Volume 107 — Georgia Reports

<p>1. Even if the municipal authorities of any city in this State had, prior to the constitution of 1877, the power by contract with any of its citizens to perpetually exempt property from taxation, before a claim to such an exemption could be seriously entertained, the existence of such a contract would have to be clearly and specifically shown. The record in this case fails to disclose any contract between the City of Savannah and the plaintiffs, or any of their predecessors in title to the land claimed to be exempt from municipal taxation. Such a contract will not be implied, merely from the fact that the marshal of the city customarily announced, when lands of like character were exposed for public sale, that the same were not subject to city taxes, nor from the fact that it was generally understood by the public that such property would be so exempt, nor from the further fact that for many years the city never undertook to exercise over this class of property its powers of taxation.</p> <p>2. All other questions presented by the record in this case were specifically adjudicated by this court in its decision therein as reported in 87 Oa. 397.</p>

<p>Equitable petition. Before Judge Falligant. Chatham superior court. March 19, 1898.</p>

<p>Where appraisers are duly appointed to set aside a year’s support out of . the estate of a decedent to a widow and three minor children the offspring of the decedent by a former wife, and the return made by such appraisers specifically assigns a sum of money and the household and kitchen furniture to the widow, and also specifically assigns sums of money to each of the minor children by name, and a caveat is filed by the administrator of the decedent, which in terms raises an objection only to the sum set apart for such widow, the issue to be determined by the ordinary does not include the allowance to the children; and when after an appeal from the judgment of the ordinary to the superior court on the issue so formed it appears that a settlement has been made between the caveator and the widow, such caveat can not thereafter be so amended as to bring in issue the allowance made to the children, but on motion the appeal should be dismissed.</p>

<p>Action for damages. Before Judge Falligant. Effingham, superior court. May term, 1898.</p>

Action for damages. Before Judge Norwood. City court of Savannah. July term, 1898. The action was for the homicide of the plaintiff’s husband, James Glover.

<p>Complaint for land. Before' Judge Felton. Crawford superior court. March term, 1898.</p>

<p>As to a claim or demand by one partner against another, arising out of the partnership business, the statute of limitations does not in any event begin to run until after a dissolution of the partnership, and this is true although for a considerable period before dissolution the firm had not been actively engaged in the prosecution of its business but had placed its assets in the hands of an agent for the purpose of collecting the same and paying the partnership debts. It follows that where a firm was composed of two partners, both of whom died before a dissolution by agreement had been made or the partnership affairs settled, a suit upon a demand of the nature above indicated, bythe representative of one partner against the representative of the other, was in time if brought within four years of the death of the partner who died first.</p>

<p>Contempt — appeal. Before Judge Felton. Houston superior court. April term, 1898.</p>

<p>1. Where one conveys, by deed, property to another intrust for the sole use and benefit of the latter’s wife and children, including those that might thereafter be born to such husband and wife, the trust remains executory, and the legal title continues vested in the trustee, so long as any of the children are minors and there is a possibility of further issue of the marriage between the trustee and his wife. The fact that some of the children had arrived at age does not render the trust so far executed as to confer upon them legal title to any interest in the land, especially during the lifetime of the grantor, who enjoins, in his deed creating the trust estate, upon the trustee the duty of providing a support for the grantor during his life.</p> <p>2. On the trial of a claim filed by the children to property levied on to satisfy a judgment against the trustee, subjecting the trust estate, it was not error for the court to exclude testimony offered by the claimants,, tending to show that, on account of the age of the mother at the time of the trial, there was no possibility of further issue of the marriage; it appearing that the debt upon which the original action to subject the trust estate was based was contracted more than five years prior to such trial.</p> <p>3. AVhere such property so conveyed in trust consists mainly of land adapted only for farming purposes, the trustee has the right to carry on the business of cultivating the land for the benefit of the cestuis que trust; and any debt contracted by him for the purpose of purchasing such personalty as was necessary to enable him to conduct the farm, is an obligation undertaken for the benefit of the trust estate, and upon a proper case made the creditor can subject the trust estate to the payment of such a claim.</p> <p>(а) In a suit for this purpose it is not necessary to make the beneficiaries parties thereto; service upon the trustee is binding on a cestui que trust.</p> <p>(б) Nor is it necessary in such an action to allege that the income of the estate was insufficient to pay the debt; as the statute makes the corpus subject regardless of the income.</p> <p>(c) The judgment subjecting the trust estate is not void because the trustee applied the income from the farm only for the benefit of himself and wife; it not being claimed that the creditor had any knowledge of any intention to misappropriate the income, or misuse the trust property, when the credit was extended to the trustee.</p> <p>(d) Even if the petition in such a case was not sufficiently full, but was good against a general demurrer and simply contained minor defects that would have been clearly amendable had objection been made thereto at the trial, such irregularities or defects are cured by the judgment, which binds not only the trustee but also the beneficiaries.</p> <p>4. Where in such a suit against a trustee, brought after the passage of the act embodied in the Civil Code, $4961, the petition sets forth the cause of action in orderly and distinct paragraphs, as required by this section, and no answer is filed by the defendant denying or calling for proof of any of the allegations in the petition, such petition may be taken as prima facie true, and it is not necessary for the plaintiff to introduce further testimony in order to make out his case.</p>

Equitable petition. Before Judge Felton. Bibb superior court. April term, 1898.

<p>Injunction. Before Judge Felton. Bibb superior court. August 15, 1898.</p>

<p>1. The allegations of negligence in the petition were sufficiently specific and distinct to withstand the demurrer which was filed to the same.</p> <p>2. In the trial of an action for personal injuries, where there was evidence tending tó show a permanent disability, it was not error, after having charged generally upon the subject of physical and mental suffering, to add: “You have the right to give .damages for that mental suffering which a man may have from the consciousness that his earning capacity is injured for life. That is one element of damage.”</p> <p>3. The evidence, though conflicting, authorized the verdict. The charges complained of, when taken in connection with the general charge, were not erroneous, and there was no error in refusing a new trial.</p>

<p>1. It was, in the trial of an action against a railway company for killing a mule, erroneous to permit, over a proper objection by counsel for defendant, a witness to testify: “They killed agood.many stock out in that way —they kill the mules and cows. It has not been a year since they killed .a mule right below where they killed mine.”</p> <p>2. This being a case in which the evidence on the main and controlling issnewas close and conflicting, such an error as that above indicated entitled the defendant, against whom the verdict was rendered, to a new trial. This is so because the evidence illegally admitted tended to prejudice the jury against the company.</p> <p>3. A new trial is the more readily ordered, because the liability of the defendant depended upon whether or not the plaintiff’s mule was killed upon a public-road crossing, and it was not clearly shown that even if the killing occurred upon the crossing at all, it was one of the kind just mentioned.</p> <p>■1. The court erred in overruling the certiorari.</p>

<p>Complaint for land. Before Judge Felton. Crawford superior court. March term, 1898.</p>

<p>Where, upon the dismissal by the plaintiff of an equitable action under which a receiver had been appointed to take charge of real estate claimed by the plaintiff and held by the defendant, the court adjudged that the defendant recover of the plaintiff “all the costs and expenses which have been taxed against the funds in the hands of the receiver,” and at the same time passed an order directing the receiver to turn over to the defendant the corpus of the property in dispute and also a specified sum which he had received as rents of the same while in his hands, less the costs and expenses bf the case, including his compensation; and where the entire fund in his hands was not enough to more than pay these costs and expenses, so that the defendant received nothing from him, it was, under section 5043 of the Civil Code, incumbent upon the plaintiff, before undertaking to recommence the action, to pay to the defendant a sum equal to that in the receiver’s hands which was disposed of as above stated, and also to settle the balance, if any, of the costs in the case which remained unpaid. The foregoing is true although the defendant was insolvent at . the time the plaintiff filed a second petition for the purpose of renewing his original action.</p>

