rested, had possession of these liquors, and they were delivered by another, at the request of the officer. Even if the testimony was sufficient to raise the presumption that the accused was dealing with these particular liquors on his own account and for himself, he certainly, while the liquors were in his custody and control, could have repented of his purpose, and refused to deliver the same, and in that event the crime of selling would not have been completed. Besides this, the statement of the defendant when arrested, introduced in evidence by the state, was to the effect that he had bought these liquors for certain parties, whose names appeared on the packages, and there is nothing in the record to indicate that there was not a lawful vendor of liquors in Barnett as well as in Sharon, where he procured the goods that were delivered by him. We think, therefore, that the decisions relied upon by state's counsel in Paschal v. State, 84 Ga. 326, 10 S. E. 821, Grant v. State, 87 Ga. 265, 13 S. E. 554, and in White v. State, 93 Ga. 47, 19 S. E. 49, are not in point. The effect of those decisions is to declare, as the law of presumptive evidence, that one who receives money and delivers whisky therefor may be treated as the seller, no other person filling that character in the transaction being pointed out by the evidence; but in this case, wherever it was shown the accused received money and delivered whisky therefor, evidence for the state itself showed a person other than the defendant filled the character of vendor. In the case of White v. State, 93 Ga. 47, 19 S. E. 49, it is decided that "if the accused, acting bona fide as the agent of another, bought liquor for the latter with the latter's money, and delivered it to the person for whom it was bought, these facts did not constitute a sale of liquor by the accused, whether the person from whom he bought was legally authorized to sell or not." It is true there may be suspicious circumstances connected with this particular transaction, growing out of the number of orders and requests which the accused would periodically receive for the purchase of liquors, but the state itself introduced testimony explaining the transaction in such a way as to fail to make out a case against this accused, and she commends the credibility of her own witnesses by their introduction upon the stand. We think, therefore, that the petition should have been sustained, upon the ground that the verdict was contrary to the evidence. Judgment reversed. All the justices concurring.

(108 Ga. 774)

VARDEMAN v. STATE. (Supreme Court of Georgia. April 20, 1899.) INTOXICATING LIQUORS-SALE BY DRUGGISTEVIDENCE.

1. It is, in a county wherein the "local option liquor law" of this state is of force, a misdemeanor to sell rye whisky, notwithstanding the

seller may have been a licensed druggist, and may have made the sale under a physician's prescription. The last proviso in section 1549 of the Political Code, authorizing the sale by such a druggist of "pure alcohol" for medicinal and other designated purposes, does not apply to a sale of the kind above indicated.

2. Irrespective of other questions presented by the record, the evidence in this case demanded the verdict rendered by the jury in the county court, and there was no error in overruling the certiorari.

(Syllabus by the Court.)

Error from superior court, Hancock county; S. Reese, Judge.

George Vardeman was convicted of an illegal sale of liquor, and brings error. Affirmed.

T. L. Reese and Hunt & Merritt, for plaintiff in error. R. H. Lewis, Sol. Gen., and Harrison & Bryan, for the State.

PER CURIAM. Judgment affirmed.

(108 Ga. 784) GEORGIA N. RY. CO. v. TIFTON, T. & G. RY. CO.

(Supreme Court of Georgia. June 14, 1899.) INTERLOCUTORY INJUNCTION-TIME OF HEARING-POWER TO CHANGE-CONTINU

ANCE-APPEAL-REVIEW.

1. Though a judge, after setting a day for an interlocutory hearing upon an application for an injunction, had not, before the arrival of that day, any power to change the time of the hearing to a later day without the consent of all the parties at interest, yet where, acting upon the consent of some of the attorneys representing both sides, he signed an order postponing the hearing, upon the validity of which counsel for the defendant in good faith relied and acted, it was not proper for the judge, upon learning that other attorneys of the plaintiffs had not agreed to this order, to revoke the same and direct that the hearing take place upon a day so much earlier than that named in the order of postponement that the defendant's attorneys did not have a fair and reasonable time and opportunity for preparing their defense. Accordingly, when the day so appointed for the hearing arrived, and these attorneys showed that they were not ready, and that their failure to be prepared for the hearing was due to the fact that they had, by the action of the judge and of opposing counsel, been misled into believing that the hearing would be postponed as originally agreed upon, and in consequence had gone to meet other and pressing engagements, it was erroneous to overrule their motion for a postponement, made for the purpose of obtaining the proper time for preparation,-the more especially when the case was one of considerable importance, involving complicated facts and intricate legal questions.

