Burress & Dillard, of Atlanta, for defendant in error.

[2, 3] 2. A note voluntarily given in liquidation of a disputed claim is not without consideration, Stewart v. Hardin, 24 Ga. App. 611 (2), 101 S. E. 716 (2); but if the plea shows that such was not the purpose and in

STEPHENS, J. 1. This case is controlled by the decision in Le Bron v. Stewart, 105 S. E. 650.

Judgment affirmed.

JENKINS, P. J., and HILL, J., concur.

(26 Ga. App. 74) TAYLOR v. STATE. (No. 11847.)

it was a mere nudum pactum, the defendant owing nothing to and receiving nothing from the plaintiff, and the plaintiff parting with nothing, the contract would be void, because lacking in consideration, and the defendant would be entitled to set up and prove such a defense.

[4, 5] Even were the contract founded upon a disputed claim or other valid consideration, the free assent of the parties being essential to a valid contract, it would not be enforceable if the maker was induced to sign the instrument under actual duress, by means of which his free will was restrained and his consent thus obtained. In this case, it appearing by the plea that the maker of the note was induced to sign the instrument in order to suppress a prosecution for an actual and stated criminal offense, which the plaintiff represented he was then and there about to institute under the advice of the prosecuting attorney already obtained, it became a question for the jury whether under such circumstances the instrument was freely and voluntarily signed, or whether it was obtained by means of duress. Lucas v. Castelow, 8 Ga. App. 812, 815, 70 S. E. 184; Bond v. Kidd, 1 Ga. App. 798, 57 S. E. 944; Civil Code 1910, 8 4255. The judge of the superior court did not err in sustaining the certiorari, and in holding that the plea was not subject to general demurrer. Judgment affirmed.

STEPHENS and HILL, JJ., concur.

(26 Ga. App. 133)

MARTIN v. STEWART. (No. 11560.) (Court of Appeals of Georgia, Division No. 2. Jan. 20, 1921.)

Dec. 16, 1920.)

(Syllabus by Editorial Staff.)

1. Witnesses 255 (10)-Witness properly permitted to state what he sold defendant after refreshing memory from itemized statement.

In a prosecution for fraudulently obtaining goods in which itemized statement of goods sold to defendant was taken from books and attached to accusation, seller as witness after tify that he sold the goods mentioned as against refreshing memory from statement could tesobjection that original books were best evidence.

memory

2. Witnesses 255 (5)-Refreshing from statement attached to accusation not error.

In a prosecution for fraudulently obtaining goods in which itemized statement of goods sold to defendant was taken from books and attached to accusation, seller as witness could refresh his memory as to the sales by referring to the statement, though the original books were not in court; witness testifying of his own knowledge after refreshing recollection. 3. False pretenses 38-Instrument promising to pay for goods sold with reservation of title and mortgage held admissible under accusation.

In a prosecution for fraudulently obtaining goods in which accusation recited that defendant mortgaged to seller of goods and created a lien thereon, admission in evidence of a written instrument promising payment for the goods sold and reciting reservation of title as to such goods and mortgage on other property was not error as constituting a variance because the accusation contained no allegation of reservation of title.

4. False pretenses 38-Admission of writ. ten instrument promising payment for goods sold reserving title and mortgaging property held not variance.

In a prosecution for fraudulently obtaining goods in which accusation recited that defendant mortgaged to seller of the goods and

Action between B. F. Martin and J. A. Stewart. Judgment for Stewart, and Martin brings Affirmed.

error.

other property, admission of evidence of written instrument promising payment and reciting that title was reserved to the goods sold and a mortgage on such goods and three hogs, de

Error from City Court of Tifton; Jas. H. Price, Judge.

Noah Taylor, alias Hardy Maddox, was convicted of fraudulently obtaining goods, and he brings error. Affirmed.

A motion for a new trial was made on the following grounds:

(1) Because the court erred in admitting testimony of witness Lindsey to effect that he sold the defendant the goods mentioned in the itemized statement attached to the accusation, the quantity and value of which he did not remember without refreshing his memory from the statement, and his further testimony on his own knowledge, after refreshing his memory from the statement, that he sold all the goods referred to in the statement. The witness stated that the itemized statement was made by him from the original books of the partnership from which defendant was accused of having fraudulently obtained the goods, but that the original books were not in court. Objection was made to this evidence on ground that original books were the best evidence and on ground that witness should have refreshed his memory from orignal books and not the itemized statement.

(2) Because court erred in admitting written instrument signed by defendant reciting that defendant had purchased from S. G. Lindsey & Co. one Jersey cow and one heifer, and that defendant was indebted to the company in sum of $27.50, which he promised to pay, and it was agreed that title was to remain in company until payment and for security defendant mortgaged above-described property and three hogs describing them. Objection was made to introduction of instrument on ground that accusation contained no allegation that defendant executed and delivered any instrument reserving to or conveying to the company title to a cow and heifer and because admission of instrument was a variance in that proof showed no

mortgage of cow and heifer but a mortgage

of the hogs alone.

