the defendants, with knowledge that the hog belonged to the prosecutor, intentionally killed it with a view to carrying it off and fraudulently converting it to their own use. The place and circumstances under which the hog was shot, the contradictory accounts given by the defendants as to how the hog met its death, and their conduct after they discovered they were being observed by a witness who came upon the scene, sufficiently justified the inference that they shot the hog with intent to steal the same, but were surprised before they had an opportunity to fully carry out their design by removing the hog from the place where it was killed. Lundy v. State, 60 Ga. 143; Williams v. State, Id. 367, 27 Am. Rep. 412. Upon this evidence the jury were authorized to find the defendants guilty of an attempt to commit larceny, and their conviction should be allowed to stand.

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

Under the ruling made in the cases of Oliver v. Hardware Co., 25 S. E. 403, 98 Ga. 249, 58 Am. St. Rep. 300, and Moultrie v. Crocker, 54 S. E. 197, 125 Ga. 82, the defendant, whose employment was that of building cabs and pilots for railway locomotives, was a "laborer," within the meaning of Civ. Code 1895, § 4732, exempting the wages of journeymen mechanics and day laborers from process of garnishment. The fact that the laborer is paid according to the amount, and not the length of time of his work, does not preclude him from claiming the exemption. See Johnson v. Hicks, 48 S. E. 383, 120 Ĝa. 1002.

[Ed. Note.-For cases in point, see vol. 23, Cent. Dig. Exemptions, § 70.]

(Syllabus by the Court.)

The plaintiff, under an execution against the defendant, sought to garnish certain money due the latter by the Seaboard Air Line Railway. The defendant contended that the money was earned while he was in the employ of the railroad company as journeyman mechanic or day laborer, and hence was not, under Civ. Code 1895, § 4732, subject to garnishment. On the trial the plaintiff introduced a witness who testified that the defendant was employed in that railroad company's shops in the capacity of cab and pilot builder for locomotive engines, that he was a skilled mechanic and an expert, and that "holding his job" was as much dependent upon his mental ability as upon his ability to perform manual labor, the one being about as important as the other; that he was paid monthly and in accordance with the number of cabs and pilots built, and not in accordance with the time consumed in his work; that he had no men under him, but in all the work he performed in building the cabs and pilots he did all the manual labor himself. No further testimony on this subject being introduced by the plaintiff, the court directed a verdict for the defendant, and the plaintiff excepted.

Hooper & Dykes, for plaintiff in error Williams & Harper, for defendant in error.

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

(125 Ga. 671)

CHENALL v. PALMER BRICK CO. (Supreme Court of Georgia. May 24, 1906.) MASTER AND SERVANT-INJURY TO SERVANTNEGLIGENCE OF FELLOW SERVANT.

It appearing from the plaintiff's evidence that the injury sustained by him was caused, not by any negligent act or omission of duty on the part of his master, but by the fault of a fellow servant, a nonsuit was properly granted. [Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 352.]

(Syllabus by the Court.)

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

Action by Saint Chenall against the Palmer Brick Company. Judgment for defendant, and plaintiff brings error. Affirmed.

This case has heretofore been twice before this court. See 117 Ga. 106, 43 S. E. 443, 119 Ga. 837, 47 S. E. 329. On its last appearance here, the fact was pointed out that, while the plaintiff alleged that the crown of the brick kiln which fell and injured him was constructed in a careless and unworkmanlike manner, and in general terms

