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Jones vs. Lavender.

issue in that suit; and the question of damages claimed for the same wrong and injury, because of the same act and deed of defendant, was passed upon by the jury and a verdict was rendered for defendant; and that there has been no new or additional trespass, or any other act or deed by the defendant, not complained of and made the matter in issue in the former suit, by which plaintiff has been injured or damaged, from the date of the rendition of the verdict in that suit up to the commencement of this present action.

To this plea, and also to the original special plea, the plaintiff now demurred, and the demurrer was overruled.

At this point, the plaintiff moved to continue the case, on the ground of surprise by the amendment, his counsel stating in their place that they were surprised by the amended plea and not prepared to meet it; that they desired time to prepare with evidence and authorities; that they could not say to what extent they would be able to meet the amended plea with evidence showing acts of trespass since the verdict in the former suit; but they were surprised; had not anticipated such a plea, and were not prepared to go on. The court refused the continuance.

The plaintiff then introduced in evidence the record of a suit between the same parties touching the same general matter, prior to the suit shown by the defendant's evidence, in which the plaintiff recovered damages by a verdict rendered at March term, 1871.

The court charged the jury that the verdict for defendant in the former suit was conclusive upon the plaintiff, if the acts of trespass complained of in that suit were the same as those now complained of—that is, if no new acts of trespass are complained of; the legal effect of that finding being that said acts do not amount to a trespass. Under this charge the jury rendered a verdict in favor of the defendant.

The errors assigned are the admission in evidence of the record of the former suit; the overruling of the demurrer to the original and amended plea ; the refusal to grant the motion for continuance; and the charge of the court.

Adams vs. Goodrich.

The head-notes present the views of the court on these various exceptions. We sustain the judge in everything but his charge; but the charge, we think erroneous, as concentrating too much on acts of trespass without explanation of what wonld amount, in contemplation of law, to such acts. The charge, as given, would be apt to direct the minds of the jury to the positive act of making the dam or raising it higher ; whereas, all that might have occurred prior to the former suit and still no water have been thrown back upon the plaintiff so as to damage him. Maintaining the dam after that suit may have caused the channel to fill with earth or sand so as to cause higher water after the suit than before, and thus damage the plaintiff; or some damage may have occurred by the fall of heavier rains after than before, even with the same depth of channel. What the defendant testified to would seem to negative all this in respect to the period of time after the trial of the former suit, but not necessarily as to the time between the commencement of that suit and the trial thereof. At all events, the continuance of the state of things which the defendant's acts established was a vital element of the case, and the jury should have passed upon the evidence and determined whether or not any damage resulted to the plaintiff therefrom by either a permanent or temporary increase in the height of the water at any time between the bringing of the former action and the commencement of that on trial.

Judgment reversed.

55 233 108 411

WILLIAM R. ADAMS, plaintiff in error, vs. WILLIAM H.

GOODRICH, defendant in error,
A laborer, though a mechanic, who performs actual manual labor for his em.

ployer, is entitled to a laborer's lien on the property of the latter.

Laborer's lien. Mechanic. Before JOSEPH GANAHL, Esq., Judge pro hac vice. Richmond Superior Court. April Term, 1875.

VOL. LV. 16.

Adams vs. Goodrich.

Reported in the decision.

John S. & William T. DAVIDSON, for plaintiff in error.

W. H. Hull; FRANK H. MILLER, for defendant.
WARNER, Chief Justice.

This was a proceeding to foreclose a laborer's lien under the provisions of the 1974th section of the Code. It appears from the affidavit of the plaintiff and the evidence in the record, that he is a laborer and mechanic, that he was employed by the defendant, who was a contractor and builder, to work for him at $2 25 per day, payable weekly, and that defendant was indebted to him $18 95, for manual labor performed by him in sawing and dressing lumber, etc. The court charged the jury, “that the plaintiff, Adams, was a mechanic, and not such a laborer as was entitled to a lien upon the property of his employer which could be foreclosed upon his own affidavit, under the law providing for the foreclosure of laborer's liens." To which charge the plaintiff excepted.

