Irving Browne Isaac Grant Thompson.

The American reports: containing all decisions of general ..., Volume 36 online

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company." Id., § 1675, ^1 1, 5.

With these statutory provisions, together with others not neces-
sary to be cited, in force, tlie Fii*st Bryan Baptist Church was in-
corporated by the Superior Court of Chatham county, on the 12th
of February, 1867, on a jxitition or declaration which specified as
the objects of the association, " the more efficient worship of God
the preservation and perpetuation of said church, and the better
control and regulation of the affairs and property thei^eof." Tho
erection of a church -edifice appropriate to the congregation is cer-
tainly within this enumeration, as well as within the general scope
of the powers which should appertain to a religious society, whether
incorporated or unincorporated. And the same may be said of rais-
ing money to pay for the erection. This last was the purpose which
moved the First Bryan Baptist Church to undertake to con-
\h\ct an excursion from Savannah to Beaufort, and to charter a
steamer for the occasion ; there was a debt outstanding, contractctl
for the erection of a new brick church, and the corporation wished to
raise money with which to discharge it. The purpose was a worthy
and laudable one, and as we have said, was within the charter ; but



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SEPTEMBER TERM, 1879. J 19

Harriman v. First Bryan Baptist Church.

the power to raise money for a proper object does not can-y with it
unlimited discretion iis to the means of raising it. Every corpora-
tion must act according to its nature ; a trading corporation must
trade, a man ufacturing corporation must manufacture, a banking
cor}K)ration must bank, a transportation corporation must carry,
and a religious corporation must preach, teach, minister to spiritual
edification, and promote works of mercy and benevolence. A church
incorporated as such cannot engage, even for a day, in merchan-
dising, or in spinning or weaving, or in banking or broking, or in
transporting freight or passengers. It must derive its income, not
^roni tlie conduct of any worldly business, but from such property
^ it muy happen to own, and from voluntary contributions. How-
ever urgent its needs for money, it cannot rent a farm to make a
^^op of corn or cotton, nor a store to buy and sell goods, nor a livery
s^We to let out horses and carnages, nor can it hire a vessel to
transport the public upon rivei*s or the ocean. To charter a steamer,
^ndsell tickets to the public for an excursion, is to enter into the
'^sponsil^ilities and hazards of a business, for gain and profit, not
mention od or hinted at in " the more efficient worship of God, the
preservation and perpetuation of said church, and the better con-
trol and regulation of the property thereof." The adventure, it
seems, i-c3 quired a considerable outlay of church revenue ; two hun-
arfedand sixty dollars for the vessel, and eighteen dollars and fifty
cents foir the necessary printing, advertizing, ice and music. This
capital Aiv as understood to be staked on the success of the ** com-
mittee ** jjj selling tickets ; but perhaps it was not thought of that
each tie\^^|. g^jj ^o^i^j^ jf gQoj [qj* ^ny thing, amount to a contract
on the ji^rt of the church to have the buyer transported to Beau-
lort and back, and that a breach of the contract would subject the
c mrch^ to an action on each and every ticket. What unseemly com-
mo ion 54ctually arose on account of the failure of the expedition
^y '^o gathered from the evidence ; a committeeman on board wag
reatet^0(j with a most profane form of immersion, two or three
8 ^ Occurred, a man was knocked down with a stool, and one
^<>D(i{in cut another with a razor. That church members, in their
personal individual capacity, have the right, if they think fit, to
tr' vip an excursion, as matter of business, for the improvement of
^ ^hurch finances, to charter carriages, ships, or railroad trains
^^T the purpose, and to sell tickets to the public, there is no doubt;
w^t it Beems to us that an artificial entity which the law creates



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120 GEORGIA,



Hill V. State.



