After the jury have dispersed, with the prisoner's consent, leaving the verdict with the foreman, to be returned by him into court, it is not indispensable that the prisoner should be present when the act of return takes place in pursuance of the consent; and though he be confined in jail at the time, the verdict will not, on that account, be illegal. (See note, p. 394.)

ONVICTION of assault with intent to murder.

CONVE

Motion for a

new trial was overruled, and defendant excepted. The remaining facts appear in the opinion.

W. A. Hawkins, J. R. McClesky, Simmons & Simmons, for plaintiff in error.

C. B. Hudson, solicitor-general, and B. P. Hollis, for the State. BLECKLEY, J. 1. There was a consent for the jury to disperse after the verdict was agreed upon, and for the verdict to be returned into court by the foreman next morning. This, in effect, was to bring the trial to an end when the jury made a verdict and separated. 49 Ga. 458. From that time forth, the strict legal harness was off, and the consent was to have its consequences, one of which was, that the right to poll the jury was gone. 6 Ga. 458; 36 id. 380. The waiver of that right was a necessary incident of the consent, after the jury had separated in pursuance of instructions from the court, founded on the same. It was, doubtless, an irregularity to receive the verdict in the absence of the prisoner. He ought to have been brought from the jail, so as to be present at the reception. But we think it was merely an irregularity, and that no matter of substance was involved. Having surrendered his right to poll the jury, no other of any value to him remained, for the exercise or protection of which his presence was important. Had he been in court, the result must have been the same as it was. Nothing took place in his absence, but the mechanical act of receiving the verdict, as the consent had provided it should be received. If VOL. XXVII - 50

Shepperd v. The County Commissioners of Sumpter.

he had been present, the act would have been no less mechanical. In Nolan's Case, 53 Ga. 137; 55 id. 521; 21 Am. Rep. 281, the event contemplated did not happen.

[Omitting minor points.]

Judgment affirmed.

NOTE BY THE REPORTER.-See State v. White, ante, p. 137. In Lynch v. Commonwealth, 6 W. Not. Cas. 392, it was held not to be ground for an order in arrest of judgment that the defendant in an indictment for larceny, who was out on bail, failed to appear upon call when the jury returned with their verdict, and that the verdict was received and sentence pronounced in his absence. AGNEW, C. J., who delivered the opinion of the court, reviewed the history of the criminal law of the State relating to larceny, and showed that that offense was not "one of those offenses which in this State were tried in the solemn forms of the court of England required by the act of 1718 to be adopted in cases then declared to be capital." In Jacobs v. Com., 5 S. & R. 315, it was held that upon an indictment for larceny it was not necessary any arraignment should appear of record. The law is stated by Bishop (1 Crim. Pro., § 275) as follows: "If imprisonment is to be inflicted, or any other punishment higher than a fine, whether the crime is treason, felony, or misdemeanor, the defendant must be personally present." And Wharton says (3 Cr. L. 2949): "The better view is that in capital, if not in all felonies, the record must show that the defendant was present at trial, verdict and sentence." That he must be present upon an indictment for burglary is still the law in Pennsylvania. Prine v. Com., 6 Harris, 103.

SHEPPERD V. THE COUNTY COMMISSIONERS OF SUMPTER.

(59 Ga. 535.)

Constitutional law—business license.

A State statute requiring any person engaged in hiring laborers in the State for employment beyond the limits of the same to procure a license and pay therefor one hundred dollars, and making it penal to carry on the business without such license, is constitutional. Money properly paid into the county treasury, by a person who has applied for and obtained the license, cannot be recovered back, by mandamus or otherwise.

A

PPLICATION for mandamus. The facts are stated in the opinion.

S. C. Elam, for plaintiffs in error.

B. P. Hollis, for defendants.

BLECKLEY, J. The act of February 16, 1876 (Pamph. 17), defines an emigrant agent to be any person engaged in hiring

Shepperd v. The County Commissioners of Sumpter.

laborers in this State, to be employed beyond the limits of the same. It provides for a license, on payment of $100 into the county treasury, and makes it penal for any person to carry on the business of an emigrant agent without first obtaining a license. In January, 1877, the plaintiffs in error, under the threat and the fear of being prosecuted and punished for carrying on business without a license, complied with the act, and their money went into the county treasury. They immediately applied to the county commissioners for an order upon the treasurer to refund it. The commissioners refused, and thereupon the plaintiffs petitioned for a mandamus. At the hearing, all the facts in the petition being admitted, the Superior Court refused the writ. This refusal is alleged to be erroneous.