(3) Because the state failed to prove its case as laid, in that defendant was charged with having mortgaged a cow, a heifer, and three hogs, whereas the evidence showed that defendant did not mortgage the cow and heifer but mortgaged the hogs alone.

-Statement by Editor.

Fulwood & Hargrett, of Tifton, for plaintiff in error.

J. S. Ridgdill, Sol., of Tifton, for the State.

BLOODWORTH, J. [1-5] There is no merit in any of the grounds of the amendment to

the motion for a new trial; there is ample evidence to support the verdict, the trial judge has approved it, and this court has no authority to interfere. Judgment affirmed.

BROYLES, C. J., and LUKE, J., concur.

(26 Ga. App. 253) CARTER v. STATE. (No. 11686.) (Court of Appeals of Georgia, Division No. 1. Jan. 28, 1921.)

(Syllabus by Editorial Staff.)

1. Criminal law 369 (6)-On trial for selling whisky admission of evidence as to stills near defendant's home not error as limited.

On a trial for selling whisky, the admission of evidence that stills had been found near where defendant lived was not ground for a new trial when limited to showing "what it may with regard to his having the liquor that they claim he got somewhere; that it was his and somebody else's," where defendant testified that he never sold any whisky because he had nothing to make any out of and would not know how to make it if he did, and other testimony as to the existence of stills near his house was admitted without objection.

2.

Criminal law 762 (3)-Instruction as to purpose for which evidence was admitted held not expression of opinion.

On a trial for selling whisky, an instruction that evidence of stills around defendant's house was admitted as a circumstance "showing what it may with regard to his having the liquor that they claim he got somewhere, that it was his and somebody else's," and that "I don't state anything about what is proved or anything of that kind, nothing as to what the proof is," was not an intimation or expression of opinion as to what had been proved. 3. Criminal law 822 (6)—Instruction as to what would constitute sale of whisky not erroneous in connection with entire charge.

On a trial for selling whisky, an instruction that, when the state had shown that liquor was delivered and the price agreed upon, that would complete the sale, irrespective of whethbeen some evidence admitted about a check er anything was paid or not, and that there had which the jury would consider, held not erro

neous when considered in connection with the entire charge.

4. Criminal law 1169 (5)-Evidence that whisky was paid for with check not erroneous in view of instruction.

On a trial for selling whisky, the admission of evidence that the whisky was paid for by a check was not erroneous, where the court charged that he had not allowed the contents of the check to be gone into, and that, whether a check passed or not, if the jury were satisfied that defendant delivered the whisky and that a price was agreed upon between him and the purchaser, that completed the sale. Bloodworth, J., dissenting.

Henry Carter was convicted of selling whisky, and he brings error. Affirmed.

You will consider that evidence. I have not allowed the contents of the check to be gone into, for it was not insisted by the state that they have accounted for its nonproduction. whether there was a check passed or whether there was not a check passed, if you are satis

But,

BROYLES, C. J. [1] 1. The defendant was charged with selling whisky. Several grounds of the amendment to the motion for a new trial complain that the court allowed, over the objections of the defendant, two named witnesses to testify to the fact that "stills" had been found near where the defendant lived. In admitting this testimony the court specifically instructed the jury as follows:

"I have admitted the evidence of the stills around the defendant's house as a circum

stance, showing what it may, with regard to his [defendant's] having the liquor that they claim he got somewhere; that it was his and somebody else's. I don't state anything about what is proved or anything of that kind, nothing as to what the proof is."

The defendant in his statement to the jury had said that he never sold any whisky, because he had nothing to make any out of, and would not know how to make it if he did. Furthermore, another witness testified, without any objection being interposed, as to the existence of stills near the defendant's house. Under these circumstances the admission of the evidence objected to does not require a

new trial.

[2] (a) The court in the instruction to the jury just quoted did not intimate or express an opinion as to what had been proved in the case.

[3] 2. When considered in connection with the entire charge, there was no error, for any reason assigned, in the following excerpt from the charge:

"When the state shall have shown you that liquor was delivered and a price agreed upon, I charge you that would complete the sale, irrespective of whether or not there was anything paid at all for it. If the liquor was delivered and a price agreed upon between the parties, that constitutes a sale under the law,

and if any money was not paid, nor anything else of value, it would be a complete sale. There has been some evidence admitted about

a check, not the contents of the check, but about a check, and that it was delivered. You will consider that evidence."

[4] 3. The court did not err in allowing witnesses to testify, over the objections of the defendant, that when the defendant sold the whisky he was paid with a check, the court instructing the jury as follows:

"There has been some evidence admitted

that the defendant delivered the whisky and that a price was agreed upon between him and the purchaser at the time, as I have charged you, that would complete the sale, whether there was a check passed or whether there was not a check passed or whether there was any money paid or not."

4. The verdict was authorized by the evidence, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

LUKE, J., concurs.

