dissenting. There is not the slightest disagreement among the members of this court as to the proposition that the act of 1903 is designed purely for the punishment of frauds, and that it is not to be perverted into an instrumentality of oppression or a. harsh remedy for the collection of debts. Yet the act, legally construed and fairly' applied, has a beneficial and useful purpose to subserve. As to the $108 advanced by the prosecutor before the labor began, it is plain that no legal conviction, can be based on it, under the circumstances of the present case. The defendant’s desertion of his contract of labor is too remote in point of time and circumstance to be evidentiary of any fraudulent intent at .the time that payment was made by the prosecutor; and in his opinion filed in the record the trial judge recognizes this to be true. See Mulkey v. State, 1 Ga. App. 521 (57 S. E. 1022). My brethren of this bench agree with me in the proposition that, if the $2 paid, to the defendant on the Saturday night before he left the prosecutor was in fact an advance under the contract, the defendant’s leaving without good excuse and without repaying the $2 might be evidentiary of an intent to cheat the prosecutor out of that sum, upon which theory the conviction could be sustained. But my colleagues say that there is no proof that this $2 was in fact an advance; and here comes the point of oui disagreement and my *702dissent. In the first place the prosecutor testified in direct terms that the $2 was “advanced” to the defendant. My fellows say that this' has no sufficient probative value, because it merely states a legal conclusion without giving the facts on which it is based. To my mind, not so. The use of a word which ex vi termini connotes a number of individual facts that in their sum total go to make up the meaning of the word (as, in the present case, the word “advance” contains in itself the idea of a sum of money paid, not .for services rendered in the past, but to be rendered in the future) does not render the statement of the witness opinionative, any more than it would be opinionative of him to express the same idea by the circumlocution of many words. When the witness says “I advanced to him two dollars,” it means no more and no less than if he had said “I gave him two dollars, not for work already performed, but for work to be performed by him in the future.” However, I may waive this point, for I think the record otherwise discloses that this $2 was an advance in the true sense of the word. On December 12, 1906, when the contract was made, the prosecutor paid for the defendant the $108. This payment, by the direct, undisputed testimony, was paid “on the contract.” This was sufficient to pay all the monthly payments due by the promisor under the contract for a period extending far beyond the time when the defendant left his employment;-so that whatever sum was paid to the defendant at the time he left and before this $108 had been worked out was necessarily an advance. My colleagues, to avoid the effect of this, say that this $108 was secured by a mortgage given by the defendant’s mother on her house and lot; ,and this fact does appear in the record. They say that the date of the maturity of this mortgage does not appear. So; but if necessary, as to this date a jjresumption should be indulged which would uphold the verdict, not one which would defeat it. This, however, is unnecessary, for the maturity of this mortgage is wholly immaterial. Take the supposititious case proposed by my colleagues, that the mortgage, given by the mother to secure the performance of the son’s contract to repay the $108 by his labor, does not become due until January 1, 1908; would this alter the case? The mother’s mortgage is only a collateral undertaking; and while the prosecutor could not proceed against her until the mortgage actually matures, this fact in no wise impairs the terms *703of the contract between him and the defendant. Indeed, if that mortgage had been made dire one day after date, still under the law, it having been given merely as security for the defendant’s contract, it could not be foreclosed until the defendant had broken the main contract. An elemental principle of the law of surety-ship compelled the prosecutor to credit the defendant’s labor to the extinguishment of the debt for which the mother, through the mortgage, stood security. Every dollar the prosecutor paid to the defendant on his wages, the $108 not being first repaid, pro tanto released the surety and the mortgage. Underwood v. Bass, 1 Ga. App. 623 (57 S. E. 953), and cases cited. In the majority opinion in the present case it is said: “If it can be established that there was an agreement embodied in the mortgage, or otherwise evidenced in writing as part of the contract, that the wages of the defendant were to be applied to the payment of the indebtedness secured by the mortgage, for the benefit and protection of the mortgagor, and that his wages were thus paid to him by having been so applied, and that for that reason no part of the wages which had been earned by the defendant had been paid at the time the $2 was advanced, and that thereby the prosecutor sustained loss, a conviction can be sustained; but this record does not disclose any of these essential facts.” The obvious reply is that the law itself embodies into the transaction this duty of applying the defendant’s wages to the reduction of the sum already paid him, and secured by his surety’s mortgage, and all courts are required to notice judicially the legal effects growing out of transactions. That which is judicially recognized need not be proved.
Having paid the defendant $108 at the inception of the contract, the prosecutor owed the defendant nothing else thereunder until the ten months and twenty-four days expired, — for the wages were at the rate of $10 per month. Anything else paid him in the meantime was an advance. The question then stands out, “How is the laborer to support himself in the meantime ?” “Aye, there’s the rub!” If the defendant had left the prosecutor because the contract he had made was so hard that he could not live up to it in reasonableness and the prosecutor had refused to ameliorate the hardship by making advances or otherwise, the excuse for quitting would have been a good one and the defendant would have been exempt from criminality. But he presents no such excuse. *704in fact the prosecutor s wears that pending the employment he made-advances. Taking advantage of this liberality of his employer in advancing him money beyond what the letter of the contract, required, the defendant obtained the two dollars on Saturday night; on Monday morning he was absent from his post of duty, and thereafter came no more, — tp employ the colloquial phrase, he had "skipped out.” I think the verdict of guilty should stand.