charged the defendant company with having been guilty of negligence, yet the only specific act of negligence set forth in the plaintiff's petition was that the supports upon which the top or arch of the kiln had been built were removed too soon, and, as a result of this removal, the arch fell. 119 Ga. 845846, 47 S. E. 329. Subsequently the plaintiff amended his petition by alleging that the brick kiln was negligently constructed, in that the "buck-stay" rods were too low and touched the top of the arch; that they pressed down upon the top of the arch and had to be "slacked off" and prized up in order to admit of the brick being placed upon the "center," or wooden frame, and under these rods; that, in consequence, they did not bind together the walls of the kiln and strengthen the arch, as was their proper office, but weakened the arch and contributed to its downfall; and that the defendant had knowledge of these facts, or by the use of ordinary diligence could have had knowledge of them, whereas the plaintiff was in ignorance of these facts and had no way of ascertaining them. The plaintiff further amended by alleging that the arch which fell and injured him was intended to span, and did span, a distance of about 15 feet, and consisted of many tons of brick and mortar; that the construction of this arch was a work requiring great care and skill, and also a knowledge of the correct principles of arch construction, on the part of the person or persons planning and constructing it, of all of which the defendant had or should have had full knowledge; but, although well aware of the skill and care and knowledge required to safely construct the arch, defendant intrusted the whole planning and oversight of the construction thereof to its superintendent, J. D. Sloan, and its foreman, Charles Montgomery, who had no skill or knowledge in and about the construction of such arches, and who were incompetent to oversee such construction and insure the safety of the work, of which facts the plaintiff was ignorant, though they were well known to the defendant; and that to so intrust the construction of the kiln and arch, in and under which the defendant well knew many men would be constantly employed, was gross negli gence, and indicated an utter carelessness on the part of the defendant as to the safety of its employés. The last trial of the case resulted in a judgment of nonsuit, and the question now presented for decision is whether or not the plaintiff sustained by proof any of the specific allegations of negligence made in his pleadings as amended.

Burton Smith and Geo. Gordon, for plaintiff in error. Smith, Hammond & Smith, for defendant in error.

EVANS, J. (after stating the facts). No evidence was offered in behalf of the plaintiff which tended to establish his conten

said

tion that the defendant's superintendent, Sloan, "had no skill or knowledge in and about the construction of such arches" as that which fell, or that the master knew that he was incompetent to act in the capacity of its superintendent, or that "the construction of this arch was a work requiring great care and skill, and also a knowledge of the correct principles of arch construction, on the part of the person or persons planning and constructing arch." It is doubtless true that much care and skill are necessary in the performance of such work, but it is equally certain that the plaintiff did not prove that the plan adopted for rebuilding the arch which had previously fallen was unusual or improper, or open to any criticism, or that the defendant company, in intrusting "the whole planning and oversight of the construction thereof to its superintendent, J. D. Sloan, and its foreman, Charles Montgomery," well knowing that many men would be constantly employed in the kiln and under the arch, was grossly negligent, and indicated an utter disregard for the safety of its employés. Accordingly the plaintiff was not entitled to recover under that amendment to his petition in which he alleged that his master was negligent in retaining in its services a superintendent and foreman who were known to be incompetent to perform the duties assigned to them.

Nor did the plaintiff make out his case upon the theory of negligence and resultant liability, specifically set forth in his original petition, viz., that the supports upon which the top or arch of the kiln had been built were removed too soon, and, as a result of such premature removal, the arch fell. On the contrary, he introduced testimony which disclosed that the real cause of the falling of the arch was that assigned in the amendment to his petition, in which he alleged that the "buckstay" rods were "slacked off" and prized up in order to admit of the brick beng placed upon the "center," or temporary wooden framework over which the arch was constructed, so that they did not sufficiently bind together the walls of the kiln and strengthen the arch, as was their proper office, but weakened the arch by pressing down upon it, and contributed to and brought about its downfall. Only one witness, a bricklayer who had assisted in building the arch, was examined upon this point. testified, in substance, as follows: After the arch fell, he observed that the walls of the kiln were badly cracked, and in his opinion the giving way of the walls caused the arch to fall. When he first went to work, the "buck-stays" had been put up and tightened up. After the building of the arch had progressed somewhat, the fact became apparent that the "buck-stays" had not been placed high enough above the arch, but rested on top of the brickwork, so that they had to be loosened up in order to

