entitled to recover at all. Sometimes complaint has been made that the two rules have been charged near together and in such way as to confuse the jury. It is now complained that they were charged too far apart. An examination of the record and bill of exceptions in the case of Miller v. Smythe, 95 Ga. 288, 22 S. E. 532, shows that the point made in the bill of exceptions was that, in actions for damages to personalty, "contribuory" negligence not only lessens, but defeats, a recovery. At any rate, in the present case, while the trained legal mind searching for error may find cause of exception, we do not think that the jury could have been misled or confused. It may be also remarked that a plaintiff cannot recover if he himself causes the injury or consents to it, or (as has been held) if both parties are equally at fault. But it might not be quite easy to attach all of these conditions in full to a charge as to reducing damages; and this would not cause a reversal, provided the charge is so shaped as, on the whole, to fully and fairly place the law before the jury.

4 (a). (Per ATKINSON, J., dissenting.) My own views with regard to the ninth ground of the amendment to the motion for new trial are as follows: In that ground complaint is made of the following charge of the court: "I call your attention, gentlemen, to this section of our Code: 'If the complainant and the agents of the company are both at fault, the former may recover, but the damages shall be diminished by the jury in proportion to the amount of default attributable to him.' That, gentlemen, is what is called 'contributory negligence.' In other words, if in this case Jesse Parker was guilty of some negligence, and the employés of the road were also guilty of some negligence that is, they were both negligent-and Jesse Parker was less negligent than the company, the plaintiff may still recover, but the damages should be diminished by the jury in proportion to the amount of default or negligence attributable to Jesse Parker. If both were equally negligent, the plaintiff cannot recover. But if both were to blame for the injury, and Jesse Parker was less to blame than the company, the plaintiff may, notwithstanding his negligence, recover, but the damages should be diminished by the jury in proportion to the amount of negligence attributable to Jesse Parker." The criticism upon that charge by counsel for the railroad company was as follows: "Said charge did not correctly give to the jury the doctrine of contributory negligence. It was contradictory, confusing, and misleading. It naturally left the jury under the impression, coming as it did at the conclusion of the charge on the question of negligence, the most material feature of the case, that the plaintiff, Jesse Parker, could recover damages even though he might have avoided the injury by the exercise of due care and diligence on his part. This was error, and defendant assigns the same as

error. Said charge of the court naturally left the jury under the impression, coming as it did at the conclusion of the charge on the question of negligence (the most material feature of the case), that the plaintiff, Jesse Parker, could recover damages, even though he failed to exercise ordinary care and diligence to avoid the consequences of the defendant's negligence. Said charge is illegal as it stands; the proper and legal manner being that a proviso should have been added thereto that the plaintiff could not recover in any event if, by the exercise of ordinary care and diligence on his part, he could have avoided the consequences to himself of defendant's negligence, if defendant was negligent. Said charge qualified the former charge in regard to the avoidance of the accident by the use of due care and diligence on the part of the plaintiff, and, being thus given without proper explanation, deprived the defendant of the benefit of one of its main defenses to this suit." It will be observed that this charge omits any reference whatever to the principle that if, by the exercise of ordinary care, the plaintiff could have avoided the injury to himself resulting from the defendant's negligence, he would not be entitled to recover. The omission was under such circumstances as may have had the effect of elimination altogether. It is true that in previous portions of the charge the court time and again charged the principle alluded to above, but not in any instance intimating that the principle was to operate as a qualification of what afterwards should follow, to wit, that which is expressed in the excerpt quoted above.

Nor was the principal above mentioned charged or alluded to after the deliverance of that part of the charge quoted in the excerpt. It is contended that the antecedent repetition in the charge of the principle alluded to rendered the omission thereof from the charge quoted in the excerpt harmless, because an intelligent jury could not have misunderstood the court, and would be bound to know in any event that if the plaintiff, by failure to exercise ordinary care for his own protection, after the negligence of the defendant became apparent, could have avoided the injury, he could not recover. It is not apparent that the frequent repetition was bound to have that effect. To properly construe the court's charge, we should bear in mind the subject with which the court was attempting to deal. It was an attempt to Ideal with section 2322 of the Code as a whole. That section purports to be exhaustive. After reading that section from the Code, the court then proceeded to apply it to the case, and the court's application purported to be exhaustive, and to leave no place for the application of anything else, and especially not for the principle to which allusion has already been made. The court, in applying the law, uses the express and unqualified language: "If both were equally negligent, the plaintiff cannot recover. But

