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Perkins & Littlefield vs. Trippe et al.

sides in Burke, another in Columbia, and a third in Glynn county, and the matter in dispute is entirely with them. Nobody in the least interested in this fund, resides in Fulton county. Nor is the fund a fund, in Court, raised by its process, or by its order. It is the simple case of one owing money belonging to a partnership. We do not think Fulton county has such a jurisdiction of this matter, as to authorize an investigation and settlement of the affairs of these partners, in Fulton county. The only jurisdiction it has is to enjoin the rule, pending against Mr. Hillyer; and the proper decree is that these parties shall interplead.

This decree the Judge may make without the intervention of a jury, because on the facts, necessary to make such a decree, there is no dispute: Code, section 4142. A decree that the bill is properly filed, disposes of the case, as to the complainant: Daniel's Chancery Practice, 1764. The manner of the interpleading depends upon the nature of the case. If the dispute is one at law, the Court will direct the pleading accordingly Daniel's Chancery Practice, section 1765.

In analogy to this, we see no reason why the Court of Fulton may not decree the interpleading to be in the county of the residence of one of the parties. Mr. Hillyer stands ready, and proffers to pay this money into Court, or as the Court shall direct. We think he is entitled to be relieved from risk and to have the rule against him enjoined. As appears by the bill and answers, he was employed to collect this money by one of the firm, after its dissolution. After dissolution, one of a firm cannot make a contract, in the firm name. The contract, in this case, was between Mr. Perkins and Hillyer, that Hillyer should collect, in the firm name, this money. There is no pretence that Perkins is insolvent, or that this money will be moved out of the reach of the other partners, in his hands, than it is now, while in Hillyer's hands. Each partner has a right to collect it, for the firm; and, had Hillyer paid it to Perkins, he would have re ceived it for the use of the partnership.

It is, however, only just that all parties should be fully protected, and we are of opinion that Perkins should giv

Davis et al., vs. State of Georgia.

bond, to account for this money to the parties composing the firm. After the dissolution, he, through his agent, has collected it. He is liable to Mr. Hillyer for his fee. For, whilst he, Perkins, has a right to expend the money of the partnership in the collection of its assets, he dealt with Mr. Hillyer as an individual, and on the contract Mr. Hillyer can only look to him.

Upon the whole, therefore, we think the Court below erred in not making a decree on the bill and answers, as there was no dispute on the facts.

Mr. Hillyer ought to be discharged from the litigation, the rule against him ought to be enjoined, the money ought to be directed to be paid to Perkins, on his filing, in the Clerk's office, a bond to account to his partners for this money, and the partners ought to be left to litigate their rights, in the tribunal which has jurisdiction of their dispute; and we will direct, under the power granted to this Court, by section 4219, of the Code. Judgment reversed.

HENRY DAVIS et al., plaintiffs in error, vs. THE STATE OF GEORGIA, defendant in error.

Defendants were indicted for the offence of simple larceny, and charged with having wrongfully and fraudulently taken and carried away a certain "white hog," without alleging the hog to have been of any value: Held, that by the common law, at the time of our statute adopting the same, the value of the property, in an indictment for simple larceny, was required to be alleged and proved on the trial, and that that rule of the common law is still of force in this State, and a failure to allege the value of the property, alleged to have been stolen, in the indictment, is a good ground for arresting the judgment after verdict.

Criminal Pleading. Larceny. Arrest of judgment. Bere Judge POPE. Fulton Superior Court. September Special Term, 1869.

The indictment against Henry Davis and Anna Davis for mple larceny, charged that in said county, on the 4th of

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Davis et al., vs. State of Georgia.

May, 1868, they, "with force and arms did wrongfully and fraudulently take and carry away a certain white hog, weighing one hundred pounds, one year and one month old, said white hog being an altered male hog, the personal goods of one William Graham, with intent then and there to steal the same, contrary to the laws, etc. The defendants pleaded not guilty, and went to trial. The Solicitor General offered evidence of the value of the hog. This was objected to because no value was averred in the indictment. The Court sustained the objection. The defendants were found guilty. Defendants' attorney's moved to arrest the judgment because no value was averred in the indictment, nor proved upon the trial. The Court overruled the motion, holding that: 1st. Since the distinction between grand and petit larceny was abolished, value was immaterial; 2d, value is immaterial when the statute makes the taking of a specific thing, larceny; and 3d, because this objection to the indictment came too late, under section 4546, Irwin's Code. This is assigned as error.