under the name of a corporation can do nothing of the kind with-
out the authority to do it is specially granted. We are looking at
transactions which involve business dealings with the public, and
not merely at an excursion undertaken by the congregation for de-
votional exercises, celebrations, or recreation. It may be that the
corporate resources might be drawn upon for an excursion of this
character, and the corporate functions of the church be enlisted in
heading and conducting it Possibly, also, it would be compe-
tent for a church, as a corporation, to hire a vessel to convey
from place to place a company sent out to solicit contribu-
tions for the supply of its wants, or to swells its exchequer-
In this country, all support of religion being voluntary, there can
be no question that solicitation is within the scope of the powers
which every religions corporation enjoys. If a church in Savannah
wanted to employ a vessels to carry a party over to Beaufort to col-
lect funds by contribution, perhaps it might so do. The present
case does not require us to settle this question. What was attempted
was to conduct a day's carrying business with the public, and to em-
ploy a vessel for this purpose. The church was incorporated for no
such end, and as means to the ends for which the corporation was cre-
ated we think the enterprise was neither necessary nor appropriate.
The contract was therefore uUra vires. It follows that there can be
no recovery in this action for the expenses incurred in preparing for
the excursion, nor for the profits lost an account of the failure of
the voyage. The recovery must be limited to the amount paid as
hire for the vessel, with interest upon it
[Omitting minor matters.]



Judgniefii reversed.



Hill v. State.

(63 0a. 578.)

CHminal law — infancy — assault in sport — efuirge as to foto.

An infant, of an age to be responsible for crime, is liable to criminal prosecu-
tion for an injury caused to another by throwing a stone in sport and with-
out malice ; and a charge by the court that if the Jury believe that the
defendant intentionally hit the complainant with a stone, and there was no
legal Justification, he was guilty of assault and battery, and it was their
duty 80 to find, is not error*

*8ee Kant ▼ Com. (89 Podu. St. 53S), 33 Am . Rep. 787; Pttonon ▼. Baffnmr (SOInd. 13Q)«
»Am. Rep. 81



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SSEPTEMBER TERM, 1879. 121

Hill V. State.

CONVICTION of assault and battery. The court charged : '* If
yon believe from the evidence that Willie Hill, the accused^
threw a rock at prosecutor to hit him and did hit him — or he was
the object of his throw, and hit him, and there was no legal justi-
fication, he is guilty of assault and battery, and it is your duty so
to find. But if you believe he did not throw at Hill and hit him,
and that Hill was not the object of his throw — or there was legal
justification, then you would find him not guilty.'^ The court de-
clined to draw any distinction between the throwing of rocks in
anger and the throwing of rocks in sport The opinion states other
facts.

S. B. Spencer, for plaintiff in error.

Howard Van Bf)p9y city solicitor, for State.

Bleckley, J. According to the evidence, a company of boys
attending school were all out in the yard and most of them were
engaged in playing. One (Willie Love by name) did not wish to
play. An attempt was made by some of his fellows to force him
into the sport, as was customary in dealing with a reluctant boy.
One Richardson pulled him away from the fence. Love shoved
Richardson off. The latter then threw a rock and Love dodged it
Whilst Love was in the act of rising from the position which he
had taken to evade this blow, Willie Hill, the accused, threw a rock,
and Love, not seeing it, was hit in the month. If he had seen it
in time he could have dodged it, too. It was a way of playing
among the boys, to throw rocks atone another, and the evidence indi-
cates that dodging was generally expected. Love and Hill were
relatives, and were perfectly friendly. There was no quarrel or
cause of quarrel between them, and never had been. The blow
with the rock split Love's lip and broke one of his teeth.

1. There is no suggestion that the accused was wanting in age
or development, so as to be incapable of committing crime, nor
that the throwing of the stone was involuntary. The sole defense
is, that he threw in sport, without ill-will or anger, and with no
intention to hurt or even hit, relying upon the expertness of his
school-fellow in dodging. It is not shown, however, that he did
not tKrow at the latter, or that he gave any notice or warning so as
to pot him upon guard. Grant that he desired and expected a sue-
Vol. XXXVI — IG



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122 GEORGIA,



Hill y. State.



