age law, as stated in the caption of the act | mitted on the trial, and the court did not err (Acts 1911, p. 108), is "to promote the public in overruling the motion for a new trial. health, convenience, and welfare."

[Ed. Note.-For other cases, see Drains, Cent. Dig. 88 7-10; Dec. Dig. 15.]

194(5)—
IN-

3. EVIDENCE 508, 522-TRIAL OPINION EVIDENCE-ADMISSIBILITY STRUCTIONS.

Error from Superior Court, Franklin County; J. B. Park, Judge.

Proceedings between Mrs. J. W. Crump and others and T. H. Knox and others, for establishment of drainage district. From a judgment, Mrs. Crump and others bring error. Affirmed.

W. S. McDaniel and Geo. L. Goode, both of Carnesville, for plaintiffs in error. J. H. & Parke Skelton, of Hartwell, H. H. Chandler, of Lavonia, and W. R. Little, of Carnesville, for defendants in error.

WADE, C. J. Judgment affirmed.

The testimony of an expert, as to his opinion as such, is admissible upon any matter, if the opinion given relates to scientific or technical knowledge. McClendon v. State, 7 Ga. App. 784, 68 S. E. 331. "Testimony as to value necessarily involves an opinion, and is not objectionable for that reason, if the witness is shown to be an expert, or states a sufficient basis for testifying on the subject. Civ. Code 1910, 85875; Central Railroad v. Wolff, 74 Ga. 664 (3); Miller v. Luckey, 132 Ga. 581, 64 S. E. 658." Southern Cotton Oil Co. v. Overby, 136 Ga. 69, 72, 70 S. E. 664, 665. See, also, Morrow Transfer Co. v. Robinson, 8 Ga. App. 409, 69 S. E. 317. There is no substantial merit in the sixth ground of the motion for a new trial, which complains of the refusal of the court to give a requested charge as to the value of expert testimony, or in the seventh ground, which complains of the charge given on (Court of Appeals of Georgia. July, 19, 1916.) that subject. The requested charge was not altogether accurate, and was couched in language calculated to convey to the jury an intimation of opinion on the part of the court as to the value of expert testimony. There is no reversible error in the charge actually given on this subject.

[Ed. Note. For other cases, see Evidence, Cent. Dig. 88 2311, 2330; Dec. Dig. 508, 522; Trial, Cent. Dig. § 449; Dec. Dig. 194(5).]

4. ADMISSION OF EVIDENCE-GROUNDS FOR NEW TRIAL.

In the admission of the testimony set out in the ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, and seventeenth grounds of the motion for a new trial, and the documentary report of the board of viewers, as complained of in the eleventh ground, there was no error that requires the grant of a new trial. 5. EXCEPTION TO CHARGE - EXPERT TESTI

MONY.

There is no merit in the exception to the charge set out in the eighteenth ground of the motion for a new trial, when it is taken in connection with the entire charge of the court. The expert testimony complained of clearly referred to the question whether or not the proposed drainage would aid the health of the people of the Broad river drainage district. 6. TRIAL 296(7) INSTRUCTIONS CON

STRUCTION AS A WHOLE.

In view of the instruction elsewhere given by the trial judge, that the burden of proof rested upon the applicants to satisfy the jury, by a preponderance of the testimony, of the truthfulness of their contention, and in view of the further instruction that, if the jury were not satisfied by a preponderance of testimony, they should return a verdict against the applicants, there is no merit in the contention raised by the nineteenth ground of the motion for a new trial, that the court, in the excerpt therein complained of, placed upon the defendants a greater burden than is required by law, by instructing the jury "to return a verdict in favor of that party whose testimony preponderates."

[Ed. Note.-For other cases, see Trial, Cent. Dig. 710; Dec. Dig. 296(7).]

(18 Ga. App. 450) SPILLER-BEALL CO. v. HIRSCH, (No. 7194.)

(Syllabus by the Court.)

1. BILLS AND NOTES 123(2)-CONSTRUCTION-PARTIES.

A note in form, "We promise to pay," etc., "and, whether maker, indorser, or surety, severally agree to pay all costs of collection," reciting that it is "given under the hand and seal of each party," and signed, on one line, "Spiller-Beall Co. [L. S.]," and directly below, on of the corporation, and is not the joint note of the next line, "R. J. Spiller, Pres.," is the note Spiller-Beall Company and R. J. Spiller.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 262, 263, 265, 266; Dec. Dig. 123 (2): Corporations, Cent. Dig. § 1739.]