GARTRELL & JACKSON, for plaintiffs in error, said larceny is of personal goods: Irw. Code, sec. 4327, and that imports value; 9th Metcalf, 134; 2 Arch. Crim. Pr. & PL., 363, (note); 14 Gray, 376; 6th John., 103; 3 Hill, 211; Charlton's (Ga.) R., 518; Irwin's Code, secs. 4336, 4340, 4348, inclusive; upon the second point of the decision: 1st Porter (Ala.) R., 118.

E. P. HOWELL, Solicitor General for the State, as to averment of value, cited: 1st Bish. Criminal Pro., 293; 2d, 676, 671; as to larceny of thing specified by statute: 20th Texas R., 780-1; 9th Rich., 428, 438; 1st Bish. Cr. Pro., 315; Irw. Code, sec. 4334; and that the indictment was sufficiently technical: Irwin's Code, sec. 4536; Wood's case, 32d Ga; Sharp's case, 17th Ga. R.; Beck's, 16th; Hester's, 17th.

Thomas vs. The Georgia Railroad and Benking Company.

WARNER, J.

The defendants were indicted for the offense of simple larceny, and charged with having wrongfully and fraudulently taken and carried away a certain "white hog," without alleging the hog to have been of any value. After a verdict of guilty, a motion was made to arrest the judgment on the ground that the hog was not alleged in the indictment to have been of any value, which motion was overruled. By the common law, at the time of our statute adopting it, the value of the property, in an indictment for simple larceny, was required to be alleged and proved on the trial. "Where personal chattels are the subject of an offense, as in larceny, they must be described specifically by the names usually appropriated to them, and the number and value of each species or particular kind of goods, stated." Archibold's Criminal Pleading, 22. On the trial for larceny, evidence must be given that the thing stolen is of some value: Roscoe's Criminal Evidence, 512. This principle of the common law is still of force in this State, and the failure to allege in the indictment the value of the property charged to have been stolen, is a good ground for arresting the judgment after verdict.

Let the judgment of the Court below be reversed.

GEORGE M. THOMAS, plaintiff in error, vs. the GEORGIA RAILROAD & BANKING COMPANY, defendant in errror.

An action was brought by the plaintiff, as an employee of the defendant, alleging that he had been injured and damaged by other employees of the defendant, in carelessly, and negligently, running and pushing a certain hand-car upon the Railroad track of the defendant. On the trial of the case, the plaintiff offered evidence to prove that he was injured in consequence of the defective construction of a certain instrument, called a "Jigger," which was used by the employees of the road, which evidence was objected to by the defendant, on the ground that there was no allegation of that fact in plaintiff's declaration, which objection was overruled by the Court, and the evidence

Thomas vs. The Georgia Railroad and Banking Company.

was admitted. The jury found a verdict for the plaintiff, for the sum of $2,750 00, and a motion was made for a new trial, upon several grounds, which was granted by the Court below. The plaintiff excepted: Held, that it was error in admitting the evidence as to the injury sustained by the plaintiff in consequence of the defective construction of the "Jigger," there being no allegation of that fact in his declaration, but on the contrary, the injury was alleged to have been done by the careless and negligent running and pushing the hand-car on defendant's road, by the employees thereof.

Held, further, that this Court will more reluctantly interfere with the discretion of the Court below, in granting a new trial, when the plaintiff, the only witness in the case, states, that on a former trial thereof, he swore, that there was no negligence, either in New, or Jones, who were with him as employees of the road, when he was hurt; but who stated on the last trial, that he was injured by the carelessness of Mr. New, and Mr. Jones, without giving any explanation as to the conflicting statements made by him, in relation to that material point in the case, on the different trials thereof.

New Trial. Damage on Railroad by co-employee. Party as Witness. Before Judge POPE. DeKalb Superior Court. September Term, 1869.

Thomas averred that on the 20th of August, 1866, his right arm was crushed and broken, his upper lip was cut and split open, and one of his teeth was knocked out, by the servants of said company, carelessly and improperly pushing and running a hand-car, on the track, and striking him therewith, with great force and violence, causing him great suffering, expenses, etc. The defendant pleaded the general issue. On the first trial, plaintiff obtained a verdict for $600 00 and costs, and defendant appealed. The appeal was dismissed, but that dismissal was reversed by this Court. See 38th Ga. R., 222.

Upon the second trial, plaintiff testified that he was thirtyeight years old, had a wife and six children, dependent on. him for a support, the oldest child being fourteen years old: stated that the said injuries were received by him, at said time, that five weeks elapsed before he came out again to work upon the track, and it was two months before he could use his arm well; that he was now farming, and though he could plough and hoe as well as ever, he could not work on

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