cessful ** dodge," yet he did not get it, and the other boy was in no
fault in not responding with the anticipated maneuver ; he did not
see the danger. Throwing stones at others for amusement is a
dangerous sport, because the tendency of it is to wound or brulBe,
and thero is no certainty that in a given case the injury will be
slight rather than serious. When one has hurled a stone and
parted with all power over it, the mischief it may do where it strikes
is not matter of calculation, but in a great degree of mere chance.
Life itself is not safe where stones are flying about, even though
they be thrown by a boy. In the present case, if death liad ensued
the offense would have been manslaughter at the least. "So,
throwing stones at another wantonly in play, being a dangerous
sport, without the least appearance of any good intent, or doing
any other such idle action as cannot but endanger the bodily hurt
of some one or other, and by sucli means killmg a person, is man-
slaughter." Whart. Horn., § 1G2. ** Where unsuitable and deadly
weapons are used in lawful games, the act itself becomes unlawful."
Whart. Horn., § 470; 1 Hale's P. C. 472, 473. ''If when engaged in
an unlawful or dangerous sport, a man kill another by accident, it is
manslaughter * * * Death produced by practical joking is man-
.shiughter." 2 Whart. Cr. Law, g 1012. In Sludstill v. Siate, 7 Ga.
2, a boy was shot at the distance of two hundred yards, with an old
gun which some of the sporting party said would not hit him at
fifteen steps, and the shooting was done when *' they were all in a
laugh." This court said, on page 13, "Xor can we sanction the
position assumed by counsel, that owing to the distance it was im-
probable that the ball would reach its object ; and that, conse"
quently, the killing is reduced to involuntary manslaughter. Can
he who takes deliberate aim at another with a rifle, and kills him,
be said not to have intended it? We think not He might, it is
true, suppose tlie chances to be against it; still he puts forth all
his skill to reach the mark and he succeeds. It is enough, as the
act itself was unlawful, if the killing was the possible consequence
of the act. To hold otherwise would be to trifle with human life.'>
For boys to throw at one another stones of a size and weight to
lacerate lips and break teeth, is not innocent play, but wild and
wanton mischief, and if they are of responsible age and average
mental capacity, they must answer for the consequences of their
reckless conduct It is good for the young to engage in rough and
hardy sports, but the State cannot permit her children to beat and



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SEPTEMBER TERM, 1879. 123



Hill V State.



batter one another, even at school, with atones or other dangerous
missiles. Bad boys should bo made to understand that they are ac-
countable to the law, as well iis to parents and teachers, for throw-
ing rocks and thereby inflicting personal injuries.

2. It is insisted by counsel for plaintiff in eri^or, that even
granting the law to be as we have laid it down, the court erred in
charging the jury that if a given state of facts should, by them, be
found to exist, the accused -was guilty, and it would b6 the duty of
the jury to find him guilty. The obnoxious language is set out in
the second ground of the motion for a new trial, as numbered in
the reporter's statement. Formulated in a general proposition, the
substance of the charge complained of is this : If one throw a rock
at another to hit him, and do hit him, or if one throwing a rock
make another the object of his throw, and hit him, witliout legal
justification, the thrower is guilty of an assault and battery, and
it is the duty of a jury tryinghim for the offense to find him guilty.
The entire chai-go is not in the record, and we must assume 'that
the court gave proper instructions as to reasonable doubt, time,
phice, etc. There is no suggestion that the charge was deficient in
these particulars. The specific objection to which our attention is
directed is the stating that the enumemted acts would render the
accused guilty, and that if they were committed, the jury should
so fiud. lu Pennaman v. StatCy 58 Ga. 330, this court approved a
charge, to the effect following ; If all the allegjitions in an indict-
ment for perjury be true beyond a reasonable doubt — if the ac-
cused, in making an affidavit to have the prosecutrix arrested
on a warrant for assault and battery, did willfully, knowingly,
absohitely and falsely swear in said affidavit, as he is alleged to have
clone in the indictment, the jury should find him guilty of i>erjury.
The charge applied directly to the specific facts alleged in the in-
dictment, and embraced the whole of them. For that reason it
was pronounced correct. In the present case the indictment is less
specific; an indictment for perjtiry sets out the identical transac-
tion Y/hich has to be proved, but an indictment for assault and bat-
tery is expressed in more general terms, and simply alleges that on
agivcnday, in the county, the defendant, with force and arms,
oommitted an assault upon another named person, and then and
thera unlawfully beat, bruised and ill-treated him. The exact
manner and means of the battery are left to be developed by the
evidence. A battery may be committed in ways innumerable, and



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124 GEORGIA,



Hill V. Sute.