if both were to blame for the injury, and Jesse Parker was less to blame than the company, the plaintiff may, notwithstanding his negligence, recover, but the damages should be diminished by the jury in proportion to the amount of negligence attributable to Jesse Parker." This language does not come from the Code, and it is not a correct statement of the law with reference to the rights of the defendant. The language, "But if both were to blame for the injury and Jesse Parker was less to blame than the company, the plaintiff may, notwithstanding his negligence, recover, but the damages should be diminished by the jury in proportion to the amount of negligence attributable to Jesse Parker," is not a correct statement of the law from the defendant's standpoint, because it may happen that both may be to blame, and the plaintiff's blame may be less than that of the defendant, yet the blame attributable to the plaintiff, though less than that of the defendant, may be such as to show a want of ordinary care upon his part. If such be true, he ought not to recover; but the language of the charge makes it possible for him to recover even under those circumstances. This incorrect statement of the law, given as the court's interpretation of the section of the Code above referred to, being apparently exhaustive of the court's direction on this particular point, was harmful to the defendant, under the contentions made by the pleadings and the evidence. It was sharply contended by both parties that the negligence of the other was the cause of the injury. It was contended by the plaintiff that he was in the exercise of ordinary care and diligence, and contended by the defendant that the plaintiff's want of ordinary care was the cause of the injury. Owing to the apparent exhaustive character of the charge on this point, without any intimation of the rule that a want of ordinary care on the part of the plaintiff would prevent a recovery, the harmfulness of the error was not removed by the instruction in other parts of the charge, to the effect that the plaintiff could not recover, if, by the exercise of ordinary care, he could have avoided the injury. Especially is this true where, as in this instance, the court did not refer to the other portions of his charge so the jury would understand that what he was charging was subject to the qualification. It is the duty of the jury to give effect to the whole charge. They are supposed to believe that all the court charges is the law. They are not, as in matters of fact, skilled in working out apparent conflicts in the charge of the court, or in tracing out fine points of qualification. If, during the progress of the charge, the court gives instructions opposed to each other and one is incorrect, it would not be within the province of the jury to say which was correct, and, after determining for themselves the one which was correct, to proceed with

its application in finding their verdict. When the way is left open by the court for such a course by the jury, it is to be treated as erroneous, and, if upon a material and vital matter, as harmful error. After verdict by the jury it is impossible for the court ever to know upon which instruction of the court the jury acted. If, as in this case, the incorrect instruction be embraced in a particular part of the charge purporting to be exhaustive upon a particular point vital to the plaintiff's case, and without intimation that there may be a qualification, the jury may believe that no qualification was intended as applicable to that particular point, and on that account may not give to the defendant the benefit of the defense which is provided for by law. Because of this error a new trial ought to have been granted. See, in this connection, Miller v. Smythe, 95 Ga. 288, 22 S. E. 532 (3); Americus R. Co. v. Luckie, 87 Ga. 6, 13 S. E. 105; Savannah R. Co. v. Hatcher, 118 Ga. 273, 45 S. E. 239.

5. The tenth ground of the amendment to the motion for new trial complains of a ruling of the court in refusing to give in charge to the jury the following written request: "If you should believe from the evidence that the officers and agents in charge of the train on this occasion failed to give the signals provided by law, and that the train was running at a high rate of speed, and at a speed prohibited by the municipal ordinance of La Grange, and that Jesse Parker was on the track at a point other than a crossing, and walking on the track, and that, after discovering him on the track, the agents in charge of the train exercised ordinary and reasonable care and diligence to avoid injuring him, then the plaintiff in this case would not be entitled to recover." There was no error in refusing to so instruct the jury. The request was not so qualified as to bring it within the ruling made in Shaw's Case, supra. It was an attempt to take from the consideration of the jury the character of the place at which the injury occurred, the frequency of its use by pedestrians as a pathway, and the question of whether the defendant and its servants had reason to anticipate the presence of pedestrians on the track. Its effect was to instruct the jury that, regardless of the character of the place in respect to the matters just referred to, the defendant was not under any duty to the plaintiff until after he was discovered on the track.

6. The eleventh ground of the amendment to the motion for new trial complains of a refusal of the court to grant a mistrial because of an improper remark of counsel for the plaintiff made during the progress of the examination of the witnesses. Under the rulings in the cases of Southern Ry. Co. v. Brown, 126 Ga. 1, 54 S. E. 911, and Long v. State (Ga.) 56 S. E. 444, the harmful effect of the remark, if there was such, was obviated by the instructions of the judge wherein he

informed the jury that it had nothing to do with the case, and that they must not consider it in determining the issues involved.