He

get the brick down. The "buck-stays" were tightened up afterwards. In tightening them, the rods were drawn down so that they prized too much on the arch. Charles Montgomery, the "boss" or foreman, "looked after that," and the company's superintendent, Mr. Sloan, did not, the witness thought, have "anything to do with that at all." The "buck-stays" were there all the time. Some new ones had been put in. Those there before were all right, were good. The posts and "buck-stays" were up there to stay, and the falling in of the kiln did not affect them in any way. They were put up just before the workmen started to put the arch on, and "had nothing to do with the laying of the brick at all." Mr. Sloan came around occasionally, but Charley Montgomery looked after the laborers and kept them going. "The proper thing to do with these buckstays before you begin to lay the brick is to put them where you want them to stay, and don't move them any more. These were moved-were tightened up and slacked off. Neither I nor Chenall had anything to do with that or with putting them back. Charley attended to putting them up and seeing that the rods were raised." "I guess you would call it dangerous," after the rods were again tightened, "because the buck-stays were pulled down. So 'far as I saw, there was no danger of the arch falling. * * * I did not think it was going to fall. It then looked all right to me. So far as I knew, it seemed to be all right." Charley Montgomery helped the brick masons in carrying on the work. He rolled some brick and sometimes pitched them up, just like the other laborers do there. "If it was necessary, he would take the wrench and tighten up the rods. He put in all of the new posts that were put in at all, he and the other laborers. He did not do it by himself. He also put in the rods the same way. When I went there the rods were all in. Put the posts up, and put the rods in them all in shape; and we put the arch right underneath those rods. Mr. Sloan wasn't around there very often." Witness never saw a kiln that did not fall after it had been in use in burning brick for two years. Sometimes they go in a year. Sometimes, after one or two burns, they fall. He did not remember how long this one had gone before falling.

Upon this evidence the plaintiff must rest his alleged right of recovery. The question which it presents for determination is whether the defendant company is chargeable with the negligence of its foreman, Charley Montgomery, in placing the "buck-stays" too low, and subsequently undertaking to facilitate the work by loosening them in order that the brickwork of the arch might be completed, and then after the resisting powers of the side walls of the kiln had been weakened. tightening the rods till they rested upon and pressed down on the top of the arch. That the company, through its superintendent or

otherwise, had any notice of the improper manner in which the work was being conducted by Montgomery, its foreman, was not shown; nor did the plaintiff essay to allege or prove that the original plan upon which the kiln was constructed was not such as to admit of the rods being placed at a sufficient height to allow ample room for the building of an arch beneath them without their being loosened after being once drawn taut and the brickwork of the arch had been begun. Had the plaintiff sustained by evidence his contention that the defendant company had knowledge or was chargeable with knowledge of the fact that, notwithstanding the "buckstays" were placed too low, its foreman was carrying forward the building of the arch in the improper manner above stated, the case presented would be altogether different. As it is, we are only called on to decide whether the plaintiff's injury was attributable to any affirmative act of negligence or omission of duty on the part of the master of which complaint is made in the plaintiff's petition as amended, or was due solely to the negligence of a fellow servant. The testimony of the plaintiff himself, as well as that of every other witness who testified concerning the matter, discloses that Charley Montgomery was merely a colaborer, employed to assist the brick masons by supplying them with brick and mortar, and to work with the plaintiff and other unskilled workmen and see that they kept busy. He was, in common parlance, their "boss," and had previously assisted them and directed the carrying out of the orders to place some new posts in the kiln, and put in and tighten up the "buck-stays," preparatory to the advent of the brick masons. When the "buckstays" were found to be too low to admit of the placing of the brickwork of the arch beneath them, he assumed to remove the difficulty by loosening the rods and pressing them upwards. It does not appear that he was acting within the scope of his duty in thus assuming charge of the embarrassing situation, instead of reporting the encountered difficulty to the company's superintendent, who had engaged the masons to do the brickwork and had general supervision over them and the other workmen whilst engaged in putting a new crown upon the kiln, but was not present to superintend the work at all times. Looking to the evidence bearing on the subject of the relation which Montgomery sustained towards the plaintiff, the conclusion is irresistible that they were fellow servants, even though the former may have had authority to direct the latter and the other workmen how the tasks assigned to them should be performed. "A workman engaged in the same job with others, and having direction of it, is not a vice principal of the master, but stands on the footing of a mere fellow servant." Shepherd v. Southern Pine Co., 118 Ga. 292, 45 S. E. 220. Unless the master knew of and approved the plan

