plaintiff W. J. Peters and the defendant B. Moore to raise the sum of $1,000 for the Nolan Coal Company, and that the said Peters and Moore undertook jointly to raise said sum by said means, and that the defendant T. L. Henritze indorsed the same for the purpose only of enabling them to raise said money on said note, then they shall find for the defendants." Instruction B reads: "The court instructs the jury that if they believe from the evidence in this case that T. L. Henritze, one of the defendants herein, subscribed his name to the note introduced as evidence in this case solely for the purpose of accommodating the said B. Moore and W. J. Peters, and if you further believe from the evidence introduced that said T. L. Henritze derived no benefit therefrom, then you must find for the defendant, T. L. Henritze." The vice of each of these instructions is that they ignore the element of actual contract with the payee always involved in such cases. These instructions were in the interest mainly of the defendant Henritze. The question before the jury was not what was the purpose of the making of the note, and of the indorsers in indorsing the note, but what was their actual contract with the payee. The purpose of Henritze may have been as recited in the instructions, and it may have been that Peters and Moore undertook to raise the money jointly; but, if the contract between the maker and indorsers and the payee was different from that which the form of the note implied, it was necessary to show it in evidence. These instructions ignore this element, and were properly rejected. Moreover, had the instructions properly propounded the law and been given, we do not see how the jury could have reached a different verdict. Hence the defendants could not have been prejudiced; and we should not disturb the verdict. Boggess v. Taylor, 47 W. Va. 254, 34 S. E. 739.

On his examination in chief, counsel for defendants asked the defendant Moore the following question: "Q. He simply indorsed the note in order to allow you and Mr. Peters to raise the money to protect yourselves, is that right? A. Yes, sir." This question and answer were properly excluded, because leading, if not also immaterial.

The action of the court in striking out the question propounded to the plaintiff on crossexamination, as to why he was interested in getting money to pay off the debts of the Nolan Coal Company, and his answer thereto "I am a stockholder of that company”— was not prejudicial. The fact was otherwise made to appear in evidence, and, besides, we do not see that the matter was material.

All other points of error assigned are involved in the action of the court in overruling the defendants' motions to set aside the verdict, in arrest of judgment, and for a new trial. The only grounds urged in the brief and argument of counsel are as to the weight

of the evidence on the controlling question, whether the contract with the plaintiff, the payee, was different from what is to be implied from the form of the note. The jury are exclusively and uncontrollably the judges of the weight of the evidence, and of the inferences and deductions of facts proven, and not the court. We cannot therefore disturb the verdict unless there has been a plain deviation from right and justice; nor in a doubtful case, merely because the court if on the jury would have rendered a different verdict. We will refer to only some of the salient facts in this case which impress us that the verdict and judgment were right. The evidence shows that Moore and Henritze, the former as managing officer, and the latter as special friend of the former and as attorney for the coal company, without the knowledge of the plaintiff, met the creditors of the company at Huntington and negotiated a contract for the extension of time of payment, the creditors to put up $6,000, and Moore and Henritze agreeing to raise $1,000 to be paid over to trustees for the creditors. After this agreement with creditors, Moore arranged a meeting with Peters and Henritze at Moore's house, where all agree that Henritze represented that he thought he could get the $1,000 from one Lusk, a friend of his, and it was agreed that, if he could, the three should jointly indorse the paper of the company as sureties. Henritze failed to get the money from Lusk. Peters says he then proposed to furnish the money if Henritze and Moore would indorse the paper. Henritze says there was no new agreement after the first meeting, but admits that after he failed to get the money from Lusk Peters proposed to furnish it. No note had been prepared prior to the time Peters proposed to loan the money. A note representing the original agreement to jointly indorse and become liable would have been made payable to all three indorsers. The original of the note as executed to Peters as payee, if indorsed, would have rendered him first liable, regardless of the order in which the paper was indorsed. It cannot be that this note was intended to represent the original agreement for joint indorsement and joint liability, or a contract by which Henritze should be rendered liable as accommodation indorser for Moore and Peters. We know from the record that Henritze is a lawyer, and presumed to know the law of contracts of this nature. We notice, also, the significant language of the note itself, viz: "Homestead and all other exemptions waived by the maker and each indorser." The fact that on October 1, 1904, a few days after arranging with Peters to furnish the money and executing to him the note therefor, Moore and Henritze took a deed of trust from the coal company to secure themselves alone as irregular indorsers of this paper, taken in connection with the form of the note itself, goes a long way to support the claim of Peters that the

note in its prima facie effect represents the real contract. And not only is this true, but the fact that the renewal note was made and executed by the same parties in the same form, and delivered to Peters, adds additional strength to the position of the plaintiff. There is a manifest disposition of the witnesses in this case to adhere strictly to the truth, regardless of the consequences, and this is especially true of the testimony of Mr. Henritze, which is refreshing, tempting us to strain a point in his favor; but we are controlled by too binding rules to overthrow the verdict and judgment.