<p>1. One whose debtor is the administrator of the estate of a deceased person, in which such debtor is interested as a distributee, may, when the debtor is insolvent, reach his share in the estate by a process of garnishment duly sued out. In such a case the debtor as an individual and the same person as administrator are to be treated as different and distinct persons.</p> <p>2. A judgment rendered in favor of a creditor of a distributee, on such a garnishment proceeding, is conclusive upon the administrator when it appears that he filed an answer denying indebtedness, and, on a traverse thereto, the issue was found against him. Such a judgment is prima facie valid and binding upon the sureties on the administrator’s bond, and in the trial of an action thereon brought by the plaintiff in such judgment the burden is on them to prove the contrary.</p> <p>3. Applying the above rules to the facts of the present case,, the judgment rendered by the court, without the intervention of a jury, was right, and there was no error in refusing to set it aside.</p>

<p>i. When a vendee of personal property makes a material representation which is false, and upon which the vendor is induced to act to his injury by parting with possession of his goods, such a misrepresentation amounts to a fraud in law, which voids the sale, and equity may rescind the contract and restore the parties to their original rights, although the party making such misrepresentation was not aware that his statement was false.</p> <p>'2. The charge of the court fully and fairly covered the issues involved; there was sufficient evidence to authorize those portions of the charge complained of on the ground that they were inapplicable to the facts in the case; and the verdict not being without evidence to support it, this court will not interfere with the discretion of the trial judge in overruling the motion for new trial.</p>

<p>Action, on insurance policy. - Before Judge Felton. Bibb superior court. April term, 1898.</p>

<p>Equitable petition. Before Judge Felton. Bibb superior court. April term, 1898.</p>

<p>When by a year’s support duly set apart to a widow for herself and her minor children she is allowed a sum of money the collection of which must necessarily and in any event exhaust the entire assets of the estate, neither she nor the children can, as heirs or distributees, recover anything from the administrator. This is so for the obvious reason that the estate in his hands is subject to the judgment for the year’s support, the enforcement of which would completely exhaust the assets and leave nothing for distribution to heirs.</p>

<p>Certiorari. Before Judge Felton. Bibb superior court. April term, 1898.</p>

<p>Where a certificate in the nature of a policy'of life-insurance has been issued by a benefit association to one of its members, promising to pay out of its beneficiary fund to the wife of the member a specified amount upon his death, and where it is stipulated in the certificate that it is issued upon condition “that the said member complies in the future with the laws, rules, and regulations now governing said conclave and fund, or that may hereafter be enacted by the Supreme Conclave to govern said conclave and fund,” the non-payment of an assessment made upon the member for the compaon benefit fund, which has become due and payable under the laws of the association, will not, ipso facto, amount to a forfeiture of the benefit of life-insurance provided for in the certificate, it appearing that there is no law or rule of the association expressly providing that such non-payment will of itself work a forfeiture.</p> <p>{a) Even where the rules of the association indicate that such non-payment of a monthly assessment by a member is a ground of suspension, a forfeiture of his benefits under the certificate will not result from such non-payment, unless there has been some judicatory or affirmative action by the association declaring the member suspended.</p> <p>(b) The mere fact that the collector of such association has entered upon the account of the defaulting member the word “suspended,” and has recorded the same on the books of the association, would not amount to such; affirmative action; the collector not being empowered to declare a member suspended for any reason, and no action whatever having been taken by the association approving or authorizing such entry on his books.</p>

<p>Equitable petition. Before Judge Felton. Crawford superior court. April 18, 1898.</p>

Action for damages. Before Judge Felton. Bibb superior court. April 1, 1898. The action was for personal injuries received by the plaintiff ■on alighting from a train of the defendant upon which he was a passenger.

<p>Rule to distribute money. Before Judge Reid. Fulton superior court,. March term, 1898.</p>

<p>A decree rendered on a petition filed for a general accounting between the plaintiff and defendant will not be reopened in order to allow the plaintiff to charge the defendant with additional items, unless it be shown that the plaintiff had no knowledge of the existence of such items before the rendition of the decree, and that such knowledge could not have been obtained by the exercise of ordinary diligence.</p>

<p>1. On the trial of an issue formed by objections filed by creditors of a deceased to the return of appraisers setting apart a year’s support to the widow, the burden of proof is on the objectors, and, where both parties introduce evidence, counsel for the objectors are entitled to open and conclude the argument.</p> <p>2. In such a trial, where it appears that the year’s support was claimed out of certain personal property and 150 acres of land, a verdict setting aside the persona] property and. “50 acres of land where dwelling-house now stands ” was, as to the land, too vague and uncertain to be capable of enforcement.</p> <p>3. The grounds of the motion for new trial relating to other questions, so far as they are intelligible, are without merit.</p>

<p>1. That the contentions of one party were not as specifically set forth in the charge of the court as were those of the other was not cause for a new trial, when the charge as a whole fully, fairly, and correctly covered the law applicable to every issue in the case.</p> <p>2. There was no error in refusing to give a request in charge which implied that counsel for the adverse party had made an improper appeal to the jury, when, as shown by the certificate of the trial judge, no such appeal was made. '</p> <p>3. Refusal to give requests in charge is not error, when, so far as legal, they - are fully covered by the general charge.</p> <p>4. Where counsel for the defendant objected to certain language used by plaintiff’s counsel in his argument to the jury, upon the ground that it was an appeal “to make a verdict based on matters not in the plaintiff’s declaration and suit,” and thereupon the presiding judge stated to the jury that “the position of defendant’s counsel was the law and the jury should take it as such,” and gave further appropriate instructions upon the subject, after verdict a new trial should not be granted the defendant upon the ground that “the court should have given direct and unqualified disapproval of [such appeal] to the jury, and that the response of the court to the point made by defendant’s counsel on that line of argument was not adequate in view of the nature of the appeal made. ’ ’ The defendant’s counsel should have requested such instructions as, in his opinion, would have been sufficient to remove any improper impressions made upon the minds of the jurors by the unauthorized appeal of .plaintiff’s counsel, or moved that the case be withdrawn from the jury and a mistrial declared.</p> <p>5. The cries or exclamations of bystanders upon seeing an accident about to occur may be proved to explain the state of mind and conduct of a person hearing them and who is injured in the'accident.</p> <p>6. This court can not undertake to determine whether or not error was committed by the trial judge in refusing to permit counsel to ask a witness and have him answer a given question, when it does not appear what the answer thereto would have been had it been allowed.</p> <p>(a) A witness who is not an expert as to the subject upon which he is questioned is incompetent to give an opinion thereon without stating the facts on which his opinion is based.</p> <p>7. Though in defense to the plaintiff’s contention that the person for whose benefit the suit was proceeding was injured by reason of the negligent running of the defendant’s cars, the latter introduced evidence tending to show that the injury could have been caused or aggravated by excessive sexual intercourse, there was, under all the facts and circumstances, no error in rejecting other evidence offered to show that a given person had caressed, hugged, and kissed such injured party.</p> <p>8. Where the defendant offered to prove by a witness that he had taken liberties with the woman for whose benefit the suit was proceeding, and had become intimate or familiar with her, and by another witness the circumstances under which he had seen her and a certain man in the woods and the intimacy existing between them, this court can not determine whether or not error was committed in the rejection of such evidence by the trial judge, when it does not appear what the acts or circumstances constituting such familiarities or intimacies were.</p> <p>9. There was no error in rejecting evidence offered to show the state of feeling existing between certain witnesses.</p> <p>10. There is no merit in a ground of a motion for a new trial which complains that the court erred in allowing a given amendment to the declaration, “after the trial had commenced, and when there was no opportunity for medical examination of the plaintiff” as to the additional injury alleged in the amendment, especially where it does not appear that the defendant objected to the amendment for any reason.</p> <p>11. The evidence for the plaintiff was amply sufficient to authorize the verdict, and in the light of such evidence the verdict was not excessive.</p>

Equitable petition. Before Judge Callaway. Richmond' county. September 13, 1898.