2. EVIDENCE 471(26)-OPINION EVIDENCE -MATTERS OF FACT OR CONCLUSIONS.

Testimony of the plaintiff, that when the note "was discounted and he got the money, it was my note," was a statement, not a mere conclusion of the witness, but of fact.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 2171; Dec. Dig. 471(26); Witnesses, Cent. Dig. § 883.]

3. BILLS AND NOTES 481-ACTIONS-PRESUMPTIONS-BURDEN OF PROOF.

The plaintiff presented the note to the court as its holder, and the holder of a negotiable thereof, and for value, and "unless the defendnote is presumed to be the bona fide owner ant negatives one or both of these facts, he is shut off from any defense which he might have Etowah v. Messer, 136 Ga. 226, 71 S. E. 148. against the payee." First National Bank of "Where the plaintiff sues as the transferee of a note, and then shows in evidence the note with the transfer regularly written thereon, he does not have the burden of proving the execuhas filed a plea of non est factum as to the intion of the indorsement, unless the defendant Gray v. Oglesby, 9 Ga. App. 356,

dorsement.'
71 S. E. 605.

the defendant to sustain the plea.
Adm'r, v. Kiley, 115 Ga. 420, 41 S. E. 613.
[Ed. Note.-For other cases, see Bills and
Notes, Cent. Dig. §§ 1652-1654, 1656-1660,
1662; Dec. Dig. 493(3).]

5. CORPORATIONS 414(2)-POWERS AND LI-
ABILITIES-REPRESENTATION BY OFFICERS

NOTE.

Gallagher, was sufficiently strong to put him upon notice,
as a reasonably prudent man, of any such de-
fect or failure of consideration. Burch v. Pope,
114 Ga. 334, 40 S. E. 227. "Where the consid-
eration of a negotiable promissory note was cer-
tain services to be performed by the payee to
the maker, failure of performance of the serv-
ices was no defense to an action on the note
brought by a purchaser thereof for value and
before its maturity, though he knew of the con-
sideration, but not of its failure, when he pur-
chased." Wilensky v. Morrison, 122 Ga. 664,
50 S. E. 472. "To a suit on a note, brought by
a purchaser who bought before it was due, the
maker cannot successfully defend unless he
shows that the purchaser had notice of some
that the circumstances were sufficient to 'place
'defect or defense' at the time he bought, or
Hart, 122 Ga. 660, 50 S. E. 471.
a prudent man upon his guard.' Morrison v.

Under the evidence it appears that Spiller was the president of the corporation, and his contract evidenced by the note sued upon binds the corporation. Dobbins v. Pyrolusite Manganese Co., 75 Ga. 450.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. § 1641; Dec. Dig. 414(2).] 6. SEALS 5-FORMAL REQUISITES-SUFFI

CIENCY.

The note sued on in this case was given under the hand and seal of the party bound. "To render a private writing an instrument under seal, according to the Code, it is only necessary that it recite in the body that a seal is used or contemplated, [and] that a scrawl or any other mark intended as a seal be annexed or affixed. A printed [L. S.]' following the signature, is a sufficient mark to satisfy the latter requisite." Stansell v. Corley, 81 Ga. 453, 8 S. E. 868. See, also, 82 Ga. 883, errata; N. Y. Life Ins. Co. v. Rhodes, 4 Ga. App. 25, 60 S. E. 828(4, 5). [Ed. Note. For other cases, see Seals, Cent. Dig. § 8; Dec. Dig. 5.]

7. BILLS AND NOTES 365(1)-BONA FIDE HOLDERS-DEFENSES.

The evidence for the plaintiff made out a prima facie case for admitting in evidence the note sued on, and the court did not err in admitting it. Having been properly allowed in evidence, and being an instrument under seal, the defendant could plead (1) non est factum; (2) gambling, illegal, or immoral consideration; or (3) fraud in its procurement. "A bona fide purchaser for value of a genuine negotiable promissory note, who received the same before maturity and without notice of any defect or defense, is entitled to have a judgment thereon against the makers, although the latter, as against the payee, may have a good defense, unless it be shown that the note was founded on a gaming or immoral and illegal consideration, or there was fraud in the procurement of the note." Jenkins v. Jones, 108 Ga. 556, 34 S. E. 149. A plea of non est factum was filed in this case, and the evidence sufficiently warranted the court in allowing the introduction of the note in evidence, and made out a prima facie case of its execution.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. 88 944, 958; Dec. Dig. 365(1).]