We therefore affirm the judgment of the circuit court rendered on May 18, 1906, with costs to the defendant in error.

(127 Ga. 555)

TURNER v. SEVILLE GIN & WAREHOUSE CO.

Supreme Court of Georgia. Feb. 14, 1907.) MASTER AND SERVANT-INJURY TO SERVANTACTION-DECLARATION.

While a master must furnish his servant a reasonably safe place in which to work, and if there are latent defects in machinery, or dangers incident to the employment, unknown to the servant, of which the master knows, or ought to know, he is bound to give the servant warning in respect thereto, yet, where a declaration showed no defect in a machine, and that the injury sued for did not occur from any such defect, or from a danger incident to the employment, of which it was the master's duty to notify the plaintiff, but solely from the negligence of a fellow servant, it was demurrable. [Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 297, 352.] (Syllabus by the Court.)

Error from Superior Court, Wilcox County; J. H. Martin, Judge.

Action by L. R. Turner against the Seville Gin & Warehouse Company. Judgment for defendant, and plaintiff brings error. Affirmed.

E. W. Williams and J. L. Bankston, for plaintiff in error. Hal. Lawson, for defendant in error.

LUMPKIN, J. Turner brought sult against the Seville Gin & Warehouse Company, seeking to recover damages for a personal injury. He alleged that under the command of the superintendent of the defendant he was throwing on the brushes of one of the gins certain particles of cotton; that the gin was supplied with a sliding or revolving "mote board," which was on the opposite side of the gin from him, and of which he did not know and was not warned, and that it was liable to be pushed against his hand by any person passing. As to the manner in which the injury actually occurred, the petition alleged, that "one Cason, a coemployé, and engaged at work in said ginnery, suddenly and without warning to petitioner wrongfully and negligently shoved the said mote board against the hand of peti

tioner, causing said mote board to violently strike the hand of petitioner in such a manner as to bring petitioner's said hand in contact with the saws of said gin, which were revolving with great velocity, thereby cutting and lacerating petitioner's right hand and arm," etc. From this statement it will appear that no latent defect in the machinery was alleged; nor did the injury occur by reason of dangers incident to the employment, unknown to the servant, of which the master knew or ought to have known; nor was the "mote board" pushed against the plaintiff's hand by a mere passing person. But the petition showed on its face that the injury to the plaintiff occurred solely from the negligence of a coemployé, who wrongfully and negligently shoved the board against his hand. Under the allegations of this petition, there was no error in sustaining the demurrer and dismissing the case. Civ. Code 1895, §§ 2610, 3030; Crown Cotton Mills v. McNally, 123 Ga. 35, 51 S. E. 13.

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

In a suit upon a forthcoming bond given in a claim case, the question whether the property levied upon and claimed is subject to the execution is not involved.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 21, Execution, § 427.]

2. SAME-LEGALITY OF LEVY.

In such an action the defendant cannot question the legality of the levy. [Ed. Note.-For cases in point, see Cent. Dig. vol. 21, Execution, §§ 421, 427.]

3. SAME-LEVY-SALE-ADVERTISEMENT.

In a suit of this character, the claimant is estopped from questioning the sufficiency of the description under which the property, after the claim case was dismissed, was readvertised for sale under the levy, when the advertisement describes the property exactly as it was described in the levy and in the forthcoming bond. 4. EVIDENCE-BEST AND SECONDARY.

Mere testimony of a constable that he does not know what has become of one of the notices, which he had posted of the sale of property levied upon, is not sufficient to authorize parol evidence of the contents of such paper.

[Ed. Note.-For cases in point, a Cent. Dig. vol. 20, Evidence, 8 612, 626.] 5. SAME-OPINION EVIDENCE.

Nor is the opinion of such witness, that the places where he posted the notices of the sale of the property were all public places, admissible in evidence. 6. EXECUTION BOND.

CLAIM CASE

ACTION ON

The evidence was not such as to authorize the direction of a verdict in favor of the plaintiff.