2. Inasmuch as the court erred in overruling the motion to postpone, the subsequent proceedings were irregular, and the judgment excepted to was nugatory.

3. It follows from the foregoing that the order to which exception is taken, striking a portion of the defendant's answer, should be rescinded, and that another day for the hearing should be appointed, with opportunity to both sides to perfect their pleadings and procure and present evidence.

(Syllabus by the Court.)

Error from superior court, Brooks county; W. N. Spence, Judge.

Bill by the Tifton, Thomasville & Gulf Railway Company against the Georgia Northern Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

J. W. Walters and W. S. Humphreys, for plaintiff in error. Hansell & Merrill, Hill, Harris & Birch, and Payne & Tye, for defendant in error.

PER CURIAM. Judgment reversed. All the justices concurring, except FISH, J., disqualified.

(107 Ga. 500)

ANDERSON v. SOUTHERN RY. CO. (Supreme Court of Georgia. June 14, 1899.) EVIDENCE-CHARACTER OF WITNESS-FAILURE ΤΟ PRODUCE-INSTRUCTIONS-INJURY TO PERSON ON TRAIN-TORTS OF EMPLOYÉASSIGNMENT OF ERRORS.

1. Until the adverse party attacks the credibility of a witness, either for bad character or because of contradictory statements, the party calling him cannot introduce evidence in support of his character for veracity. A mere conflict between the testimony of a witness and that of others who have testified on the opposite side will not authorize the admission of evidence to sustain the credibility of such witness. (a) The character of the defendant's witness for veracity was not put in issue by an allegation in the plaintiff's petition, and testimony introduced in support thereof, to the effect that such witness, as agent of the defendant, committed an assault which resulted in the death of the person for whose homicide the plaintiff sued.

2. Where the petition in an action against a railway company for a homicide alleged that a given person got upon the defendant's train in company with the decedent, and on the trial such person was sworn and called to the witness stand by the plaintiff, but withdrawn by him without being examined, and there was nothing to show that he was in any way under the power or control of the plaintiff, it was error to charge that "it is a rule of law on the subject of evidence, that where a party has evidence in his power, and within his reach, by which he may repel a claim or charge against him, and omits to produce it, or, having some certain and satisfactory evidence in his power, relies on that which is of a weaker or inferior nature, a presumption arises that the charge or claim is well founded, but this presumption may be rebutted."

3. If either of the contentions of the plaintiff as to the cause of the death of his intestate's son was well founded, the defendant was liable, whether the decedent was rightfully or wrongfully on its train. It was therefore not error to reject, as irrelevant, testimony tending to show that he was rightfully on the train.

4. A general assignment of error upon a designated portion of the judge's charge will be considered for the purpose of ascertaining wheth er or not the particular language thus complained of states a correct abstract principle of law. (a) If it does, then the investigation here must end; for, in the absence of a specific assignment of error, this court will not inquire whether the words excepted to are or are not adjusted to the issues and facts of the case. (b) If an instruction, excepted to in general terms, be erroneous because it is not a correct or accurate statement of the law, then, as all error is presumably prejudicial, the record will be examined for the purpose of ascertaining whether or not the party complaining has really been injured by the giving of such instruction. (c) When a portion of a charge, which is complained of generally, con

tains several distinct propositions, and one or more of the same is correct in the abstract, then the general assignment of error is not good, and will not be further considered, because it, in effect, improperly alleges that all of such portion is erroneous, and does not show to which of the propositions-the correct or the erroneous-it is intended to take exception.

