The plaintiff testified that the defendant represented to him that the mule which the plaintiff received was the property of the defendant, and that she desired to exchange it for another mule and pay the plaintiff $150 as boot; that she borrowed $50 from the plaintiff, and these two sums made the principal amount due on the note. The plaintiff further testified that the mule sold to the defendant was sound in every way, and that Johnson was not his agent and had no authority to take back from the defendant the white mule which she took in exchange for the one which she had received from the plaintiff. Of course, if the evidence had

HALL v. C. J. ROEHR & CO. (No. 4,807.) (Court of Appeals of Georgia. June 10, 1913.) (Syllabus by the Court.)

No material error of law was committed, and the judgment is affirmed on condition.

(Additional Syllabus by Editorial Staff.) 2. BROKERS (§ 15*)-TERMS OF SALE.

Where a jeweler is authorized to sell rings, the possession of which is retained by the prin cipal, a sale for cash is implied in the absence of evidence of authority to grant a credit.

[Ed. Note.-For other cases, see Brokers, Cent. Dig. § 14; Dec. Dig. § 15.*] 3. TROVER AND CONVERSION ( 11*)-BONA

FIDE PURCHASERS "CONVERSION."

Where one purchases personal property with knowledge that the seller has no title, his retention of the property, as against the true owner, is a conversion.

[Ed. Note.-For other cases, see Trover and Conversion, Cent. Dig. §§ 95-98; Dec. Dig. § 11.*

For other definitions, see Words and Phrases, vol. 2, pp. 1562–1570; vol. 8, p. 7618.]

4. APPEAL AND ERROR (§ 1050*)-HARMLESS ERROR-ADMISSION OF EVIDENCE.

is

The admission of hearsay evidence, which immaterial to the issues of the case, is harm

less error.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4160; Dec. Dig. § 1050.*]

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Todomes

5. APPEAL ANd Error (§ 1151*)—AffirmanCE | verdict against Hall was practically de-DIRECTION OF REMITTITUR. manded.

Error from City Court of Bainbridge; H. the case, which is that the judgment will be B. Spooner, Judge.

POTTLE, J. This was an action for damages for false imprisonment. The plaintiff testified that certain of the defendants, with[4] The trial judge admitted some hearsay out authority from him, and without institutevidence, but it was harmless, as it did not ing condemnation proceedings in behalf of affect the material issues in the case. A a telephone company which they represent