(Syllabus by the Court.)

Error from City Court of Floyd County; Harper Hamilton, Judge.

Action by C. L. Harris, constable, for use

needed of the authority of Byars, as a lawful constable of Floyd county, to advertise and sell the property, it was supplied by his testimony, which was undisputed. The advertisement described the property exactly as it was described in the respective levies under which the forthcoming bonds were given, and exactly as it was described in such bonds. The claimant was clearly estopped from questioning the sufficiency of the description, after having both claimed the property under such description and given bonds for the forthcoming of property thus described. In this connection, see Garner v. Clark, 115 Ga. 666, 42 S. E. 56.

4. The court permitted the constable, Byars, "to testify, over objection by defendant's counsel, that he had posted similar notices to that introduced in evidence at two other places"; the objection being "that the notices themselves would be the best evidence. The witness testified that he remembered that he had destroyed one of the notices and that he did not know what had become of the third one. The court thereupon permitted the witness to testify that he had posted three notices with the same contents as the one introduced in evidence." Error was

assigned upon this ruling. Clearly the evidence as to the contents of the paper which had been destroyed was admissible. We think, however, that the loss or destruction of the third "notice" should have been shown before evidence as to its contents was allowed. So far as appeared from the constable's testimony, that paper might still have been posted where he had placed it, and, therefore, easily accessible; and being no longer of use as an advertisement of the sale, it could have been taken down to be used in evidence. Evidence that it could not be found where it had been posted, and that the constable who posted it did not know what had become of it, would have made out a prima facie case of its loss or destruction. But the constable did not testify that he had made any effort whatever to find it. As it did not appear that this paper was inaccessible to the diligence of the plaintiff, evidence of its contents was inadmissible.

5. The court also permitted this witness to testify "that the places where he had posted the three notices were public places," over the objection that the question whether they were or not was one to be decided by the jury, “and that the witness should state the facts and let the court and jury decide whether said places were public places." We think the court erred in this ruling. The question whether the places where the notices had been posted were public places was one for the jury, and not for the witness. It was not a question for opinion evidence, though the witness gave the facts upon which he based his opinion. "The opinion of a witness is not admissible in evidence, when all the facts and circumstances are capable

of being clearly detailed and described, so that the jurors may be able readily to form correct conclusions therefrom." Mayor of Milledgeville v. Wood, 114 Ga. 370, 40 S. E. 239; Southern Mut. Ins. Co. v. Hudson, 115 Ga. 638, 42 S. E. 60; Sumner v. Sumner, 118 Ga. 590, 45 S. E. 509; Central Ry. Co. V. Goodwin, 120 Ga. 83, 47 S. E. 641.

6. Even under the evidence admitted, the direction of a verdict in favor of the plaintiff was erroneous. There was no breach of the bond unless the property had been lawfully advertised for sale by the constable. Until the sale was lawfully advertised, there was no legal notice to the obligors in the forthcoming bonds to produce the property. They were obligated to produce the property “at the time and place of sale”—that is, at the time and place legally appointed for the sale and not at any time and place that the constable should see fit to call upon them to produce it. In order for a time and place for the sale to be legally appointed, the sale had to be advertised for 10 days before the date set for it to take place, and the advertisement time in three public places in the county. thereof had to be posted for that length of Civ. Code 1895, § 4165. It was not so clearly manifest that all three of the places at which the constable testified that he had posted the notices of the sale were public places that a finding by the jury to this effect was demanded. This may have been true as to one of these places-the door in front of the courthouse; but as to the other two it was not. One of these last-mentioned places was on a tree standing at the edge of the sidewalk on Broad street, in the city of Rome; the notice being "posted on the tree facing up the street." According to the witnesses' testimony, "people passing along the sidewalk would not be apt to see it, unless they turned. People going up the street would not be apt to see it." But that tree at that time "was used as a public place." It evidently was so used at that time by the witness, when he posted the notice there; but how or by whom it was otherwise so used he did not say. The third place was "inside the hallway in Douglas' stable," "about eight feet from the front door, just beyond the door that goes into the office." The livery stable fronts on Broad street, "which is the main thoroughfare of Rome." "People passing along the street could see the advertisement in Douglas' stable, but could not read it. They would have to go in to read it." "Douglas & Co. conduct a general livery business, buy and sell stock, and board horses, hire out horses," etc. The plaintiff, Harris, testified that this stable was located "in the center of the town, on Broad street, which is the most prominent street in the town"; that "a great many people frequented it"; that there were large doors "at the front, made out of slats, with holes through them. The doors can be seen through." The stable opened about 5 o'clock in the morning and closed about 10 o'clock at