<p>Equitable petition — demurrer. Before Judge Reese. Hancock superior court. February term, 1898.</p>

<p>Exceptions to auditor’s report. Before Judge Felton. Bibbsuperior court. April term, 1898.</p>

<p>Action on insurance policy. Before Judge Reese. Oglethorpe superior court. April term, 1898.</p>

<p>1. Where a brief of evidence constituting a part of a motion for a new trial was "approved, subject to revision,” and thereupon duly filed in accordance with the order of the court; and the hearing of the motion was from time to time regularly continued by appropriate orders, all of which allowed the movant until the final hearing to amend and perfect the brief of evidence, it was of course competent for the judge to pass upon and finally approve the same at that hearing.</p> <p>■2. Persons related within the prohibited degree to stockholders of a bank, or to others who are pecuniarily interested in the value of its stock, are incompetent to serve as jurors on the trial of an action brought by the bank; and where persons so related, without the knowledge or consent of the defendant, or his counsel, actually serve as jurors on such a trial, another hearing should be had notwithstanding ignorance on the part of the disqualified jurors of the fact that their kinsmen were stockholders, ■or pecuniarily interested in the .stock, of the bank.</p>

<p>1. Where by the terms of a contract between a building and loan association and its stockholders a stockholder had the right, upon giving sixty-days notice, to -withdraw his stock and to thereupon receive from the association its withdrawal value, the rule for determining which was prescribed in the contract printed upon each stock certificate, and a stockholder in the association transferred, or endorsed, his stock certificate to the association “for withdrawal,” after which a banking company obtained from the association such certificate and upon it collected from the association the withdrawal value of the stock which the certificate represented, the owner of the certificate had the right to recover from the banking company the amount so collected in an action for money had and received.</p> <p>2. In such an action, it was not essential that any privity of contract between the plaintiff and defendant should have been shown. If the plaintiffs right to the money received by the defendant was established, and the defendant was shown to have received it under such circumstances that it ought not to have retained it, the law implied a promise to pay it to the party who ought to have had it.</p> <p>.3. Although, under the circumstances stated in the first headnote, the payment by the building and loan association of the withdrawal value of the stock to the banking company would not relieve the association of its liability to the owner of the stock certificate, such owner was not confined to his remedy against the association. If he saw fit, he could ratify the unauthorized collection by the banking company and the unauthorized payment by the association, and recover the amount of such payment from the banking company.</p> <p>4. Except as against the claims of the corporation, a transfer of stock does not require a transfer on the books of the company.</p>

<p>Complaint in trover. Before Judge Norwood. City court of Savannah. April 1, 1898.</p>

<p>IllegalRy. Before Judge Reese. Glascock superior court. February term, 1898.</p>

<p>'The evidence demanded a verdict for the claimant, and the court did not err in directing the jury to so find.</p>

<p>Appeal. Before Judge Reese. Wilkes superior court. May term, 1898.</p>

<p>Appeal. Before Judge Reese. Wilkes superior court. May term, 1898.</p>

<p>An exception to a judgment granting a new trial unless the prevailing party complies with a specified condition will not he considered by this court when the plaintiff in error makes it appear on the argument here that, because of the failure of the opposite party to avail himself of the condition, a new trial must actually result.</p>

<p>1. As the issuance of an attachment by a judge of the superior court under the fraudulent debtor’s act embodied in section 4543 et seq. of the Civil Code involves a preliminary determination by him that the attachment should issue, it is a judicial and not a ministerial act.</p> <p>2. When a petition for such an attachment alleges as a foundation for its issuance that the debtor has made a conveyance of certain property, describing it, to other parties, with the intent to hinder, delay, and defraud creditors, and further attacks such conveyance as being otherwise illegal, the sheriff, by a levy of the attachment upon the goods described in the petition, does not thereby become a trespasser, although the conveyance thus attacked may be valid in law. He is therefore not liable in an action for damages in consequence of such levy, in a suit by the transferees of such goods, who claim to have bought the same in good faith before the .attachment was issued.</p> <p>3. In the trial of an action by such claimants of the property against the sheriff and the plaintiffs in attachment, it was error to strike a plea to the jurisdiction, filed by the plaintiffs in attachment, setting up the nature of the attachment proceeding, and alleging that they were non-residents of the county where the suit was brought. If was also error to refuse a nonsuit upon the motion of defendants’ counsel, after the close of plaintiffs’ evidence, when the above facts were disclosed.</p>

<p>1. Where one returns for taxes real estate the use and possession of -which he is enjoying and to which he holds bond for title given him by the grantee in a security-deed, he is liable for such taxes; and when the property is sold for their payment, under a tax execution issued against him, the holder of the security-deed may become the purchaser of the property and thus acquire a perfect and complete title thereto, subject only to the right of redemption allowed by law.</p> <p>2. Prior to the act of 1898, one not interested in land sold by the sheriff for State and county taxes except by reason of his holding a judgment lien upon it had no right to attack the sale because of excessiveness in the levy.</p> <p>3. The verdict being amply sustained by the evidence and the above being the controlling principles in the case, it is unnecessary to deal with the other questions presented by the record.</p>

<p>Certiorari. Before Judge Hutchins. Clarke superior court.. April term, 1898.</p>

Levy and claim. Before Judge Hutchins. Jackson superior court. August term, 1898. Under an execution in favor of Hardman against William Cooper individually, certain land was levied on as the property of the defendant, and a claim was interposed by him as executor of Willis Cooper. On the trial the plaintiff offered the following amendment to the issue tendered by him: The land levied on was sold by plaintiff to Willis Cooper, and bond for title given.

<p>1. The person furnishing material for the improvement of real estate has a special lien on the real estate itself, thus improved, upon the completion of his contract and the record of his lien as required by law.</p> <p>2. The city court of Gwinnett county has jurisdiction to render a judgment foreclosing a materialman’s lien on real estate.</p> <p>3. There was sufficient evidence to sustain the finding of the jury.</p>

<p>Equitable petition. Before Judge Hutchins. Clarke superior court. April term, 1898.</p>

<p>Equitable petition. Before Judge Kimsey. Hall superior court. January term, 1898.</p>

<p>Motion to dismiss writ of error.</p>

<p>Levy and claim. Before Judge Fite. Dade superior court. March 24,1898.</p>

<p>A paper purporting to be an affidavit attested by a person as a notary public in another State, with nothing to authenticate his official character as such, should not be treated as an “affidavit” authorizing the proceedings presciibed by section 1902 of the Civil Code for perfecting service in certain cases against corporations.</p>

<p>Equitable petition. Before Judge Reese. Hancock supeTior court. February 9, 1898.</p>

<p>Levy and claim. Before Judge Reese. Hart superior court. March term, 1898.</p>

<p>Appeal. Before Judge Hutchins. Oconee superior court. July term, 1898.</p>

<p>“One or more creditors representing one third in amount of the unsecured debt” of an insolvent trader are “ necessary parties ” in a proceeding instituted against him under the provisions of section 2716 of the Civil Code. While any creditor may become a party to the case under an order of the court at any time before the final distribution of the assets, the entire case, .both as to original parties, and parties made after the petition is filed, will fail unless it be established that the plaintiffs in the original petition were creditors “ representing one third in amount of the unsecured debt” of the insolvent trader.</p>

<p>The verdict being without evidence to support it, the court erred in refusing to grant a new trial.</p>

<p>Action on insurance policy. Before Judge Kimsey. Hall superior court. August 13, 1898.</p>