(Syllabus by the Court.)

Error from superior court, Bibb county; W. H. Felton, Jr., Judge.

Action by James L. Anderson against the Southern Railway Company. Judgment for defendant, and plaintiff brings error. Reversed.

Steed & Wimberly and Guerry & Hall, for plaintiff in error. Dessau, Bartlett & Ellis and Hill, Harris & Birch, for defendant in error.

FISH, J. 1. Complaint was made in the motion for a new trial of the admission of testimony upon the trial to sustain the credibility of one of the witnesses for the defendant, whose character, the plaintiff contended, had not been assailed. Several witnesses testified, in behalf of the plaintiff, that the death of Andrew Wright, for whose homicide the suit was brought, was caused by McCrary, a conductor on defendant's train, willfully knocking him off the train with a piece of coal, and causing him to fall between the cars and to be run over and killed. McCrary, who was introduced as a witness by the defendant, testified, in substance, that he did not knock Wright off the train, nor throw any coal at him, nor use any violence whatever towards him. The court then permitted the defendant to prove by a number of witnesses that they knew McCrary, and knew his general character, and that it was good, and from that character they would believe him on his oath. This testimony was admitted over plaintiff's objection that it was irrelevant and illegal, in that no effort had been made in any manner to impeach McCrary. We think the court erred in allowing this evidence in support of McCrary's character for veracity to go to the jury. While it is true that his testimony was in direct conflict with that of several witnesses who testified for the plaintiff, yet it is well settled that a mere conflict between the testimony of witnesses for the respective parties to an action will not authorize the admission of evidence as to the credibility of such witnesses. See Hamilton v. Conyers, 28 Ga. 277; Insurance Co. v. Sheppard, 85 Ga. 751, 12 S. E. 18 (5); Miller v. Railroad Co., 93 Ga. 480, 21 S. E. 52; Bell v. State, 100 Ga. 78, 27 S. E. 669; 5 Am. & Eng. Enc. Law (2d Ed.) 854. It was argued by counsel for the defendant that the allegations of the petition and the testimony of plaintiff's witnesses put the character of McCrary in issue, by charging him with the commission of a serious crime, -viz. with willfully and wantonly knocking Wright off defendant's train, thereby caus

ing his death,--and that, as the plaintiff contended that McCrary represented the defendant in what he did, the defendant should be permitted to establish the general character of its agent for truth and veracity. To sustain this contention, counsel cite Civ. Code, § 5159; McNabb v. Lockhart, 18 Ga. 495; Bank v. Neel, 74 Ga. 576; Du Bose v. Du Bose, 75 Ga. 753; Falkner v. Behr, Id. 671; Railway Co. v. Christian, 97 Ga. 56, 25 S. E. 411; Association v. Farley, 102 Ga. 720, 29 S. E. 615. We do not think these authorities support the contention of defendant's counsel. Upon examination it will be seen that they are simply to the effect that, when the nature of the action involves a particular trait of character of a party thereto, evidence in reference to such trait is admissible. This is in accord with the general rule that evidence of character, when admissible, should be so restricted as to have some reference or analogy to the trait involved. 5 Am. & Eng. Enc. Law (2d Ed.) 856, and cases cited. If in the present case the witness McCrary be treated as the defendant, then the evidence to support his general character for truth and veracity was not admissible, because that particular trait of his character was not involved in the assault which the plaintiff contended he made upon Wright.