7. The thirteenth ground of the amendment to the motion for new trial recited as follows: "Plaintiff's counsel offered in evidence a certified copy, from the minutes of the mayor and council of the city of La Grange, of what purported to be an ordinance of said city, bearing date April 3, 1901. Defendant objected to the following language: 'We object to that paper. We have a printed Code of the city, adopted, and which repeals all other ordinances not contained therein. This book contains all the ordinances of the city except such as have been adopted since then.' Defendant's counsel then read to the

of La Grange as a valid ordinance at the time Jesse Parker was injured. This was error because (1) it was a question for the court to pass on as a matter of law; (2) it not appear ing in the printed code of ordinances subsequently adopted, as an ordinance of said city, did not exist as such; (3) the minute book of council shows that said pretended ordinance was marked out on the minutes as shown above, and had been stricken therefrom. The court erred in not excluding the same from the consideration of the jury, and error is assigned thereon."

We do not think the grounds of exception are well taken. The certified copy was properly admitted in the first instance.

The printed code or compilation of munic

"An ordinance to approve, adopt, and make of force the code of laws and ordinances prepared under the direction and authority of the mayor and council of the city of La Grange, and for other purposes. "'Section 1. Be it ordained by the mayor and council of the city of La Grange, that the code of laws and ordinances prepared under their authority and direction by Harwell and Lovejoy, attorneys, and examined, revised and identified by a committee appointed for that purpose by the mayor and council, and recommended and reported for adoption, be and the same is hereby adopted and made of force as the code of the laws of the city of La Grange to go into effect at once.

"'Sec. 2. Be it further ordained that all ordinances and parts of ordinances in conflict with this ordinance be and the same are hereby repealed.'

"The court admitted the certified copy of ordinance offered by plaintiff over the above objections of this applicant. The above occurred when the plaintiff was introducing its testimony. This is assigned as error. During the progress of the case, some time afterward, when the defendant was offering its testimony, the defendant introduced the minutes of the city council of La Grange wherein said purported ordinance appeared, marked out in the following manner: There had been lines on the minutes of said council marking out the said ordinance, being section 1, leaving the balance of said ordinance in relation to obstructing streets and sidewalks at crossings by cars in the same condition it was recorded.. At this time defendant tendered the code of laws of the city, when plaintiff admitted that the ordinance introduced by plaintiff did not appear in the printed code of ordinances of the city. No motion was made at this time to rule out the ordinance offered by plaintiff, and no objection made thereto by defendant other than that already stated. In his charge to the jury the court submitted to them the question whether or not said pretended ordinance was an ordinance of force and subsisting in the city

were referred to in connection with the objection to the admission of this evidence, if considered as having been duly introduced before the presiding judge as a preliminary matter in connection with the objection, did not in terms repeal the ordinance of which a certified copy was offered. The adopting ordinance purported to do only two things: First, to adopt the code of laws prepared by certain attorneys; and, second, to repeal ordinances conflicting therewith. Nothing is shown to indicate that the ordinance offered was in conflict with anything in the printed code, nor was the repealing ordinance more general in its scope than as just indicated. At a later stage of the trial the evidence offered on behalf of the defendants could certainly have no greater force than to tend to show that the ordinance, a certified copy of which had previously been admitted in evidence, was not of force. It is not the usual or regular mode of repealing an ordinance merely to run lines through it on the record book, and it might well be doubted whether this alone could serve to show a repeal, or to disprove the existence and force, of the ordinance. But, in view of the fact that this ordinance so appeared upon the minute book, with the erasing lines drawn across it, and that it did not appear in the printed code, the presiding judge submitted the question to the jury whether it had been of force, and, if so, whether it had been repealed. This could certainly have done no injury to the defendant. If the defendant had produced an ordinance directly repealing this one, it would have been a question of law for the court. As nothing more than an effort to disprove the existence and vitality of the ordinance was made, the court did no injustice to the defendant in leaving the question to the jury.

8. The fourteenth ground of the amendment to the motion for new trial complains of the ruling of the court in refusing to set aside the verdict upon the ground that it was excessive. Upon a careful consideration of the evidence, we are not prepared to hold that the judge abused his discretion

in refusing to set the verdict aside upon that ground. There was evidence which would have authorized the jury in finding that the boy was a youth 14 years of age, of good health and robust physical condition; that his earning capacity was $1 per day, with the prospect of increased earning capacity; that both legs were mangled and mashed about the knees, so that amputation was necessary and actually performed, and that he was otherwise injured; and that his pain and suffering were very great. The jury were properly instructed by the court and charged with the proper consideration of all of the attendant circumstances. Among other things, they were instructed to consider whether or not the plaintiff himself was negligent, and, if so, whether his negligence contributed in any degree to the injury, and directed that any negligence upon his part which was consistent with a recovery of anything whatever by the plaintiff should go to decrease any damages which otherwise he might be entitled to recover. The jury under those conditions, found for the plaintiff $7,500, and the trial court was satisfied with that finding.