8. BILLS AND

NOTES 343-BONA FIDE HOLDER-DEFENSES-BURDEN OF PROOF.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 853-855, 864, 865; Dec. Dig. 343.]

9. BILLS AND NOTES 341
PURCHASERS-NOTICE.

BONA FIDE

the holder knew what the consideration was, it
While the evidence might have shown that
nowhere shows that he knew that the considera-
did not carry the burden placed upon him by
tion had failed; and therefore the defendant
the law. "The evidence in this case being suffi-
cient to justify a finding that the plaintiff was
such an innocent purchaser of the note in con-
troversy and that the [officer] of the corpora-
tion [who signed the note] had authority to
make
promissory notes in its corpo-
rate name, the verdict against the corporation
was warranted." Jacobs Pharmacy Co. v.
Southern Banking & Trust Co., 97 Ga. 573, 25
sued upon was made to an officer of the corpo-
S. E. 171. Upon the proposition that the note
ration, and that that fact alone was sufficient
to put the holder of the note upon guard, the
very interesting, but bellicose, case of Kaiser v.
United States, 99 Ga. 258, 25 S. E. 620, which
the counsel for defendant in error cites as be-
ing "in a legal forum and not upon the field of
glory," Chief Justice Simmons, said: "The
mere fact that the president of that bank ne-
gotiated the note for his own personal benefit
to a third person, who knew he was such presi-
dent, would not of itself be notice to that per-
son that this action of the president was unau-
thorized or improper. nor would this fact be
sufficient, without more, to put the third per-
son upon inquiry as to the legality or correct-
ness of the president's conduct in the premises."

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. § 829; Dec. Dig. 341.] 10. APPEAL AND ERROR 692(3) — QUESTIONS PRESENTED-REQUISITES OF RECORD

DEFINITENESS.

A plea of failure of consideration was filed The bill of exceptions recites: "At this in this case as against the holder of the paper, point the jury retired, and defendant's counsel, presumably a bona fide holder and for value. in order to complete the record, offered to prove Such a plea cannot be sustained as against such that when the contract of November 1, 1913. a holder, unless the evidence shows that the was entered into, whereby Spiller and Beall holder had notice of such failure of considera- bought the Benjamin-Ozburn Company, it was tion, or that the facts and circumstances were agreed that Beall was to contribute $1,000 sufficient to put a reasonably prudent person on more to the capital of the partnership than guard. While the holder of such a paper may Spiller, and that the $1,000 note was given by know the nature and character of the consid- R. J. Spiller without authority of the corporaeration, it is essential that the failure of consid- tion, and was given to pay that $1,000 to J. A. eration be known to him, or that the facts and Beall, and that the corporation had never sanccircumstances of the case be sufficient to put tioned it. The court declined to admit the him, as a reasonably prudent man, upon notice proof offered," to which ruling the defendant that there was a failure of consideration; and excepted. This assignment is too indefinite and the burden of proof is on the defendant, setting general, and will not be considered by this up such a plea. The plea of failure of consid- court. "The general rule is that, in order for eration in this case does not set up that the the exclusion of oral evidence to be considered holder of the paper, at the time of taking it, as a ground for a new trial, it must appear that had notice of any defect or failure of considera- a pertinent question was asked, that the court tion, and it cannot be said that the evidence refused to allow the answer, and that a state

ment was made to the court at the time, show- court to punish for misdemeanors, as provided ing what the answer would be, and that such in section 1065 of Penal Code 1910, and the testimony was material and would have bene-court did not err in amending its sentence as fited the complaining party." Allen v. Kessler, set forth above, or in overruling the motion in 120 Ga. 319, 47 S. E. 900. The statement con- arrest of judgment, tained in the bill of exceptions does not show the nature and character of the evidence, whether documentary or oral, does not give the name of the witness proposed to be called, and is not such an assignment of error, under the rule above laid down, as would authorize this court to consider the same.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2908, 2909;. Dec. Dig. 692(3).]