<p>1. When a landlord enters into a written contract with his tenant for the-purpose of creating a lien upon the crops of the latter for supplies furnished and to be furnished the tenant by the landlord to make the crops, the term “supplies” will include money furnished by the landlord and used by the tenant in making and gathering the crops.</p> <p>' 2. A contract creating such lien is sufficiently descriptive of the property upon which it is to take effect, when it specifies the entire crops of the-tenant, consisting of a certain number of acres of cotton to be grown during the year for which the supplies are furnished, and when it also appears that the land mentioned in the contract was all that the tenant had in cultivation, and that cotton was the only crop grown on the same.</p> <p>3. The relation of landlord and tenant may exist between two parties although the landlord is not really the owner of the premises rented but is himself a renter from the owner; and the lien of such landlord for rent, and supplies is superior to that of a general judgment against the tenant, older in date than the landlord’s lien.</p> <p>4. While a special lien for rent arises in favor of the transferee of a rent contract when the crop matures, if the transfer was made in writing before such maturity, yet where the landlord has indorsed a rent note transferred by him and has thus become personally liable for its payment, and where an understanding or agreement exists between him and the transferee that .the right of foreclosing the lien shall remain in the landlord for his protection, and it is accordingly foreclosed by him, in a contest between such landlord and a judgment creditor of the tenant over a fund on which the lien for rent takes effect, in which contest the transferee of the rent note and the tenant are likewise parties and both of them consent to a foreclosure of the lien in the name of the landlord, it is not error for the court to treat the lien for rent as properly foreclosed, over the objection of the judgment creditor.</p> <p>5. The above principles are controlling of all the material questions of law involved in the record and important to be considered. There being sufficient evidence to sustain the verdict, this court will not interfere with the discretion of the trial judge in overruling the motion for a new trial.</p>

<p>Ejectment. Before Judge Gober. Catoosa superior court. .February 23, 1898.</p>

<p>1. A petition alleging that defendant is liable in damages to the plaintiff, a married woman, for fraudulently procuring her to sign, as coprincipal with another, a negotiable note payable to the defendant, when her undertaking was one of suretyship only, upon the express understanding that she should never be liable to pay the same, and that she was compelled by suit to pay the note to an innocent purchaser, who acquired the same before maturity for value in due course of trade, sets forth a • cause of action.</p> <p>2. A promissory note containing words of negotiability, executed since the passage of the act of 1891 (Civil Code, $3667), providing that contracts to pay attorney’s fees in notes and like instruments shall be void unless a plea be filed by the defendant and not sustained, is negotiable, notwithstanding an agreement in the note “to pay all costs of collection including ten per cent, attorney’s fees.”</p>

<p>Levy and claim. Before Judge Henry. Walker superior-court. February term, 1898.</p>

<p>The law embodied in section 5539 of the Civil Code does not in any case authorize delay in tendering to a trial judge a bill of exceptions alleging error in a judgment rendered during a given term, for more than thirty days after the final adjournment of the court for that term.</p>

<p>Action on insurance policy. Before Judge Henry. Floyd, superior court. July 19, 1898.</p>

<p>Complaint. Before Judge Spence. Calhoun superior court.. February 12, 1898.</p>

<p>Petition to remove cause. Before Judge Fite. Gordon superior court. February term, 1898.</p>

<p>Illegality. Before Judge Fite. Catoosa superior court. April 26, 1898.</p>

Equitable petition. Before Judge Fite. Catoosa superior-court. June 21, 1898. The petition was against Thomas O. Napier and M. E. Napier. It alleged, in substance, that the latter was the widow and the former a son and the administrator of the plaintiffs’ father, Thomas C. Napier, who died intestate, leaving, besides-these parties, as his heirs at law, Aurelia M. Baldwin and Leon M., Sarah R., Bertha B., and Claudia Napier.

<p>Appeal. Before Judge Henry. Floyd superior court. October 22, 1897.</p>

<p>Under the undisputed facts of this case the plaintiff was not entitled too» recovery, and it was therefore error to deny a new trial.</p>

<p>No error of law having been committed, the plaintiffs having shown aright, to recover, and the defendants having failed to establish by evidence the facts set up in their answer and relied on by them as constituting a defense to the action, there was no error in refusing to grant a new trial.</p>

<p>1. An award so indefinite and uncertain as to be incapable of enforcement is void.</p> <p>2. As the charge of the court in the present case gave the defendant the benefit of such an award and practically controlled the verdict in his favor, and as there was evidence which, but for such charge, would have supported a finding for the plaintiff, it was error to refuse a new trial.</p>

<p>1. Inasmuch as a provision in a city charter granted in 1856, exempting-from municipal taxation property which, under the present constitution,, can not be so exempted, conflicts with that instrument, such exemption was thereby abrogated.</p> <p>2. If the rate of taxation imposed by a municipal corporation be uniform as to both realty and personalty, the mere fact that two methods of valuation, one applying to realty and the other to personalty, are adopted,, does not render the scheme of taxation unconstitutional, so long as it-has for its purpose the ascertainment of the true value of both classes of property in order that all of it may be taxed uniformly and on the ad valorem basis.</p>

<p>Petition for injunction. Before Judge Sheffield. Terrell superior court. May term, 1898.</p>

<p>A new trial should not he granted because of rejecting evidence offered by a defendant, when it is apparent from the record that the verdict against him was right, and that, even if this evidence had been admitted, the result ought not to have been otherwise.</p>

<p>Under the act of Dec. 24, 1896 (Acts 1896, p. 35), a tax-collector is under no obligation to pay to the county treasurer any money in his hands collected during a certain month, until he makes his statement on the first Monday of the succeeding month. Therefore a writ of mandamus will not lie either to compel the collector to pay such moneys to the county treasurer before the first day of the month succeeding their collection, or to compel him, after that time, to pay such moneys to one whose term of office has expired and whose successor has been elected and qualified-</p>

<p>1. A' new trial should not be granted because of a refusal to continue a case merely to allow a party additional time to prepare for trial, when it appears that ample time and opportunity for preparation had elapsed before the case was called for a hearing, and the party seeking the continuance had exercised no diligence whatever in even endeavoring to be ready.</p> <p>2. The 22d rule of the superior court confers no authority upon a judge to strike the answer of a defendant who, within the time prescribed, moves for a continuance.</p> <p>3. It being apparent that this writ of error was sued out for delay only, damages are'awarded to the defendant in error.</p>

<p>Action for damages. Before Judge Atkinson. City court •of Brunswick. July 28, 1898.</p>

<p>This court will not reverse a judgment granting an order making the plaintiffs in error, over their objection, parties defendant to a pending equitable petition, when the record of the case discloses the existence of complicated litigation, to which they ai-e, at least, proper parties; nothing being now intimated as to what should or should not be adjudicated relatively to them or their rights at the final hearing.</p>

<p>1. Where a petition sought to recover damages for the commission of two separate and distinct torts, the court did not err in refusing, on motion of defendant’s counsel at the conclusion of the evidence for the plaintiff, to nonsuit the plaintiff as to the claim of damages for one of the torts declared upon. A nonsuit goes to the whole and not to a part of the plaintiff’s case.</p> <p>2. When, under such a petition, the evidence shows that the plaintiff is entitled to have a recovery for one of the tortious acts alleged to have been committed, and is not entitled to recover for the other of such alleged acts, and under the charge of the court the jury could have properly based their verdict on either one or both, and a verdict finding a gross sum for the plaintiff was returned, it can not legally stand, because of the uncertainty as to whether it was rendered in satisfaction of the tortious act proved or that submitted which was not proved.</p>

<p>1. A provision in the charter of a city, requiring assessors to return for city-taxes all realty according to its market value on the first day of a certain month, and also requiring areturn of all personalty owned by thetaxpayeion the 15th day of that month, can not be enforced in any particular case •where its effect will be to tax a vendor of land on both the realty and the-proceeds of a sale thereof; whether in cash or promissory notes.</p> <p>2. AVhen the vendor has paid taxes on the purchase-money in such a case, the fi. fa. for taxes on the realty in the hands of the vendee as transferee-can not be enforced by a levy on the property of the vendor.</p>

<p>Levy and claim. Before Judge Henry. Floyd superior court. July 18, 1898.</p>

<p>Complaint for land. Before Judge Fite. Floyd superior -court. August 25, 1898.</p>

<p>1. When a husband dies seized and possessed of land, his widow has a vested right to dower therein; and when the land is sold by the administrator on an order of the ordinary, the title acquired by the purchaser at such sale is subject to the widow’s right of dower unless she has waived the same in some way known to the law.</p> <p>2. The widow is not estopped from asserting this right by the fact that she consented for the administrator to procure an order and sell the real estate, nor by the further fact that, after the sale, she applied for a year’s support in the proceeds thereof; it appearing that the purchaser at the sale was not, in buying the property, aware of this conduct of the widow and consequently could not have acted thereon or regarded the same as constituting a waiver of her right of dower.</p>