The plaintiffs say the act of 1876 is unconstitutional, and that, as they paid their money under it, and in fear of prosecution, they are creditors of the county for the amount, and can recover it back. If they had a right, whether their appropriate remedy would be mandamus, in the first instance, we need not consider. The act seems to us constitutional. It requires a license as preliminary to carrying on a certain business, and exacts a license fee of one hundred dollars, which fee becomes county revenue. Whoever engages in the business is equally subject to the terms and provisions of the act. No discrimination is made in favor of residents over nonresidents. It is said that the discrimination lies in requiring an expensive license as a condition of hiring laborers within the State to be employed beyond the State, without imposing a like burden on hiring for employment within the limits of the State. But the license required is for carrying on a business; and it does not appear that hiring for internal employment has become a business here, or is pursued as such by any person or persons. This is enough to dispose of the objection. But if it were otherwise, no authority has been cited, and we know of none, that would prevent the State from acting upon occupations (carried on within the State) in a way to incumber some of them with a tax or license fee, and leave other occupations, dissimilar in tendency, though not in nature, to the free will of those who might be inclined to engage in them. Suppose two rival establishments were in active operation in our midst, one engaged in offering the laboring population inducements to leave, and the other engaged in offering them inducements to remain, could not the State discriminate between

The City of Atlanta v. Wilson.

the two in police and fiscal legislation? Would she be obliged to grant the same indulgence, and show the same favor, to an instrumentality which tended to depopulate her territory, as to one of opposite tendency? It is true, that to go out of the State for employment is not necessarily to remove or withdraw permanently; but, doubtless, a large percentage of hirelings who go out on contracts of employment never return. Persons who make it a business to hire laborers here for employment elsewhere may be required to procure and pay for a license. On the general subject, see Cooley on Tax. 384; Home Ins. Co. v. Augusta, 50 Ga. 530.

The plaintiff's horse took fright, turned over his buggy, and threw it down the embankment of the street upon which he was driving, and thus he was injured. Held, that if the city was negligent in constructing the embankment, in not providing it with necessary railing or other means of protection, and in not keeping the street in safe condition, and such negligence was the real cause of the injury (the jury being the judge of these matters as questions of fact), the plaintiff had a cause of action. (See note, p. 398.)

A

CTION for negligence. The case is stated in the opinion.

W. T. Newman, for plaintiff in error.

L. J. Green & Son, Jno. T. Glenn, McCay & Tripye, for defendant.

BLECKLEY, J. The declaration was demurred to generally, and the demurrer was overruled. The question is, whether any cause of action is set forth. The case made is this: Harris street, one of the public streets of the city, is fifty feet wide. Near where it crosses a branch, the city has thrown up an embankment in the street, ten feet high and two hundred yards long. This embankment is only thirty-five feet wide, fifteen feet of the street being below the embankment. The city has neglected to erect any rail

The City of Atlanta v. Wilson.

ing or other means of protection along the embankment, for the safety of vehicles. To do this was its duty; the failure was negligence, and such negligence caused the injury now complained of. It was the duty of the city to keep the street in safe condition By reason of the city's negligence and carelessness in erecting the embankment and leaving it in the unprotected condition described, the plaintiff has been damaged the sum of $10,000, in this: on the 30th of June, 1875, he was driving his buggy, with himself and three small children in the same, along said street, upon the embankment, when, without fault or negligence on hir part, the horses attached to the buggy became frightened at the blowing of a steam whistle in a manufacturing establishment, and made a sudden and unexpected jerk, detaching a single-tree (the same being in good order), which struck against the legs of one of the horses, causing him to turn suddenly and upset the buggy, throwing it down the embankment, and thereby dislocating the right knee of the plaintiff, and causing other injuries to himsel and his children. The injury to the knee is permanent, has mad his leg crooked, and will cause him pain and suffering as long as h lives. He has been subjected to great expense and loss of time has been compelled to pay physician's bills to the amount of $500; has been confined to his bed for two months, and is stil unable to walk about and attend to business, and is suffering great bodily pain. He could not prevent the fright of the horses, no, the detaching of the single-tree.

It will be observed that the declaration alleges negligence on the part of the defendant, specifies in what it consisted, and avers that it caused the injury. The demurrer admits all this to be true, as well as the nature of the injury, the plaintiff's freedom from fault, and the fact and extent of his damage. In Georgia, negligence is held to be a question of fact for the jury. We have no doubt that the declaration is sufficient in law, if the jury shall believe it fully proved. It will be for them to decide whether the street, under all the circumstances, was less safe than it should have been, and whether its unsafe condition was the real cause of the injury. The city was bound to ordinary and reasonable diligence, and the plaintiff was entitled to such protection as that diligence would affordnothing more and nothing less. Negligence contributing to the injury would render the defendant liable, but any negligence which did not harm the plaintiff would be, as to him, as if it were not.