2. One of the grounds of the motion was that the court erred in giving in charge, at the request of defendant's counsel, section 5163 of the Civil Code, which declares that "where a party has evidence in his power and within his reach, by which he may repel a claim or charge against him, and omits to produce it, or having more certain and satisfactory evidence in his power, relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim is well founded; but this presumption may be rebutted." The error assigned is that there was no evidence to justify this charge. To this ground the court attached the following explanatory note: "With reference to the statement of facts as to the nineteenth ground, my recollection of the contention of counsel is as follows: Plaintiff's declaration alleged that Andrew Wright, in company with John Reese and others, got upon the coal car in the train of defendant company on the occasion when Andrew Wright was killed; and, on the trial of the case, Reese was sworn as a witness for the plaintiff, and was put upon the stand by plaintiff's counsel with the apparent intention of introducing him as a witness, and, after consultation among counsel for the plaintiff, they stated that they would withdraw the witness, and not introduce his testimony. Counsel for defendant contended in their argument before the jury that the evidence for the plaintiff showed, and the petition alleged, that Reese was with Andrew Wright at the time, and that, if he knew facts that were materially beneficial

to the plaintiff's case, they should have introduced him as a witness, and that not having introduced him as a witness authorized an inference that his testimony would not benefit the plaintiff's case. Counsel for defendant read from the Code the principle invoked, and requested a charge upon the same, which was given. The court did not undertake, as will be seen by reference to the charge, to apply this principle of law to either side; simply giving it as a principle of law, that the jury might consider the same in connection with the testimony in the case." We do not think the facts of the case authorized the charge. There is nothing in the record showing that Reese, or any of the other persons who got upon the defendant's train with Wright, was under the power or control of the plaintiff; nor does it affirmatively appear that Reese, or any of them, knew the facts of the homicide. The plaintiff introduced several witnesses who testified that they saw McCrary, the conductor, knock Wright off the train with a piece of coal, thereby causing him to fall beneath the cars and to be run over and killed. Therefore it could not be said that the plaintiff had more certain and satisfactory evidence in his power to sustain his contention, and yet relied on that which was of a weaker and inferior nature, even if Reese and all of such persons had been under his power or control, and even if they all might have been where they could have seen what occurred when Wright was killed.

3. The motion further complains that "the court erred in refusing to permit plaintiff to prove by the witness Jesse Moore that the deceased, Andrew Wright, had frequently gotten on defendant's freight trains, similar to this, about this same place, and about the same part of the train, headed in the same direction, to go down to Bullards, or to the bridge, or other neighboring point, to fish or hunt, and that the conductors, instead of putting him off, had permitted it, and accepted pay, either in money or fish,-sometimes one, sometimes the other; that the defendant, through its conductors, permitted him to get between the cars, and accepted for his transportation sometimes money and sometimes fish." In this connection counsel for plaintiff stated that he "could not bring the testimony to any train on which Conductor McCrary was in charge." Plaintiff's contentions were, in substance: (1) That McCrary, who was in charge of the defendant's freight train as conductor, willfully and without any provocation knocked Wright off such train with a piece of coal, causing him to fall beneath the cars and be killed; (2) that said conductor wrongfully and violently compelled Wright to leave such train while it was in rapid motion, by reason of which he fell between the cars and lost his life. The tes timony of plaintiff's witnesses, if credible, sustained the former contention. The evi. dence for the defendant was to the effect

If

that McCrary did not knock Wright off the train, nor use any violence whatever towards him; that McCrary did not even know that Wright was on the train. If either of the plaintiff's contentions were true, the defendant would be liable, whether Wright was rightfully or wrongfully on the train. there as a passenger, the conductor was bound to exercise extraordinary diligence to protect his life and person. If he was a trespasser, he was entitled to protection against wanton and unnecessary violence on the part of the conductor in expelling him from the train. Civ. Code, § 2266; Higgins v. Railway Co., 98 Ga. 751, 25 S. E. 837; Railway Co. v. Godkin (Ga.) 30 S. E. 378. As the only purpose of this testimony of Moore was to show that Wright was on the train rightfully, we think the court did not err in rejecting it as irrelevant.