<p>Equitable petition. Before Judge Harris. Meriwether superior court. February term, 1898.</p>

<p>Appeal. Before Judge Butt. Marion superior court. .August 23, 1898.</p>

<p>1. Where a wife has filed a claim to property levied upon by virtue of a fu , fa. issued on a general judgment against her husband, it is not error for the court to refuse to permit plaintiff to amend the pleadings in the case by alleging simply that the debt, which was the -basis of the judgment was for material used in the erection of the improvements levied upon, “which was valuable and was accepted bythe claimant, and was furnished with the knowledge of the claimant.”</p> <p>2. The evidence in this case demanding a verdict for the claimant, there was no error in directing the jury so to find.</p>

<p>1. Where a mechanic institutes proceedings to foreclose his lien on realty and prays process against the contractor and not against the owner, and. where the contractor only is served with copy of such petition and process, yet, if the owner appears on the trial of the case, demurs to plaintiff’s action and pleads to the merits thereof, the owner becomes a codefendant, with the contractor and is bound by a judgment foreclosing the lien upon his property.</p> <p>2. In such a case there is no error in dismissing an appeal entered to the-superior court by the contractor, when the only security appearing on the appeal bond of the contractor is his codefendant in the case. The appeal is a nullity; and there is no error in refusing to allow appellant, to amend the bond by giving security.</p>

Complaint. Before Judge Sheffield. Terrell superior court. May term, 1898. The Bank of Little Rock sued Harris upon his promissory note payable to the Dudley E. Jones Company and indorsed by that company to the plaintiff. The defendant pleaded that the plaintiff was not a bona fide holder of the note before maturity, and that the consideration of the note had failed. At the trial the plaintiff introduced in evidence the note sued on, and closed.

<p>1. A judgment in an ejectment suit against parties in possession of land held by them under bond for titles from the owner will be set aside by a court of equity, upon petition of the defendants in the case and of the owner of the land, when it appears that they had a valid defense to the action,, which they were prevented from making, without fault on their part, by the fraudulent representation of the plaintiff, ruadle before .the trial, that he had abandoned his suit.</p> <p>2. When, on the trial of such an equitable petition to set aside a verdict or judgment, it appears from the testimony that the agent and the general counsel of the owner were present in the court-room when the ejectment case was tried, but that the counsel had no knowledge of the nature of the case or that the interests of their client were involved therein, and had not been employed to look after the defense of that particular suit, and it does not appear that either the counsel or the agent represented the tenants in possession, who were the only defendants in the suit, it was error for the court to charge the jury as follows : “Notwithstanding that you should believe the defendant Williams did make fraudulent statements to the agent of the plaintiffs or to the plaintiffs themselves, and if the agent of the plaintiffs was in the court-room, and their attorneys were in the court-room, when the case was tried, and their attention was called to it at any time before the final verdict in the case, and they made no objections and sat by and allowed the verdict to be taken, provided you believe that they knew of this case at any time before the final verdict was rendered and knew that this was the land now in question, then I charge you that they would be bound by it. Notwithstanding Williams made fraudulent statements that prevented them from making proper defense, if their attention was called to it in the court-room during the- - progress of the case, at any time before a final verdict, and they made no-objections at that time, they are bound by the verdict, if it was known to them.”</p> <p>3. In an ejectment suit the plaintiff must recover upon the strength of his own title and not the weakness of his adversary’s. It was therefore error in this case, brought to set aside a verdict in ejectment, for the court to charge the jury in effect that it was necessary for the defendants to show that they had a good and valid defense to the original action, that is that they had the true.and genuine title.</p> <p>4. On the trial of an equitable petition to set aside a verdict rendered in a common-law action of ejectment, it was error for the court to charge the jury that the law required no proof of plaintiff’s title where there was no answer filed by the defendants, but that, under the pleading act of December 15, 1893, they could render a verdict for the plaintiff. It does not necessarily follow that the verdict in the ejectment suit was void because of an instruction to this effect on the trial thereof. Such a charge, even if erroneous, was the law of that particular case until, upon a review thereof on proper exception, the judgment resulting therefrom was reversed.</p> <p>5. There being no testimony in this case that tie defendant ever had such prior possession of the premises in dispute as would alone authorize a recovery against any of the plaintiffs, it was error for the court to charge the jury that a party may in ejectment recover upon prior possession alone.</p>

<p>Complaint. Before Judge Lumpkin. Fulton superior court. March term, 1898.</p>

<p>1. Where an order by consent of counsel for both parties was granted by the court, at the appearance term of a suit for unliquidated damages, providing that ‘ ‘the demurrer ” to plaintiffs petition be heard at the trial term, and by inadvertence or mistake the defendant’s counsel omitted to file the demurrer, but no entry of default had been made upon the docket, it was not error for the court to permit a demurrer to be filed, on payment of costs by defendant, and to proceed to hear argument on the same at the trial term of the case.</p> <p>2. When a ticket has been delivered by a railroad company for passage over its lines to a newspaper, with power in the latter to sell and transfer the same, but its validity has on its face been expressly limited to the first purchaser, the effect of the transaction is to constitute the newspaper the special agent of the company to dispose of the ticket on the terms named. No authority being given such agent to vary the terms of the sale, it follows that after a sale by the agent to a purchaser and an insertion of the purchaser’s name in the ticket, it becomes valueless in the hands of any ■other person. The above facts appearing in a petition by one who claimed to have bought the ticket from the first purchaser of the agent and who was suing the company for damages on account of being ejected from defendant’s car by a conductor who refused to honor such ticket, the court did not err in sustaining a demurrer to the petition on the ground that it set forth no cause of action against the defendant.</p>

<p>1. The legislature of this State has the constitutional power to pass an act shortening the terms of the offices of clerk and .sheriff of the city court of Savannah; and the term of service of an incumbent of one of these offices may be thus brought to an end before the expiration of the time for which such incumbent was originally elected.</p> <p>2. The act of the legislature approved December 16, 1898 (Acts of 1898, p. 265), entitled “An act to fix the time for the election of all city officers now elected by the council of the Mayor and Aldermen of the City of Savannah, to provide for the terms of such officers, to terminate the terms of those now in office, and for other purposes,” does not violate paragraph 17, section 7, article 3 of the constitution of 1877 (Civil Code, $5779) simply because it does not “distinctly describe” or in any manner refer to the act of November 29, 1895 (Acts 1895, p. 394), upon which the act of 1898 operates.</p> <p>3. The title to the above-mentioned act of 1898 is sufficiently comprehensive to embrace the provision in the body thereof relating to the clerk and sheriff of the city court of Savannah; and the body of the act does not, within the meaning of paragraph 8, section 7, article 3 of the constitution of 1877 (Civil Code, $5771), contain matter different from what is expressed in its title; nor does it refer to more than one subject-matter.</p> <p>Lumpkin, P. J., concurring specially. Simmons, C. J.,and Little, J., dissenting.</p>

<p>A paper attested by more than two witnesses and containing three clauses, the first of which, in the form of a deed of gift, purports to convey title to land, the second of which declares the grantee shall have and hold such lands after the maker’s death, together with certain described personal property not referred to in the first clause, “the burial expenses and just debts of” the maker “to be paid first,” and the third clause of which declares that all of his other property of every kind shall be divided among certain other named persons designated as “ heirs,” calls this disposition of his property a “division,” and then expressly declares all other “wills and conveyances” null and void, is testamentary in character, and does not operate to convey any present title to the land described in the first part of the instrument.</p>

