
    4671.
    Richter v. Cathy.
    Decided August 30, 1913.
    Action for damages; from city court of Madison — Judge Anderson. January 11, 1913.
    
      Middlebroohs & Burress, for plaintiff in error.
    
      Williford & Lambert, contra.
   Russell, J.

1. Tlie court erred in instructing the jury that they could believe the witness or witnesses who had the best opportunity of knowing the facts about which they testified and the least inducement to swear falsely, without qualifying this instruction by the proviso: “if the witnesses are of equal credibility.” Wood v. State, 1 Ga. App. 685 (58 S. E. 271); Lawrence v. State, 10 Ga. App. 786 (74 S. E. 300); Nashville &c. R. Co. v. Hubble, 139 Ga. 300 (76 S. E. 1009).

2. In Fortune v. Braswell, 139 Ga. 609 (77 S. E. 818), the Supreme Court decided that sections 3712 and 3713 of the Civil Code, upon which this suit is based, are unconstitutional. However, we decline to consider this point, because the question as to constitutionality is not presented in the specific mode required by law, and was not raised in the lower court. First National Bank of Senoia v. Jones, 12 Ga. App. 158 (76 S. E. 1042). Judgment reversed.  