night. It was not a place "where all the people, ladies and gentlemen and children, are accustomed to pass"; but it is like any other business place in town. "People who have business to transact there go in and transact it and come out. They put their horses in there." "A good many people stand around the front of [the] stable on the sidewalk," and everybody, at one time or another, passes along the sidewalk in front of it; but the witness did not know what proportion go in. As the evidence did not demand a finding that the advertisement of the sale had been posted at three public places in the county, the court erred in withdrawing this question from the consideration of the jury and directing a verdict in favor of the plaintiff.

Besides, unless the mere date on the notice, or advertisement, which was introduced in evidence was presumptive evidence that it and the others, similarly dated, were posted on that day, there was no evidence as to when the notices were posted. The advertisement introduced in evidence was dated 11 days before the date fixed therein for the sale to take place. While we think that the date of the paper afforded presumptive evidence that it was written on that day, we think it questionable whether it can be presumed, from the date of the posted notice, that the posting was done on that day. Judgment reversed. All the Justices concur, except FISH, C. J., absent.

Where a railroad company of this state receives from a railroad company in another state a car, under a contract by which the domestic company has the right to carry the car loaded to its destination in this state and unload it, and then to reload and return it to the owner beyond the limits of this state, paying for the use of the car, the right of the domestic company to the use of the car is superior to the right of an attaching creditor, who, without any other lien, seeks to subject the car to attachment by service of the summons of garnishment upon the domestic company; and, in the absence of appropriate equitable pleadings in a court with jurisdiction to render affirmative equitable relief, such car is not subject to the process of garnishment. 2. COMMERCE

REGULATION

TIONAL PROVISION.

CONSTITU

Where a railroad company of this state receives from a connecting railroad company of another state a railroad car loaded with freight consigned from a point in another state to a point in this state, under a prevailing custom among railroads and under a contract between the two roads at interest that, instead of unloading and reloading at the point of intersection outside of this state, the domestic company, upon payment for the use, should have the right to bring the foreign car loaded into this state and to the point of destination, there to be unloaded and afterwards reloaded with freight, and then returned, in the direction from which it came, to a point beyond the limits of this state, such car, while in this state, is not

exempt from attachment sought to be executed by service of summons of garnishment for the collection of a debt alleged to be due by the owner, upon the ground that the impounding of the car is such an interference with interstate commerce as to be violative of article 1, § 8, par. 3, of the Constitution of the United States, and section 5258 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 3564). (Syllabus by the Court.)

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by the Southern Flour & Grain Company against the Northern Pacific Railway Company and others. From a judgment in favor of defendants, plaintiff brings error. Affirmed.

Walter McElreath and W. H. Terrell, for plaintiff in error. Payne & Tye and Tye & Bryan, for defendants in error.

ATKINSON, J. 1. The only contention made before us by counsel for plaintiff in error is that a certain railroad car, the property of the Northern Pacific Railway Company, the defendant in attachment, which came into the hands of the garnishee, the Western & Atlantic Railroad Company, within the jurisdiction of the court, after the execution of the attachment by service of the summons of garnishment and before the garnishee filed its answer to the summons of garnishment, is subject to the attachment. The garnishee insisted that the car was not subject to attachment, and set forth in its answer to the summons the facts upon which it contended that the property was not subject. There being no traverse to the answer of the garnishee, the court, upon motion and consideration, discharged the garnishee and dismissed the attachment. The plaintiff in error was the plaintiff in the court below, and excepted to the ruling of the court. The answer of the garnishee in effect sets up two theories under which it was insisted that the court should not require the garnishee to surrender the possession of the car, to wit: (a) That the garnishee had a right to the use of the car superior to the right of the garnishing creditor; (b) that, the car being employed in interstate commerce, it would be a violation of the federal Constitution and statute upon the subject of interference with interstate commerce to require the surrender of the car. If the judgment was right upon either theory, it would be our duty to affirm it. As we shall affirm the judgment upon the first theory only, it is necessary that we should deal with that view of the case. In the brief for plaintiff in error no point is insisted upon, except that the property was not relieved from the process of garnishment by force of the federal Constitution and statute on the subject of interference with its interstate commerce. Inasmuch as this the

ory of the case has been dealt with by counsel on both sides, and a ruling thereon is desired, we will also deal with the last theory mentioned; but we will not consider