<p>1. The facts, that an administrator’s sale of land was had in the month of August, that the auctioneer who cried the property for sale did, on request of the administrator, cry a specific sum as a bid on the land for the widow of the intestate, who was not present, and that, such being the best bid, the widow thereby became the purchaser, do not afford to the other heirs at law sufficient grounds to set aside such sale, it not being alleged that any discretion was given to the auctioneer, or that he had authority to bid for the widow any other or different sum.</p> <p>2. Though an equitable petition may in general terms characterize such a transaction as a “ so-called sale ” and as “a trick and a fraud,” yet where it is manifest that the petition undertakes to set up all the facts relied on to establish this conclusion, and they amount to no more than as indicated in the preceding note, such petition is not good even as against a general demurrer.</p>

<p>An attorney at law is not entitled to a lien upon land the advertised sale of which by the sheriff upon a particular day was prevented by the granting of a restraining order upon a petition for injunction filed by such attorney, the restraining order having been subsequently dissolved and no judgment or decree having been rendered in favor of the plaintiff; nor would such a lien arise merely because the client by reason of the delay incident to the granting of the restraining order was enabled, with the-attorney’s aid, to make a financial arrangement by which the threatened sheriff’s sale was finally averted.</p>

<p>]. Where a mortgage upon an interest in realty described that interest by setting forth in full a copy of a deed whereby the realty had, as a whole, been conveyed in fee simple to divers persons, including the mortgagor, and where the mortgagee instituted against the mortgagor and the maker of the deed an equitable proceeding to foreclose the mortgage and also to reform the deed so as to make it convey to the mortgagor an interest in the realty different from that expressed therein, a judgment rendered in such proceeding, foreclosing the mortgage and reforming the deed as prayed, incidentally reformed the mortgage itself and rendered the foreclosure operative upon the mortgagor’s interest as fixed and defined in such judgment. A judgment thus rendered bound all the parties to the case, and after its rendition there could be no other or further foreclosure of the mortgage as to any interest in the realty which the mortgagor had at the time of executing the mortgage.</p> <p>2. Such a mortgage, though it purported to create in the mortgagee’s favor a lien upon any interest in the described realty which the mortgagor might acquire after.the time of its execution, was not, under the law now embodied in section 2723 of the Civil Code, valid as to any such after-acquired interest.</p> <p>3. An equitable petition in the nature of a bill of review will not lie for the purpose of opening and reforming a judgment, in order merely to make the same binding upon a person who was not a party to the proceeding in which that judgment was rendered, when there is no error apparent on the face of the judgment, and when such petition is not predicated upon any new fact, or facts, entitling the plaintiff to the relief sought. The more especially is this true when it is apparent from the allegations of the petition that there was no good, reason for failingto make such person a party in the first instance.</p>

<p>Costs in a given case which has gone to judgment, whereon an execution has been issued, can not be collected by ruling the sheriff upon that execution, when it appears that the same has been returned to court satisfied in full, and that such costs had not been taxed in the case or entered upon such execution. This is true though the costs herein referred to have been erroneously taxed in another case against the same defendant and entered upon the execution issued on a judgment therein rendered.</p>

Equitable petition. Before Judge Felton. Bibb superior ■court. April term, 1898.

<p>Exceptions to auditor’s report. Before Judge Fite. Floyd superior court. May' 5,' 1898.</p>

<p>Complaint. Before Judge Janes. Polk superior court. February 26, 1898.</p>

<p>1. An auditor’s report of the evidence taken by him upon the hearing of a case constitutes a portion of the record thereof, and maybe specified and dealt with as such in bringing that case to this court.</p> <p>2. In view of the evidence appearing in the present record, and of the rulings of the trial judge to which no exceptions were taken and which were apparently correct, there could be no lawful judgment against the plaintiff in error, and the court erred in not so adjudging.</p>

<p>Foreclosure of mortgage. Before Judge Gober. Forsyth ■superior court. February term, 1898.</p>

Action for damages. Before Judge Felton. Bibb superior «court. November term, 1897. The action was for the homicide of the plaintiff’s son, Andrew Wright, upon whom, she alleged, she was dependent for her support.

Action for damages. Before Judge Reid. City court of Atlanta. June 28, 1898. This was a suit against the railroad company for the wrongful conversion of four cars of bulk com. By consent the case-was tried by the judge without the intervention of a jury. A judgment was rendered in favor of the plaintiff. The defendant made a motion for a new trial, the first three grounds of which were that the judgment was contrary to the law and the evidence.

<p>Equitable petition. Before Judge Callaway. Richmond superior court. April 21, 1898.</p>

<p>1. Under the decision of this court in Harrold, Johnson & Go. v. Morgan, 66 Ga. 398, which upon a review thereof is affirmed, a security-deed infected with usury does not, relatively to a judgment creditor of the grantor, pass title out of the latter; and this is so even though the judgment against him was not rendered until after the execution and delivery of such deed.</p> <p>2. One who accepts from another a conveyance of land with notice of the fact that a third person has an equitable interest therein takes subject thereto.</p> <p>3. The plaintiff in error is entitled to a new trial.</p>

<p>When property is sold and conveyed by a common, grantor at different times and to different purchasers, and taxes having a lien on all the property sold are due, the last property sold is primarily bound for the payment of all such taxes.</p>

<p>A written contract for the payment by the borrower to the lender of a gross sum of money including principal, interest, and commissions, is not in law usurious, if the total amount to be paid does not exceed the sum which would result from adding to the principal actually received by the borrower interest at eight per cent, per annum for the period of the loan. The statutory provision, that “Any higher rate [than 7 per cent.] must be specified in writing, but in no event to exceed eight per cent, per annum,” is, in a given instance, substantially complied with, if in fact the lender does not contract to receive more than eight per cent, per annum for the use of the principal advanced. The contract in this case was not usurious.</p>

<p>Action on insurance policy. Before Judge Sweat. Ware superior court. April term, 1898.</p>

Petition for injunction. Before Judge Butt. Talbot superior court. March term, 1898. Held: except once a year, when the stockholders elected the directors, at which time nothing was done by the board but to elect officers; and the entire control and management of the road has been in the hands of S. W. Thornton who has held the office of superintendent, secretary and treasurer.

<p>1. A conveyance by an insolvent bank, not made for the benefit of all its creditors and stockholders, to one who, at the time of receiving the instrument, either had actual knowledge of the bank’s condition or was chargeable with notice of its insolvency, is, under section 1979 of the Civil Code, void.</p> <p>2. The evidence in the present case demanded a finding against the validity of the trust deed relied on by the plaintiffs in error in the main bill of exceptions.</p>

Action on insurance policy. Before Judge Norwood. City court of Savannah. August 1, 1898. John W. Wyness held a policy in the defendant company, insuring him against “ bodily injuries effected . . through external, violent, and accidental means,” payable to his wife in case of his death resulting from such injuries alone.

<p>1. The 'rule being that, unless the contrary manifestly appears from the words employed, the language of a code section should be understood as intending to state the existing law and not to change it, the declaration in section 4013 of the Civil Code, that the rule of election does not apply “if the testator has an interest in such property upon which the will may operate,” should not be regarded as inconsistent with the prior law on this subject, but as declaratory thereof. The operation here referred to means full operation according to the whole intention of the testator, and not a partial or limited operation which would execute this intention in part and leave it in part unexecuted.</p> <p>2. Inasmuch as several of the provisions of the will now under consideration in favor of specific legatees could not possibly have operation according to the testator’s manifest'intention, were the adverse claim of one of the legatees to some of the property therein disposed of established, the present case falls within the principle of election, and consequently the rule of election is applicable to it.</p> <p>3. The trial court rightly adjudged that this was a case for election, but the plaintiff in error should not have been called upon to make an election until after an adjudication in this case of the question whether or not he is in fact the owner of some of the property disposed of by the will, and then only in the event this issue is determined in his favor. The judgment of the court below is, by an appropriate direction modified accordingly.</p> <p>4. "When in making a distribution of his estate a testator, in one item of his will provides for the son of a deceased daughter in substantially the same manner as he does for his own children, and when it is perfectly clear from other language used in the will that the grandson’s interest in the estate is to be limited to the provision made for him in such item, the words, “Wherever the word ‘children’ is used in this will, it is my will and desire that it shall be taken and construed to include descendants of children, such descendants to have and take the share and parts of their deceased parents,” appearing elsewhere in the will, do not apply to and embrace the grandson. . ,</p>