4. Extracts from the judge's charge are set forth in grounds 13, 14, 15, 16, 17, 18, 21, 22, 23, 24, 25, and 26 of the motion for a new trial, and excepted to generally, without specifying in any instance in what the error consists. It is urged by counsel for the defendant in error that such assignments of error are too general to be considered. While section 5530 of the Civil Code provides that, "when a party desires to review the judgment of the court in granting or refusing a new trial, the plaintiff in error shall specifically set out the errors complained of," etc., yet, in view of the settled practice and rulings of this court, general assignments of error like those just referred to must invoke at least a limited consideration. In Hunley v. State, 104 Ga. 755, 30 S. E. 958, it was held that: "Where the charge complained of appears on its face to be free from error, and no specific assignment of error is made on it, this court cannot consider it. If the error is apparent, the charge may be considered, on a general complaint that it is error." In other words, a general assignment of error upon an extract from the judge's charge will be considered for the purpose of ascertaining whether such extract states a sound legal proposition. If it does, that is an end of the matter. This court will not then inquire and determine whether the law embraced in the charge complained of be adjusted to the issues and proof in the case, for the simple reason that no such point is made. The truth is that a complaint that a certain specified charge was erroneous practically amounts, pure technicality aside, to a specific complaint that the trial judge misstated the law. Therefore such complaint should be treated as a sufficiently explicit assignment of error to raise the question whether or not the proposition complained of is or is not, considered in the abstract, correct; thus placing the burden upon this court of ascertaining what the law upon the subject is, and of then comparing the same with the charge of which complaint is made. If the charge correctly stated the law, then no er

ror has been shown by the complaining pariy under his general exception, and every presumption will be in favor of the judgment. If the excerpt from the charge of the court, generally excepted to, be wholly erroneous, then, as all error is presumably prejudicial, this court will further consider the matter by examining the record for the purpose of ascertaining if the party complaining has really been injured by the erroneous charge. What was said in the cases of Lamar v. State, 72 Ga. 205; Wilson v. Garrick, Id. 663; Higgins v. Railroad Co., 73 Ga. 149; Erskine v. Duffy, 76 Ga. 603; and Railroad Co. v. Olds, 77 Ga. 673,-and perhaps in other cases, as to the requirement of specific assignments of error, is not really in conflict with what we have herein stated. An examination of those cases will show that, while a strict rule as to assignments of error was announced, yet in each case the charges which were generally excepted to were correct expositions of the law; and it further appears that the court examined them, and in several instances expressly stated that they were not erroneous. The spirit, at least, of all that is laid down in these cases, is, we think, in complete harmony with what is now ruled. We have carefully considered all of the extracts quoted from the charge, which were excepted to generally, in the above indicated grounds of the motion, and find no error in them, save those complained of in the thirteenth and fifteenth grounds; and both of those, while in some slight respects erroneous, contain distinct propositions of sound law. According to numerous decisions of this court, the rule is that a general exception to an extract from the charge makes the simple question whether the whole extract is erroneous, and, unless the whole of it be illegal, the exception must specifically point out the illegal part; otherwise, it cannot be ascertained whether the party is complaining of the part that is sound, or of that which is erroneous. For these reasons the thirteenth and fifteenth grounds cannot be further considered. Judgment reversed. All the justices concurring.

(108 Ga. 774)

ROONEY v. CITY COUNCIL OF AU-
GUSTA.

(Supreme Court of Georgia. April 19, 1899.) INTOXICATING LIQUORS-ILLEGAL SALE-EVIDENCE-CERTIORARI.

1. It is not erroneous to refuse to sanction a petition for certiorari, alleging that a conviction of violating a city ordinance prohibiting the keeping open of a barroom on the Sabbath day was contrary to law and the evidence, when it appears on the face of the petition that there was at the trial sufficient evidence to show that the barroom was kept open on the Sabbath, and to warrant the judgment against the accused.

2. The testimony of a witness for the latter in such a trial (it not appearing that such witness had any connection with the keeping of the barroom) that, "if the barroom

was

open on Sunday, it was without" the consent

BARFIELD v. MULLINO. (Supreme Court of Georgia. May 30, 1899.) TRIAL CONDUCT OF JURY-SEALING VERDICT.