devised by Montgomery of loosening the "buck-stays," so that they would not interfere with the work of the brick masons, the defendant company cannot be held accountable for the error of judgment committed by him. Riverside Mills v. Jones, 121 Ga. 33. 38, 48 S. E. 700. A fellow servant, without the master's knowledge, cannot by an assumption of authority convert himself into a vice principal or alter ego of the master." Hilton & Dodge Lumber Co. v. Ingram, 119 Ga. 652 (8), 46 S. E. 895, 100 Am. St. Rep. 204. So, in the absence of proof that the defendant company had delegated to Montgomery authority to direct how the arch should be constructed or to supervise its erection, it cannot be assumed that he was its vice principal in causing the arch to be improperly and insecurely built. For what he did while acting in the capacity of a fellow servant of the plaintiff the master cannot be held liable, and it was incumbent on the plaintiff to show what was the real truth in this regard.

The plaintiff's case could not properly have been saved from the fate of a nonsuit by an application of the maxim "res ipsa loquitur." It appearing not only what was the direct and proximate cause of the falling of the arch, but also that its improper construction was due to the fault of a fellow servant, and not to any act of negligence with which the master was charged, that maxim could not have been invoked before a jury. This much was settled when the case was last here (119 Ga. 841-844, 846-847, 47 S. E. 329), and the ruling then announced is to be regarded as conclusive upon this point. Judgment affirmed. All the Justices con

cur.

(125 Ga. 818)

CITY OF ATLANTA v. PATE. (Supreme Court of Georgia. July 5, 1906.)

1. TRIAL-MISTRIAL.

The court did not err in refusing to declare a mistrial.

2. APPEAL-REVIEW-EVIDENCE.

The evidence supported the allegations in the petition, and was sufficient to support the verdict. See Pate v. Atlanta, 46 S. E. 827, 119 Ga. 671.

(Syllabus by the Court.)

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

Action between the city of Atlanta and J. S. Pate. From the judgment, the city brings error. Affirmed.

J. L. Mayson and W. P. Hill, for plaintiff in error. Westmoreland Bros., for defendant

in error.

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

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

(125 Ga. 739)

FEARS v. STATE.

(Supreme Court of Georgia. July 7, 1906.) 1. CRIMINAL LAW-NEW TRIAL-GROUNDSEXCESSIVE FINE.

A ground of a motion for a new trial, after conviction in a misdemeanor case, that the fine imposed was excessive, is without merit. Hill v. State, 50 S. E. 57, 122 Ga. 166. 2. SAME-ARRAIGNMENT OF ACCUSED.

Where, in the trial of one charged with a misdemeanor, upon arraignment of the prisoner the indictment was read to him by the solicitor general and a plea of not guilty was entered, no other or more formal arraignment was required. Pen. Code 1895, § 946; 12 Cyc. 344, and citations.

[Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 618.]

3. SAME-NEW TRIAL-Grounds-FAILURE TO FURNISH COPY OF INDICTMENT.

The failure to furnish the accused or his counsel with a copy of the indictment and list of witnesses, in the absence of a demand therefor, does not constitute a valid ground for setting aside the verdict of guilty. Pen. Code 1895, § 945.

4. SAME-EVIDENCE-SUFFICIENCY.

The evidence authorized the verdict, and the court did not err in refusing a new trial.