<p>Ejectment. Before Washington Dessau, Judge pro hac vice. Bibb superior court. April term, 1898.</p>

<p>1. Under the ruling made in the case of Bank v. Bottenheim, ante, 606, the transaction involved in the present case was infected with usury.</p> <p>2. The record not showing that the lender was a savings bank which paid “interest to depositors and whose deposits were not subject to check,” the transaction can not be upheld as being within the provisions of section 2388 et seq. of the Civil Code.</p> <p>3. A provision in a special charter passed by the General Assembly creating a banking corporation, which authorizes the making by such bank of a contract which would, under the general law of this State regulating the rate of interest, be usurious, is a special law within the meaning of section 5732 of the Civil Code, and is therefore unconstitutional and void.</p> <p>4. Where in a given case the undisputed evidence discloses a scheme or device adopted by a lender of money, from which it is palpably apparent-that no other purpose was in view than an attempt to obtain more than, the lawful interest on the money loaned, it is not error for the judge to-refuse to submit to the jury the question as to whether there is usury in the transaction. If, however, there be doubt as to whether the transaction is a cover for usury or one bona fide entered into in the ordinary course of business, it should be left to a jury to determine from all the facts and circumstances of the case whether it was a legitimate transaction or a mere device to evade the laws against usury.</p> <p>5. An agency to obtain a loan of money certainly terminates when the-money is received by the borrower and all the papers which the transaction calls for have been executed and delivered to the respective parties. It follows, therefore, that after such time the declarations of the person who acted as agent in obtaining the loan are not binding on the borrower.</p> <p>6. When not otherwise directed by the debtor, payments made on a debt infected with usury will be applied first to the payment of the legal interest due at the date of the payment; and any balance remaining after such-interest is discharged will go in reduction of the principal. A plea alleging such payment may be properly filed to an action on the .debt, notwithstanding more than twelve months have elapsed after the payment, before the plea is filed.</p> <p>7. The defense of usury is good even against a bona fide holder of a negotiable promissory note, who acquired the same before its maturity.</p> <p>8. The evidence authorized the verdict, and there was no error committed, by the trial judge which required the granting of a new trial.</p>

<p>Petition for injunction. Before Judge Lumpkin. Fulton superior court. November 19, 1898.</p>

<p>1. While as to lands purchased by a husband with funds belonging to his-wife, to which he took titles in his own name, a resulting trust immediately arises in favor of the wife, she can not assert ownership thereof as against a third person who, in ignorance and without notice of her secret equity and on the faith of the husband’s apparent title, makes to him in good faith a loan secured by a mortgage covering the lands so held in trust. Under such circumstances, the mortgagee, to the extent of his interest in the lands mortgaged, stands upon the same footing as a bona fide purchaser without notice of the trust.</p> <p>2. If, however, such mortgage debt be infected with usury, and the mortgagor is insolvent, it is the equitable right of the wife, as a creditor of her husband, to compel the mortgagee to purge his claim of the usury charged against their common debtor. To this end the wife may, even after a foreclosure of the mortgage, avail herself of the statutory remedy provided for by section 2769 of the Civil Code, whereby a creditor is permitted, upon specified terms, “to contest the validity or fairness of a mortgage lien or debt” prejudicially affecting his interests as such.</p> <p>3. Under the facts alleged, the plaintiff was not entitled to assert her equitable “ownership” of the mortgaged premises.</p>

Action on bond. Before Judge Ross. City court of Macon. June term, 1898.

Injunction. Before Judge Henry. Floyd superior court. December 12, 1898. J. J. Miller died on October 20, 1894, and Ennis became his administrator. He left a widow and one minor daughter, Adella. This minor was married on March 31, 1895, to Frank Miller, and thereupon removed from the house of her mother and settled with her husband upon an adjoining piece of land. She attained majority on May 24, 1895.

<p>1. No question as to the legal sufficiency of an indictment can be properly-raised in a motion for a new trial.</p> <p>2. There was, on the trial of an indictment charging that the accused forged an assignment on the back of a promissory note, no error in admitting in evidence an original note, with an assignment thereon, corresponding with the instrument described in the indictment, when there was positive proof of the execution by the accused of the note tendered in evidence, and also testimony tending to show that he forged the name of the person purporting to have been signed to the assignment on the back thereof. The above is true though it be alleged in the motion for a new trial that the note was tendered in evidence solely “for the purpose of proving the venue,” and that it “did not show where the assignment on. the said note was made.”</p> <p>3. When all of the evidence introduced on the trial of a criminal case strongly and decidedly tended to show that the offense was committed in the county where the trial was had, and there was no evidence warranting even a bare conjecture that it was committed elsewhere, it will be held that the venue was sufficiently proved.</p> <p>4. Proof of the uttering of aforged instrument, in connection with testimony pointing directly to the accused as the author and sole beneficiary of the forgery, will, when there is no evidence suggesting that the forging was done by another, support a conclusion that the accused was the forger.</p> <p>5. Newly discovered evidence, the only effect of which would be to impeach a witness, is not cause fora new trial, when it is manifest that by the exercise of even a slight degree of diligence the evidence in question might have been produced at the trial.</p>

<p>Indictment for unlawfully furnishing liquors. Before Judge Fite. Bartow superior court. January term, 1899.</p>

<p>1. On the trial of one indicted for the offense of assault with intent to rape, when the father of the alleged victim, as a witness for the State, had testified to facts tending to show he had discovered and intercepted the defendant while making such assault upon his daughter, any subsequent conduct of the father in reference to a prosecution of the case, which may be fairly construed as inconsistent with the truth of his testimony, is admissible in evidence in behalf of the defendant. It was therefore error in this case for the court to reject testimony offered by the defendant, showing that he was arrested under a warrant sworn out, the day following the alleged crime, not by the father but by the uncle of the girl alleged to have been assaulted.</p> <p>2. Sayings of the father in such a case, made to the defendant and his alleged victim at the time of or directly after the commission of the alleged crime, are admissible in evidence as part of the res gestae of the transaction ; but any subsequent declarations of his, not made at such a time and place as to constitute a part of the res gestee, can not be admitted in evidence for the purpose of impeaching him as a witness, without the proper foundation being first laid therefor as required by statute.</p> <p>5. When the character of the female alleged to have been assaulted is in issue before the jury, it is not error to exclude testimony offered by the defendant from his own witness as to what such witness had testified about her character on the committal trial, no foundation being laid by the defendant for the impeachment of his witness.</p> <p>4. In charging upon expert testimony of physicians introduced in behalf of ; the State upon a material question of fact at issue, it is error for the court, ' after charging the jury that such testimony is dependent upon the degree of the experience and honesty and impartiality of the witnesses who testified, to further instruct them that “ where such elements are undoubted their testimony is entitled to great weight and consideration.”</p>

<p>While the failure of the court upon a criminal trial, in which the evidence against the accused is entirely circumstantial, to instruct the jury concerning the rule applicable to evidence of this character would, in a close or doubtful case, be cause for a new trial, such failure will not require another trial when the guilt of the accused is clearly and convincingly proved, and the charge as to the amount and character of proof requisite to a lawful conviction is such as to leave no room for doubt that the verdict would have been the same even if the court had in terms stated to the jury that, in order to warrant a verdict of guilty, the evidence must not only be consistent with the guilt of the accused, but inconsistent with every other reasonable hypothesis.</p>