9. The sixth and fifteenth grounds of the amended motion for new trial are mere amplifications of the general grounds. The evidence taken as a whole, though conflicting, was sufficient to support the verdict. The seventh and eighth grounds of the amendment to the motion for new trial complained of certain charges of the court. The criticisms we do not regard as well founded, when considered in connection with the entire charge, and we do not deem it necessary to make further reference to them. The trial judge approved the verdict of the jury, and we see no reason to control his discretion in refusing to grant a new trial.

Judgment affirmed. All the Justices concur, except FISH, C. J., absent, and ATKINSON, J., who dissents.

(127 Ga. 501)

BRUNSON v. CASKIE et al. (Supreme Court of Georgia.

Feb. 14, 1907.) 1. MANDAMUS-SUBJECTS OF RELIEF-ACTS OF

COUNTY COMMISSIONERS.

Before the writ of mandamus will issue to compel the county commissioners to issue their warrant upon the treasurer to pay a debt, it must appear that the debt comes within the classes provided in the Constitution for which a tax may be levied.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 33, Mandamus, §§ 217-222.] 2. SAME.

When it appears, on application for mandamus to compel the issue of a county warrant to pay a judgment obtained against a county, that the county was without power to levy a tax to pay the damages alleged to have been sustained in the suit on which the judgment is founded, the principle of res judicata does not apply, and the court will go behind the judgment to ascertain if the liability of the county be such as it may legally levy a tax to discharge it.

3. SAME. Where, upon application for mandamus to compel the issuance of a warrant to pay a judg ment, the pleadings in the case, which resulted in the judgment sought to be enforced, disclosed that the judgment against the county was founded on an alleged cause of action for which the county was neither liable, nor could constitutionally levy a tax to discharge the alleged liability, the writ of mandamus should not issue. (Syllabus by the Court.)

Error from Superior Court, Baker County; H. N. Spence, Judge.

Application by H. W. Brunson for mandamus to T. H. Caskie and others, county commissioners. From a judgment denying the writ, the relators bring error. Affirmed. Brunson brought suit against Baker county for damages alleged to have been sustained because of a defective condition of a public road. The cause of action attached to the summons alleged that the county authorities had negligently allowed the public road to get out of repair, and that the plaintiff's agent, in charge of his horse, in the exercise of ordinary care was driving the horse upon the public road, when it fell into a ditch or gully which traversed the road, and was killed, to the damage of the plaintiff in the sum sued for. The suit resulted in a judgment. Subsequently Brunson filed his petition in the superior court, alleging that he had demanded of the county commissioners of Baker county payment of the judgment, and that they refused to pay the same, or to issue their warrant on the county treasurer for an amount sufficient to discharge the judgment, and praying that the writ of mandamus do issue requiring the commissioners to issue to him a county warrant upon the treasurer for the amount of the judgment. The court refused to make the mandamus absolute, and exception is taken to the judgment denying the writ.

A. S. Johnson, for plaintiffs in error. D. F. Crosland, for defendant in error.

BECK, J. (after stating the facts). The first step, in the inquiry as to the power of a court to compel a public officer by mandamus to do an act, is to determine whether the act is within his official duty. A county is not liable to suit for any cause of action, unless made so by statute. Pol. Code 1895, § 341. There is no statute which expressly or impliedly makes a county liable in damages for injuries sustained because of a defective public road, where the injury did not occur from a defective bridge. It is clear that, if the claim for damages which was the subject-matter of the plaintiff's suit had not been reduced to judgment, the county commissioners could not be compelled to pay the alleged claim. Further, the county commissioners cannot lawfully levy a tax unauthorized by the Constitution; nor can they divert a fund raised by taxation to the payment of a claim or demand for the satisfaction of which no tax could be constitutionally