[Ed. Note. For cases in point, see vol. 15, Cent. Dig. Criminal Law, 88 2619-2626; vol. 14, Cent. Dig. Criminal Law, §§ 1409-1419.] (Syllabus by the Court.)

Error from Superior Court, Butts County; E. J. Reagan, Judge.

Tom Fears was convicted of crime, and brings error. Affirmed.

O. M. Duke, for plaintiff in error. O. H. B. Bloodworth, Sol. Gen., and W. P. Bloodworth, for the State.

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

(125 Ga. 415)

WORTHY v. BATTLE et al. (Supreme Court of Georgia. May 16, 1906.) 1. ADMINISTRATORS LIABILITY ON BOND ESTOPPEL.

An estoppel in pais does not arise in favor of the sureties on an administrator's bond when it appears that the heirs at law, after citing him to account for the proceeds of land sold by him at public sale, recovered the land in an action of ejectment brought against the purchaser at the sale, but subsequently lost possession thereof when it was subjected to the demands of a mortgage creditor of such purchaser, as against whom they were estopped from attacking the validity of the administrator's sale, because of their prior election to claim the proceeds of the land.

In a suit against the sureties on the bond of the administrator, prima facie proof of a devastavit committed by him may be made by introducing in evidence the judgment against him (unaccompanied by any part of the record of the proceedings in which it was obtained) and showing by proper entries upon the execution issued thereon that there is no property of the estate upon which to levy. A return of nulla bona reciting that there is no property of the "defendant" to be found is to be construed as meaning that the levying officer can find no property in the hands of the administrator which belongs to the estate of his intestate, not as referring to an unsuccessful search for property belonging to the person named in the fi. fa. in his individual right.

3. SAME PLEA OF PLENE ADMINISTRAVIT OPPOSING EVIDENCE.

When the defendant to such a suit is the legal representative of one of the sureties on the bond, a plea of plene administravit may be met by the introduction of evidence disclosing that the defendant's testator left property which was subject to the plaintiff's demand and which ought to be in the defendant's hands for administration.

[Ed. Note. For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, §§ 1852, 1863.]

4. SAME-PARTIES.

The bare fact that the defendant had also been appointed administrator of the sole beneficiary under the will of the testator and had assumed charge of the assets of his estate in that capacity, not as administrator "de bonis non cum testamento annexo," affords no reason why judgment in favor of the plaintiff should not be rendered against him in that capacity in which he is sued.

5. EVIDENCE-OPINION EVIDENCE-SOLVENCY. Where the issue is whether or not a devastavit has been committed by an administrator, the opinion of witnesses that the estate represented by him was insolvent at the time of the death of his intestate is of no probative value.

[Ed. Note. For cases in point, see vol. 20, Cent. Dig. Evidence, § 2246.]

6. SUBROGATION PAYMENT BY SURETY RIGHTS OF CREDITOR.

Sureties on an administrator's bond cannot, by any private understanding amongst themselves, fix their liability relatively to any person not a party to their agreement. If they agree to discharge the indebtedness of the estate out of their private funds and to waive all right to reimbursement by the administrator, they do not become creditors of the estate by carrying out this voluntary undertaking. But if, after doing so, suit upon the bond is brought against them by the heirs at law, the sureties may set up the equitable plea that but for the payment of this indebtedness the heirs could have hoped to receive little or nothing from the estate, and therefore the fact that they were benefited by the payments of its debts should be taken into consideration in determining how much they really ought to have realized as their distributive share of the assets. The sureties having discharged the indebtedness in order to escape threatened liability to creditors under the bond, the doctrine of equitable subrogation applies in such a case.

(Syllabus by the Court.)

Error from Superior Court, Sumter County; Z. A. Littlejohn, Judge.

Action by R. E. Battle and others against W. B. Worthy, Administrator. Judgment in favor of plaintiffs, and defendant brings erReversed.

ror.