the indictment will ax)plj to one way as well as another. Now^
when the whole of the evidence is direct, as it was in the present
case, and the court, not saying to the jury what is proved or not
proved, groups together from the evidence enough facts to consti-
tute an assault and battery, and tells the jury that these facts if
estabhshed render the defendant guilty, and the jury ought to find
him guilty, the substance of the instructions differs not in princi-
ple from the charge in Pe^maman v. State. It is unquestionably
true in law that certain acts will constitute an assault and battery
within the scope and legal meaning of an indictment for that of-
fense, and if they are indicated by the evidence, and their existence
or non-existence be referred to the jury, the impropriety of telling
the jury, that in case they are proved the defendant should be
found guilty, is no greater than to tell them, that if the charges in
an indictment for perjury be proved, a verdict of guilty should be
rendered. There is a wide difference between resting the result of
a trial upon facts which legally constitute the offense charged, and
making it turn upon other facts which are merely evidence of the
constituent facts. To illustrate this I will endeavor to point out
the real error which the charge contained in Parker v. State, 34
Ga. 262, and also in Tv^ker v. State, 57 id. 503. The doctrine of
the charge in the former of these cases was this : If a mule be sto-
len and a given person be, next day, seen in possession of him, rid-
ing liim, and the same person cause him to be sold at auction as
his property, and receive pay for him, and afterward voluntarily
give his note for the amount to the purchaser, the latter having
surrendered the mule to the true owner (the individual from whom
he was stolen), such person is, under the law, guilty of stealing the
mule, and the jury trying him for the larceny ought to find him
guilty. It will be seen that the various enumerated facts do not
constitute larceny by the accused, but are only evidence of it, and
the vice of the charge is that the court drew the inference of guilt
and directed the jury to adopt that inference (in case the eviden-
tiary facts were proved), instead of merely telling them that they
were authorized to infer guilt and might find accordingly. The
erroneous part of the chai'ge in Ticcker^s case was to this effect:
If goods be stolen from a vessel and a portion of them be found at
the very time or immediately afterward in the possession of a given
person, the law presumes that he is the guilty party, and when
tried for the larceny the burden of proof is upon him to show that



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SEPTEMBER TERM, 1879.



125



Hill V. State.



he obtained them honestly, and if he fail in this the jury should

find him guilty. This charge, like that in Parker's case, deals

only in facts of evidence (indirect or circumstantial evidence), and

proceeds to a virtual dictation of the conclusion which the jury are

to draw, leaving the jury no freedom except to find whether the

enumerated circumstances had been proved or not, and whether the

accused had rebutted in the way declared requisite. Abstractly

considered, the one exclusive mode of rebutting which the charge

points out, namely, to show that the accused obtained the goods

honestly, is altogether too restrictive. He might have obtained

them very dishonestly, as by cheating the real thief out of them, or

by receiving them knowing them to have been stolen, and this

would have been a good accounting for his possession. But the

great error of the charge lies in treating the presumption of guilt

as one of law, and in saying that the jury should, instead of saying

that they could or might find the accused guilty upon it. '* The

presumption is not one of law but of fact." 1 Whart Cr. Law, §

729; 3 Grci'nl. Ev., § 31; Hall v. Slate, 8 Ind. 439; State v. Hockey

50 Ih. H. 510; Stover \. People, 66 N. Y. 315; Graves v. State, 12

^Vis, 501; Crillei/ v. State, 20 id. 231. If the third head-note in

Parher^s case and the corresponding one in Tucker's be confined to

cases of indirect or circumstantial evidence, and to the charge

upon that evidence (and this, though less than the scope of their

letter, is all the scope the facts on which they are based will war-

^nt), I think they are perfectly sound. I am satisfied that a capi-

^Ipart of the error in Tucker* s case was in classing the presump-

tion of guilt which arises from the possession of stolen goods with

f^siuiiptions of law, rather than with presumptions of fact. In

cnat case the presumption, it is true, was very powerful, but it was

°^ the jury, not for the court

-^turning now to the case at bar, nothing is more obvious than

*^ it has no resemblance to either of the two just discussed. They

^^ cases of circumstantial or indirect evidence on the main point

^ Controversy, whereas this is a case of direct evidence on every

l^^t. In them the hypothesis of guilt was built, in the charge to

^ jury, not npon facte which would necessarily involve guilt, but

^poti facte from which guilt was only inferable. In this case the

^^umerated facte made guilt with absolute certainty; for taking

^^ftt we haye ruled under the first head of this opinion, it fol«

wwa neoeBsarily that if one throw a rock at another to hit him.



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126 GEORGIA,



Harris v. Tyson.



and do hit him, or if one throwing a rock make another the object
of his throw, and hit him, without legal justification, the thrower
is guilty of an assault and battery. It seems quite certain that the
charge was not erroneous ; but did we so consider it we should do
as was done in both Parker v. JSiate, and Tucker v. State, that is,
affirm the judgment, the evidence being beyond all question suffi-
cient, and the yerdict indubitably correct

JudgineiU affirmed.