11. DIRECTION OF VERDICT APPROved.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 2486, 2487, 2529, 2531; Dec. Dig. 979(1), 993.]

Error from City Court of Carrollton; James Beall, Judge.

W. B. Harris was convicted of selling whisky, and brings error. Affirmed.

Smith & Smith and Leon Hood, all of Carrollton, for plaintiff in error. C. E, Roop,

The court did not err in directing a ver- Sol., of Carrollton, for the State. dict for the plaintiff,

Error from City Court of Atlanta; H. M.

Reid, Judge.

Action by J. N. Hirsch against the SpillerBeall Company. Judgment for plaintiff, and defendant brings error. Affirmed.

BROYLES, J. Judgment affirmed.

ROSS et al. v. STATE.

(18 Ga. App. 503) (No. 7557.)

Walter McElreath, of Atlanta, for plain- (Court of Appeals of Georgia. July 29, 1916.)

tiff in error. Moore & Pomeroy, of Atlanta, for defendant in error.

HODGES, J. Judgment affirmed.

(18 Ga. App. 502)

HARRIS v. STATE. (No. 7555.) (Court of Appeals of Georgia. July 29, 1916.)

(Syllabus by the Court.)

CRIMINAL LAW 979(1), 993-JURISDICTION
-SENTENCE-AMENDMENT.

At the September term, 1915, of the city court of Carrollton, W. B. Harris was convicted of the offense of selling whisky. His motion for a new trial was overruled, and the Court of Appeals affirmed the judgment, and during the March term, 1916, of the city court of Carrollton the remittitur from this court was made the judgment of the trial court, and the judge of that court passed the following sentence, which was the same sentence given the defendant at the September term, 1915, of the court: "Whereupon it is considered, adjudged, and sentenced by the court here that the defendant, W. B. Harris, do work in the chain gang on the public roads, or such other public works as the state or county authorities of Carroll county may employ the chain gang, for and during the term of six months, to take effect from the day of his delivery, and in addition that the defendant, W. B. Harris, do pay a fine of $150, inclusive of all cost of prosecution, or in default thereof that he work in the chain gang on the public roads, or such other public works as the state or county authorities of Carroll county may employ the chain gang, for and during the term of an additional six months, to take effect after the completion of the sentence imposed above; that the defendant is given ten days in which to pay the fine and cost, during which time he is committed to the common jail of Carroll county." At the same term of court at which this sentence was passed, to wit, the March term, 1916, the court amended the sentence by striking out the word "cost" in the following clause therein: "The defendant is given ten days in which to pay the fine and cost" the court stating in its order amending the sentence that the word "cost" was inserted by inadvertence. The defendant made a motion to arrest the judgment and set aside the sentence, and it was overruled. Held, that the sentence did not exceed the authority of the

(Syllabus by the Court.)

1. CRIMINAL LAW 958(1)-NEW TRIALNEWLY DISCOVERED EVIDENCE.

Where alleged newly discovered evidence, presented as the basis of a motion for a new trial, “is that of witnesses, affidavits as to their residence, associates, means of knowledge, character, and credibility must be adduced." Beatty v. State, 16 Ga. App. 571, 85 S. E. 766. Civ. Code 1910, § 6086. No such affidavit appears in the record in this case. "The absence of testimony sufficient to support the credibility of witnesses who purport to furnish newly discovered evidence is fatal to a ground of a motion for a new trial based thereon, if the trial judge sees proper to overrule it." Winder v. State, 88 S. E. 1003.

958(1).]

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2396; Dec. Dig. 2. GENERAL GROUNDS OF MOTION.

The general grounds of the motion are expressly abandoned by the plaintiffs in error, and "the sole ground relied upon by them is that of newly discovered evidence."

Error from City Court of Cartersville; Joe M. Moon, Judge.

Tom Ross and others were convicted of crime, and bring error. Affirmed.

Wm. T. Townsend, of Cartersville, for plaintiffs in error. Watt H. Milner, Sol., of Cartersville, for the State.

Error from Superior Court, De Kalb Coun- a part of the realty. ty; C. W. Smith, Judge.

Proceeding by the State against A. J. Plunkett. Judgment for the State, and defendant brings error. Affirmed.

Munday & Cornwell, of Atlanta, for plain-
tiff in error.
Geo. M. Napier, Sol. Gen., of
Atlanta, for the State.