levied. "Before an officer can be required to pay out public money, or be justified in doing so, those who demand its payment should be able to show a clear provision of the law which entitles them to receive it." Kennedy v. Seamans, 60 Ga. 612; Houston Co. v. Kersh, 82 Ga. 252, 255, 10 S. E. 199. The county revenue is mainly derivable from taxes, supplemented by such incidental funds as are paid into the treasury from the sale, rent or hire of county property, licenses, etc. Pol. Code 1895, §§ 399, 420. The prayer of the application for mandamus is to compel the commissioners to issue a warrant on the treasury. Such warrant, if so issued, would be drawn on any and all funds in the treasury. The Constitution (Civ. Code 1895, § 5892) declares that: "The General Assembly shall not have power to delegate to any county the right to levy a tax for any purpose, except for educational purposes in instructing children in the elementary branches of an English education only; to build and repair the public buildings and bridges; to maintain and support prisoners; to pay jurors and coroners, and for litigation, quarantine, roads and expenses of courts; to support paupers and pay debts heretofore existing." This constitutional provision not only inhibits the payment of a demand for which the county is not liable, by alleging a tax, but only permits by this means the payment of such claims as come within the enumerated cases for which they may levy a tax.

But it is said that the judgment which the applicant obtained in the justice's court finally adjudicated the county's liability. "The essential nature and real foundation of a cause of action are not changed by recovering judgment upon it, and the technical rules, which regard the original claim as merged in the judgment, and the judgment as implying a promise by the defendant to pay it, do not preclude a court to which a judgment is presented for affirmative action (while it cannot go behind the judgment for the purpose of examining into the validity of the claim) from ascertaining whether the claim is really one of such a nature that the court Is authorized to enforce it." Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 8 Sup. Ct. 1370, 32 L. Ed. 239. A judgment may be recovered against a county upon a demand which the county authorities may be without constitutional power to discharge by the levy of a tax. Moreland v. Troup County, 70 Ga. 714. Such a judgment may be enforced by levy, if at all; but mandamus will not lie to compel the issuance of a warrant payable from taxes which cannot be constitutionally levied. Putting the alleged claim into judgment gives the plaintiff no new rights, in respect to the means of payment, which did not exist before the judgment was obtained. U. S. v. County of Macon, 99 U. S. 584, 25 I. Ed. 331. When application is made to collect a judgment by process not contained in itself, and requiring, in order to be sus

tained, reference to the alleged cause of action upon which it is founded, the aid of the court should not be granted, when upon the face of the record it appears, not that mere error supervened in the rendition of such judgment, but that it rests upon no cause of action whatever. Brownsville v. Loague, 129 U. S. 505, 9 Sup. Ct. 327, 32 L. Ed. 780. It appeared in the mandamus proceeding that the county was not liable to the plaintiff on the alleged cause of action as set out in the original suit, and the writ of mandamus to enforce the judgment predicated thereon was properly denied.

Judgment affirmed. All the Justices concur, except FISH, C. J., absent.

MALCOLM v. DOBBS.

(127 Ga. 487)

(Supreme Court of Georgia. Feb. 27, 1907.) 1. APPEAL-REVIEW-DISCRETION OF LOWER COURT GRANT OF NEW TRIAL.

It is well settled that the first grant of a new trial will not be disturbed, when the evidence did not demand the verdict rendered by the jury.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3871-3873.] 2. SAME-WAIVER OF ERROR.

An assignment of error in a bill of exceptions, which is not referred to in the brief of counsel for the plaintiff in error therein, will be treated as having been abandoned.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4256-4261.] 3. TRIAL-TAKING QUESTION FROM JURYNONSUIT-DIRECTING VERDICT.

Where there is sufficient evidence to authorize a verdict in favor of the plaintiff, there is no error in refusing to grant a nonsuit, nor in refusing to direct a verdict for the defendant.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 338-341.]

4. PLEADING-AMENDMENT.

Where, in an action of trover, the plea of the defendant amounts simply to the general issue, it is error to allow the plaintiff to amend the petition by alleging that, after defendant took possession of the property, he expended a considerable sum thereon in repairing and improving it, which amount plaintiff "has always been willing to pay defendant," and "stands ready to tender into court," upon proof of the same by defendant; and by praying "that the jury be required to pass upon the question as to the amount" so expended by the defendant. It is likewise error to allow the plaintiff to amend the petition by stating that he "tenders in court to defendant" a designated amount of money, as "being in excess of the sum expended by defendant in overhauling and repairing the" property, and by offering "to deposit the same in the registry of the court." (Syllabus by the Court.)

Error from Superior Court, Cobb County; Geo. F. Gober, Judge.

Action by Carrie Malcolm against H. C. Dobbs. From the judgment, both parties bring error. Judgment on main bill of exceptions affirmed, and on cross-bill reversed.

Mrs. Carrie Malcolm brought an action of trover against H. C. Dobbs for the recov ery of a described mahogany sideboard. The