1 Ga. App. 759 | Ga. Ct. App. | 1907
R. E. Roughton caused Silas Jones to be arrested-■ and bound over upon a warrant charging him with violating the act of December 17, 1901 (Acts 1901, p. 63), relating to the em-1
The act of 1901, after making it penal to hire the cropper or tenant of another, provides, that “any person violating the provisions of the foregoing section shall, at the option of the party alleged to have been injured, be prosecuted as for a misdemeanor, and upon conviction punished as provided-in section 1039 of the Penal Code, or he shall be liable in damages to said alleged injured party as follows,” a penalty being designated. The third section of the act is as follows: “In addition to other defenses the following defenses in both civil and criminal cases arising under the provisions of this act shall be good and sufficient, when proved in every item to the satisfaction of the jury’-, to wit: (1) For the defendant to show that prior to the alleged violation of this act said employee, tenant or cropper, as the case may be, had for good reason and just cause abandoned his'said contract and terminated the relation created thereby. (2) For the defendant to show as a complete defense all of the following facts, to wit: That prior to employing or otherwise contracting with said employee, tenant or cropper, an affidavit to the effect that said employee, tenant or cropper was not at the time under a prior existing contract, which affidavit the defendant shall show to the court, and that immediately'- on proof that said employee, tenant or cropper was under contract defendant discharged him, and refused to permit and did not permit him to remain on his (defendant’s) premises. Whenever in a suit for the recovery of damages the defendant shall urge his defense successfully, he shall have judgment against the
This statute, being in derogation of the common law, must be strictly construed. We think that after verdict it is too late for the defendant to move a judgment for costs and attorney’s fees. If the defendant desires this recovery against the plaintiff, he should, whether the proceeding be by the civil or by the criminal action, make the distinct issue upon the trial of the case, and not after verdict. The amount of the attorney’s fees is not fixed by thé act, and the reasonableness of the allowance is an issuable fact. Ordinarily, issuable facts are not to be determined save by the verdict' of a jury. Usually, if a law provides for a judgment, upon a fact to be found or a sum to be assessed, jury trial is necessary, unless the power to try the issue is expressly lodged elsewhere. No power being expressly conferred upon the judge to pass on this issue, he did not err in declining to assess the attorney’s fees. ' Judgment affirmed.