(18 Ga. App. 492)

BERRY v. SEABOARD AIR LINE RY. (No. 7114.)

(Syllabus by the Court.)

1. CARRIERS 278(2)-PASSENGERS-ACTION FOR CARRYING BEYOND STOPPING PLACEQUESTIONS For Jury.

of, the realty. The only fixtures of a building which are held to be personalty are "trade fixtures," or "domestic or ornamental fixtures." It was contended that the window (Court of Appeals of Georgia. July 29, 1916.) in the instant case was a "trade fixture," and consequently not a part of the realty. We do not think, however, that a show window which is permanent in character, and used not only to attract trade, but as a substantial and permanent part of the building, to keep out the wind, rain, snow, burglars, or other intruders, can be classed as a mere "trade fixture." We are aware that some authorities hold to the contrary, but in our opinion what we have here laid down is the sounder ruling. In this case the show window formed a part of the permanent store front, and was erected by the tenant under a contract with the landlord that the tenant was to put in all improvements, and at the expiration of the lease to turn over to the landlord the property leased, with all improvements put on it; the lessees to make all repairs and to leave the building which they had constructed on the leased land, at the expiration of the lease, or replace the old building in the same condition that it was at the time the lease was made. In our judgment this show window was a part of the realty, and the justice's court had no jurisdiction of the suit for damages to the same.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 2828-2833, 2919, 2920; Dec. Dig. 1093.]

2. VERDICT-SUPPORTED BY EVIDENCE.

The evidence authorizes the verdict, the trial judge approved it, and no error of law was committed.

Error from Superior Court, Wayne County; J. P. Highsmith, Judge.

Proceeding by the State against M. L. Hires. Judgment for the State, and defendant brings error. Affirmed.

W. B. Gibbs and Jas. R. Thomas, both of Jesup, for plaintiff in error. J. H. Thomas, Sol. Gen., of Jesup, for defendant in error.

HODGES, J. Judgment affirmed.

The plaintiff was a passenger on a train of the defendant company, and was negligently carried beyond the station to which he was entitled to be transported under the terms of the ticket surrendered by him to the conductor of the defendant company. There was evidence that when the train stopped at a distance of a half mile or more beyond the station, the conductor offered, in the presence and hearing of the plaintiff, to back the train to the station and to discharge him at that point, and tending to show that thereafter he voluntarily left the train at the point where it stopped. Whether the plaintiff in fact heard the proposal of the conductor to convey him back to his station, which the train had passed, and whether his leaving the train voluntarily thereafter, without making any demand that he be conveyed to his proper destination, or awaiting his conveyance back to that point, amounted to consent on his part to his discharge as a passenger from the train at the point where he actually left the train, and so constituted a waiver of his right to nominal damages at least, because of the negligence of of destination, was a question of fact for the the defendant in carrying him beyond his point jury.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. § 1081; Dec. Dig. 278(2).] 2. VERDICT-SUSTAINED BY EVIDENCE-MOTION FOR NEW TRIAL.

There is no such substantial merit in any of the special grounds of the motion for a new trial as will necessitate the setting aside of the verdict of the jury. There was evidence to support the verdict, and the trial judge did not err in overruling the motion for a new trial.

Error from City Court of Polk County; Jno. K. Davis, Judge.

Action by E. R. Berry against the Seaboard Air Line Railway Company. Judgment for defendant, and plaintiff brings erAffirmed.

ror.

W. W. Mundy and F. A. Irwin, both of Cedartown, for plaintiff in error. Brown & Randolph, of Atlanta, and Ault & Wright, of Cedartown, for defendant in error.

WADE, C. J. Judgment affirmed.

(18 Ga. App. 502) PORTWOOD v. STATE. (No. 7556.) (Court of Appeals of Georgia. July 29, 1916.) (Syllabus by the Court.)

1. CRIMINAL LAW 402(1)-EVIDENCE-BEST AND SECONDARY EVIDENCE.

It was not error to allow a justice of the peace to testify as to the contents of a fi, fa. from his court, after he had testified with reference to the original fi. fa. as follows: "I haven't been able to find it, the execution. I have looked where I usually keep them; everywhere, as far as I had time to look. I looked at the place I usually keep them"-and that he thought it was lost. A proper search was shown to have been made for the original fi. fa., and the