In our judgment, the court erred in its charge to the jury on the statement of facts disclosed in the record. Although the plaintiff was a mechanic, he was a laborer within the true intent and meaning of the statute, and was entitled to a lien on the property of his employer. A contractor may be a mechanic, but if he does not perform manual labor, he is not entitled to a laborer's lien on the property of his employer. So a laborer may be a mechanic, and if he performs manual labor as such mechanic, he is entitled to a laborer's lien on the property of his employer. A laboring mechanic who performs actual manual labor for his employer, is as much entitled to a laborer's lien on bis property for the value of the labor performed by him, as any other class of laborers. There is no dispute that Adams, the plaintiff, performed the actual manual labor for his employer for which he claims a laborer's lien under the statute. The fact that he was a mechanic at the time he performed that manual labor, does not make him

Puckett vs. Roquemore. any the less a laborer within the true intent and meaning thereof. Laboring mechanics who perform manual labor for their employers, are embraced within the true intent and meaning of the statute as are any other class of laborers.

Let the judgment of the court below be reversed.

55 235 77 619

GREEN PUCKETT, plaintiff in error, vs. John ROQUEMORE,

defendant in error.

1. If one indicted for larceny voluntarily repay the sum alleged to have been

stolen, without any unlawful agreement, he cannot recover it back, though

he be afterwards tried on the indictment and acquitted. 2. If the repayment be made upon an illegal agreement that the prosecution

shall be settled or discontinued, the bargain is corrupt, and for that reason the money cannot be recovered back. The law will leave the parties where it finds them.

Contracts. Illegal consideration. Criminal law. Before Judge HALL. Newton Superior Court. March Term, 1875.

The principles of law covered by this decision are sufficiently clear without a report of the facts beyond those embraced in the opinion.

SUMMERS & MIDDLEBROOKS, by brief, for plaintiff in error.

John V. WOODson, by brief, for defendant.

BLECKLEY, Judge.

1. When a person is indicted for stealing money, he may make restitution. If he be guilty, he is under both a civil and moral obligation to do so. He can be sued for it, and compelled to refund. If he be innocent, he may, nevertheless, waive the question of guilt or innocence, and make voluntary payment. Trial and acquittal afterwards will not entitle him to recover it back; if he meant to stand upon that issue, he ought to have done so at first, and refused to pay.

Cory vs. The State of Georgia.

In the present case there was no duress or fraud; the party seems not to have been in custody, but free; and it appears that the proposition to settle came from himself. Upon the supposition that he paid without any unlawful agreement, there is no ground on which he can reclaim the money, although he has since been acquitted of the charge. Perhaps his acquittal may be due to the fact that he extracted from the prosecution all its vigor, by soothing the prosecutor with this repayment, and lulling him into inaction.

2. If the money was paid on an illegal agreement that the prosecution should be settled or discontinued, or even that the prosecutor should use his influence to have it suppressed, the party is equally without remedy. In contemplation of law such a contract is vicious and corrupt, and both parties are at fault, in pari delicto. The law leaves them where it finds them—in the bed which they have made for themselves they must lie,

Judgment affirmed.

PHILIP D. CORY, plaintiff in error, vs. THE STATE OF GEOR

55 236 56 201

GIA, defendant in error.

1. The Freedman's Saving and Trust Company, incorporated by act of con

gress, and located in the city of Washington, is not a bank or corporate

body in this state, within the meaning of section 4421 of the Code. 2. A person indicted as the cashier of the branch office of said company in

Atlanta, Georgia, no law of the United States nor of this state having authorized the establishment of the branch in Georgia, cannot be convicted

of the crime of embezzlement under said section 4421 of the Code. 3. Where the transcript of the record shows a second count for larceny after

a trust, framed on section 4422 of the Code, but shows that count to be bad as it charges the offense to have been committed with the consent, when it should have been without the consent, of the owner; and where the mis. take in the transcript, if there be a mistake, has not been properly corrected, this court cannot resort to the second count, thus apparently defect

ive in the record here, to sustain the verdict and judgment below. 4. The proper time to correct a mistake in the transcript of the record is on

or before the calling of the case on the docket, and the proper mode is by

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