Where a jury has retired for the purpose of considering and determining a case, the court should not, without the consent of the parties or their counsel, permit them to disperse, until a verdict has been received in open court, or the case withdrawn from their consideration. (a) It appearing in the present case that the court, without the consent of the parties or their counsel, permitted the jury, during a recess of the court, to seal their verdict and disperse, and that immediately upon the reconvening of the court, before the verdict was published, counsel for defendant objected to its reception, and moved that a mistrial be declared, it was error, under such circumstances, not to declare a mistrial.

(Syllabus by the Court.)

Error from superior court, Macon county; Z. A. Littlejohn, Judge.

Action by F. M. Mullino against J. D. Barfield. Judgment for plaintiff, and defendant brings error. Reversed.

W. G. Harrison and J. M. Du Pree, for plaintiff in error. Greer & Felton, for defendant in error.

COBB, J. Mullino sued Barfield in a justice's court upon an account. Upon the trial the evidence was conflicting, and the jury trying the case returned a verdict in favor of the plaintiff. The defendant filed a petition for certiorari, complaining, among other things, of the refusal of the justice to declare a mistrial in the case. It appears from the record that, after the jury had retired to consider the case, the hour arrived for the court to take the noon recess, and the court instructed the bailiff, without the knowledge or consent of the defendant or his counsel, that, in case the jury agreed upon a verdict before the court reconvened, they could return a sealed verdict at that hour. When court reconvened, it appeared that the jury had agreed upon a verdict during the recess, and had dispersed. Defendant's counsel objected to the reception of the verdict, and moved the court to declare a mistrial in the case. The justice, in his answer, states that he did not understand why counsel did not hear his in

structions to the bailiff in reference to the jury returning a sealed verdict, but nothing is stated by him from which it could be necessarily inferred that counsel heard the instruction given to the bailiff. The court overruled the motion to declare a mistrial, and the verdict was received in open court. The judge overruled the petition for certiorari, and the defendant excepted.

When a jury has retired to consider the case submitted to them, and make up their verdict, they should not be allowed to disperse until they have returned a verdict in open court, or a mistrial has been declared, unless the parties or their counsel consent that the verdict may be rendered in some other manner. Delivering a sealed verdict to the judge or other officer of the court, out of court, or delivering a sealed verdict to any person, to be by him carried into court in the absence of the parties to the case or their counsel, is a proceeding not known to strict law, and is not authorized under any circumstances except by consent of the parties or their counsel. When a verdict is rendered in open court, and it does not cover the issues submitted, it is within the power of the judge to deliver further instructions to the jury, and permit them to consider the case again, and save the parties the expense of another trial. This right is lost to the parties after the jury has dispersed before the verdict is published. Settle v. Alison, 8 Ga. 201; Cothran v. Donaldson, 49 Ga. 458. When a verdict is rendered in open court, the losing party has a right to request the judge to permit the jury to be polled; and this right is lost if the jury disperse before the verdict is received. Smith v. Mitchell, 6 Ga. 458; Rutland v. Hathorn, 36 Ga. 380. It is true that in civil cases it is within the discretion of the judge whether he will allow the jury to be polled or not. See the cases cited immediately above. But this discretion must be exercised at the time that the request is made, and the judge cannot, by giving the jury permission to disperse before the verdict is rendered, say, in advance of the rendition of the same, that he will not allow the jury to be polled. It clearly appears from the present record that there was no express consent that the jury might disperse, and a sealed verdict be brought in by the foreman. While the justice, in his answer, states that he does not understand how it was that counsel for the defendant did not hear him tell the bailiff that the jury could bring in a sealed verdict, it does not distinctly appear that counsel heard this statement, and therefore it cannot be said that there was an implied consent on the part of counsel to the irregular way in which the verdict was rendered. It distinctly appears from the record that at the first opportunity offered counsel after it had come to his knowledge that the jury had dispersed, and a sealed verdict was brought into court, he objected to the reception of the verdict, and moved for a mistrial in the case. We think, under the facts of this case, a mistrial