BLOODWORTH, J. (dissenting). I cannot agree to the majority opinion in this case. The record shows that the sheriff, over proper and timely objections, was allowed to testify that he had destroyed two stills in the locality in which the accused lived, and that at one he had destroyed "thirteen or fourteen stands of beer," and this still was shown to have been within 15 feet of land which accused was cultivating and where he had been recently plowing. At the other still and from this one "the path led in the direche destroyed "two or three stands of beer," tion of Henry Carter's house." The sheriff also gave other details about the stills. It is not shown when these stills were destroy

ed. It is true that another witness testified without objection:

"I live about a half mile from where they say they got the stills. There are several * He lived a still places over there. half mile from where the still was."

*

2. Parties95(2)-Amendment so as to sue for wife's use permissible.

Where a suit for rent is instituted by the party with whom the actual contract of tenancy was made, it is permissible for him to amend the petition by setting out the name of the true owner for whose use the suit is brought. The rule would be otherwise, and such an amendment not be permissible, where the plaintiff has no right of action in himself; as where the contract was made by the plaintiff, not in his own behalf as landlord, but merely as an agent of the true owner. State v. Bank of Quitman, 117 Ga. 849, 45 S. E. 236; Terrell, v. Stevenson, 97 Ga. 570, 25 S. E. 352 (1). Since the evidence authorized the conclusion that the plaintiff contracted with the tenant in his individual name as landlord, and was not acting merely as the agent of his wife, the suit was maintainable as originally brought; nor was its true character, so far as the defendant is concerned, in any wise altered by the allowance of the amendment.

On Motion for Rehearing.

3. Husband and wife 138(2)—Evidence held to show plaintiff contracted as landlord and not as agent for his wife.

The judgment of the municipal court was authorized by the evidence, and the judge of

the superior court did not err in overruling the

certiorari.

(Additional Syllabus by Editorial Staff.) 4. Pleading 426 (2)-Party amending to meet ruling waives objection that amendment was not necessary.

When a party submits to a ruling on pleadings by filing an amendment to meet an objection raised thereto, he waives his right to complain that the amendment was not necessary. 5. Pleading 426 (2)-When amendment was unnecessary, but plaintiff proved case as amended, it was immaterial whether the amendment was voluntary.

Where plaintiff, suing for rent, leased the premises as landlord and not as his wife's agent, as he might sue either in his own name or for the use of his wife, it was immaterial wife's use was voluntarily made or not, the case having been proved as amended, and the rule that a party amending to meet an objection to the pleading waives his right to complain that the amendment was not necessary had no application.

whether an amendment so as to sue for his

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Action by W. B. Long, for use, etc., against J. G. Clark. Judgment for plaintiff, and defendant brings error. Affirmed.

On Motion for Rehearing.

JENKINS, P. J. Counsel for the plaintiff in error files his motion for rehearing in this case, the contentions being, in substance, as follows: (1) That the evidence does not authorize the conclusion that Long acted in his individual capacity as landlord in entering into the rent contract with the tenant Clark; and (2) that the trial judge having ruled that the suit as originally instituted in the plain. tiff's individual name was not maintainable, and Long having submitted to that ruling and having sought to conform thereto by amending his suit so that it would be maintained in his name for the use of the true owner, he thereby became bound by the ruling, even if erroneous, and could not be heard to complain of it here, even had exceptions been entered (as was not the case) upon the ruling to which he had thus submitted. He cites as authority for this proposition the following cases: Rome R. Co. v. Thompson, 101 Ga. 26 (11), 32, 28 S. E. 429; Glover v. Ry. Co., 107 Ga. 34, 32 S. E. 876 (3); Morris v. Wofford, 114 Ga. 935, 41 S. E. 56 (1); Waller v. Clarke, 132 Ga. 830 (3), 833, 64 S. E. 1094; Ry. Co. v. Waldo, Adm'x, 6 Ga. App. 840 (1),

842, 65 S. E. 1098.

[3] We think that the holding of this court to the effect that "the evidence authorizes the conclusion that the plaintiff contracted with the tenant in his individual name as landlord" is amply authorized by the evidence shown in the record. As is pointed out by counsel in their motion for rehearing, and as was intimated by this court in what was said in the first headnote of the opinion, we think it plainly apparent that the actual title to the premises was in the wife of the plaintiff, and it also seems clear that the defendant Clark was aware that such was the fact. It does not appear, however, that the contract involved in the litigation was entered into for her and in her name by Long as agent. On the contrary, the evidence not only authorizes the conclusion, but seems to show, that Long, acting for himself as landlord, rented the land to Clark as tenant. In his evidence he speaks of what was offered to him as rent and of what he rented it for. In one place he testifies:

"My father willed the land to my wife and she owns it. My wife authorized me to rent it. I was to settle with her and pay her the proceeds of what I got out of it."

The fact that he swears that he had au

JENKINS, P. J., Judgment affirmed.

STEPHENS and SMITH, JJ., concur.

[4, 5] It is well settled that where a party submits to a ruling on pleadings by filing an amendment to meet an objection raised thereto, he waives his right to complain that the amendment was not necessary (Glover v. Ry.