Harris v. Tyson.

(88aa.fl29.)



AhatemerU — action of breach of marriage promise — right of eamud to earrjf

on for fees.

An action for breach of promise of marriage abates by the marriage of the
parties, and the counsel for the plaintiff cannot prosecute it under a statute
giving him a lien for feep.

ACTION for breach of promise of marriage. The opinion states
the facts. The defendant had judgment below.

Ooodyear £ Harris and Mahry <& Crovatt and W, •/. Williams^
for plaintiff in error.

Symmes S Atkinson and S, W. Hitch and Ira B. Smiih, for de«
fendant.

Jackson, J. This suit is for breach of promise of marriage
brought by an infant in her own name. It was demurred to on the
ground that the action must bo by guardian or next friend, and the
court so ruling, the declaration was amended by setting out that
since the beginning of the suit the parties had intermarried, and
the counsel proposed to carry on the case to trial so as to recover
fees under our statute giving them a lien for fees. On demurrer
to the declaration so amended, and in the face of the statement of
counsel in their places that fees were due to them by plaintiff, and
that they demanded the right to prosecute for those fees, the
court sustained the demurrer and dismissed the sait^ and the
counsel excepted.



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SEPTBMBEB TERM, 1879.



127



Harris v. Tyaoii.



There is no doubt that under onr statute in ordinary cases, such

as suits for money or for property, counsel would have the right to

prosecute for fees. Code, § 1989; Twiggs v. Chambers, 66 Ga. 279;

Ookmary v. Ryan^ 58 id. 132, but this action is for a personal

^JVDg^ and though on breach of contract, it is a personal action,

and would not survive to the personal representative. 1 Chit. PL

20-68 - Oliamberlain v. Williamson^ 2 M. & S. 408; Latiimore v.

BmmoTxs^ 13 S. & R. 183.

If this woman had died, the action for breach of promise would
have die<3 too; and when she married the defendant, she lost the
nght to prosecute the case just as effectually as if she were dead.
The broach was healed and the debt paid, or released. Code, § 2863-
li it be said that the counsel might go on still, because they had
a vested right and lien on the suit for their fees, the reply is, that
the only right they had was dependent on the contingency of her
deata or marriage ; that this entered into the contract and lien, and
made part of it; that they were bound to know the law, especially
as they ^^.^ lawyers, and that therefore their contract is not violated,
l^sides, the whole spirit and policy of our law favors marriage,
volnntar-y marriage, and all contracts militating against it, and even
^ » ftr-e null and void. To enforce this claim of counsel would
destroy ^jj^ confidence between man and wife, mar the peace of
famiUes^ and tend to crumble to atoms the corner-stone on which the
whole tabric of Christian civilization reposes. Code, §§ 1697, 2272,
3^^^» 4371.

AUasmnch therefore as plaintiff's counsel could not amend un-
J^^ ^^ction 3263 of our Code by inserting some guardian or next
™^d as plaintiff", and when they did amend by setting out the
'"^"^^ge of plaintiff with defendant, inasmuch as they thereby
* ^^e4 that her cause of action for breach of contract to marry
^^ gone, as completely as if she were dead, it not surviving, the
^^"^^rrer was properly sustained and the case legally dismissed.

Judgment affirmed.



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128 GEORGIA,



Melson ▼. DickBon*



Melson y. DicKSOK.

(680A.68S.)

JuToT — related to eaun$el Tutting pecuniary interest in recovery^ ineompetmU.

V juror who would be incompetent bj relationship to a partjr, Ib equallj in-
competent if he sustains the same relationship to counsel whose fees de
pend upon the recovery.

ACTION oT trespass. The opinion states the facts. The
plaintiff had judgment below,

L. B, Ray, Samuel Freeman and J. K. Boon, for plaintiff in

error.

Davis S Brewster and Jno, S. Bighy, for defendant.

Jackson, J. This was an action of trespass qtiare dausum
fregil, wliere the jury found for the plaintiff, and the defendant
moved for a new trial, which was refused, and he excepted.

1. The brothers and cousins of the counsel, whose contract en-
titled them to part of the recovery, and who, under our Code,
have a lien for their fees on the suit and the judgment, should have



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