<p>1. On the trial of a defendant for the murder of his wife, his declaration to another, that “he had tried to care for his wife but that she had forced him to do what he had done,” is not admissible in evidence in his behalf, though made in a half-minute after the commission of the crime, it appearing that this statement was made to one in the house of defendant, where he had gone after he.had left the scene of the killing, and the circumstances not indicating that the statement was free from suspicion of afterthought.</p> <p>2. The fact that the solicitor-general, in his concluding argument to the jury, read from a transcript made by the stenographer from his notes of the evidence and commented thereon, is not ground for a new trial, when it does not appear from the motion what were the contents of the transcript, nor that anything was read or said by the solicitor different from what was actually testified to on the trial.</p> <p>3. When the character of the deceased for violence had been put in issue before the jury, it was proper forthe court to instruct the jury that general character of the deceased in this particular could not be proved by specific acts of violence.</p> <p>4. It was not error for the court to charge the jury that “ when the guiltof the accused is made to appear by proof to the satisfaction of the jury beyond a reasonable doubt, the jury are authorized to convict regardless of the good character of the accused”; the court having also charged in the same connection that “the jury has the right to consider the good character of the accused, not merely where his guilt is doubtful under the other testimony in the case, but where such testimony of good character may of itself generate such doubt.”</p> <p>-5. Under the facts in this case, there was no error in charging the jury to the effect that a felonious attack upon another with brickbats and rocks, by virtue of which the party assailed is knocked into a ditch or by virtue of which she falls into a ditch in an effort to escape from the blows of the assailant, would be murder, if such attack was the primary cause of the death of the party assailed, although the death may have resulted from the fall!</p> <p>6. Under the evidence in this case, there was no reasonable theory upon which the defendant could have based his contention that, if he was guilty of any crime at all, it was involuntary manslaughter. Evenif such theory could have been- predicated upon the statement of the defendant, there was no error in omitting- to charge the jury what would be the form’ of their verdict in the event they found the defendant guilty of involuntary manslaughter, no request to charge bn this subject having been made by defendant’s counsel.</p> <p>7. There was sufficient evidence to sustain the verdict of guilty;</p>

<p>1. When an act amendatory of a city charter expressed in its title the purpose of such act to be, to amend the charter “so as to authorize the establishment of a city court,” etc., the last was constitutionally amended by the passage of a third act in the title of which it was recited that the amendatory act was to be amended “so as to change the name of said court,” etc., and in the body it was declared that such court should thereafter be known as the “criminal court” of said city, etc. It was not essential that the last act should undertake in terms to amend the title of the act it sought to amend.</p> <p>2. Under a clause in the city charter conferring powpr on the municipal authorities to adopt such ordinances as they may deem proper “to secure order and quiet in the city,” and “to protect the morals of the city,” the mayor and council have authority to adopt an ordinance making it an offense against the municipality to “ keep for sale, barter or exchange, any vinous, spirituous, or malt liquors within the corporate limits of the city.”</p> <p>3. The competency of a witness introduced for the prosecution, in a trial for the violation of such an ordinance, is not affected by the fact that his name was not endorsed upon the warrant or accusation.</p> <p>4. The evidence warranted the conviction, the sentence imposed was not excessive, and the superior court committed no error in overruling the certiorari.</p>

<p>1. An affidavit which charges the accused simply with the offense of committing a misdemeanor', at a certain time and in a certain county, is sufficient to support an accusation in the county court of such county, charging the accused specifically with selling liquors, and also with contracting to sell, taking orders for, and soliciting the sale of such liquors.</p> <p>2. Under section 428 of the Penal Code, one accusation may he framedagainst the accused, containing two counts, one charging the sale and the other soliciting orders to sell liquors in a certain county where the sale of such liquors is prohibited by law ; and a general verdict oí guilty is not illegal because of a failure by the jury to specify upon which countit is founded.</p> <p>3. The evidence in this case failing to show that the accused either sold or solicited orders for the sale of liquors, a judgment of guilty rendered by the judge of the county court was contrary to law and the evidence, and the judge of the superior court erred in not sustaining the certiorari thereto.</p>

<p>1. The period of time contemplated by the words “days of election” as used in section 446 of the Penal Code, wherein it is declared to be a misdemeanor for any person to sell, give, or furnish spirituous, intoxicating, or malt liquors to another, within two miles of an election precinct on such days, is a day of twenty-four hours, commencing at midnight preceding the opening of the polls, and ending at midnight succeeding the close of the polls.</p> <p>:2. An election for constable, held under a general law which provides for such an election on the same day in each militia district of the several counties of this State, is a State election within the meaning of the statute which forbids the sale or furnishing of intoxicating liquors to any person on days of election, State, county, or municipal; and the fact that the official duties of the officers elected are confined to respective counties or subdivisions of counties does not change the character of the election.</p>

<p>Certiorari. Before Judge Candler. Clayton superior court. March term, 1899.</p>

<p>Accusation of larceny from the person. Before Judge Calhoun. Criminal court of Atlanta. March term, 1899.</p>

<p>Indictment for carrying concealed weapon. Before Judge Harris. Carroll superior court. April term, 1899.</p>

<p>1. An indictment charging that an offense was committed upon a named person is, so far as relates to his identity, sufficiently supported by evidence showing that though his real name was different from that stated in the indictment, he was as well known in the community by the one name as by the other.</p> <p>2. There is in the present case no complaint that any error of law was committed, and the evidence warranted the jury in finding the accused guilty of the offense charged.</p>

<p>i. The dying declarations of a person mortally stabbed by the accused, that “ He had to do it. . . I made him do it. . . I made Harry [the accused] cut me. . . Angus Smith is the cause of it all,” were mere statements of opinion, and not admissible in favor of the accused upon his trial for murder.</p> <p>2. The evidence was amply sufficient to warrant the verdict rendered, and the refusal of a new trial was not erroneous.</p>

<p>"Where one has been convicted in a court having criminal jurisdiction of misdemeanors only, under an accusation charging her with larceny from the house by stealing therefrom certain specified goods under the value of fifty dollars, there is no error in overruling her motion in arrest of judgment, based on the fact that the proof on the trial showed that the-owner of the stolen goods lost others not mentioned in the accusation, which added to those described in the accusation would amount to more than fifty dollars in value. Even if a motion in arrest of judgment were the remedy in any criminal case founded upon a variance between the allegations and the proof, it was properly overruled in this case, for the-reason that the evidence failed to show that all the goods lost were stolen at the same time, and it further appeared that the conviction of the accused was founded on her possession of stolen goods amounting in. value to less than fifty dollars.</p>

<p>Indictment for bigamy. Before Judge Falligant. Chatham superior court. March term, 1899.</p>

<p>Indictment for burglary. Before Judge Henry. Floyd superior court. January term, 1899. •</p>

<p>1. When an indictment has been returned against a defendant charging him with the crime of murder, and it is in due form except that there is omitted from the body thereof the names of the grand jurors, such defect can not be taken advantage of in a motion for new trial made by the defendant after his conviction, when it appears that, through his counsel, he expressly waived the defect, consented for the solicitor-general 16 to insert the names of the grand jurors in the body of the indictment, and then filed his plea of not guilty, upon which issue alone he went to trial before the jury.</p> <p>2. When the State has consented to a verdict of not guilty as to one of two defendants jointly on trial under ail indictment for murder, it is not error for the court to withdraw from the consideration of the jury the statement that has been made on the trial by such defendant.</p> <p>4. On the trial of a defendant for murder, it is error for the court to charge the jury as follows: “If you find that the circumstances were sufficient to excite the fears of bodily harm less than death, or such bodily harm as might reasonably cause death, such killing would then be voluntary manslaughter.” But where the evidence, and even the statement of the accused itself, demanded a conviction of an offense at least as great as voluntary manslaughter, the crime of which the accused was found guilty, this court will not reverse the judgment of the court below in refusing a new trial, on account of such error in the charge, especially in view of the fact that the charge as a whole fairly presented to the jury the law governing the issues in the case.</p>

<p>: Certiorari. Before Judge Harris. Carroll superior court. August 12, 1898.</p>

<p>Certiorari. Before Judge Littlejohn. Macon superior court-November term, 1898.</p>

<p>Complaint. Before Judge Harris. Carroll superior court. October term, 1898.</p>

<p>Petition to quash execution, etc. Before Judge Hammond. City court of Griffin. September term, 1898.</p>

<p>1. The registry act of 1889 was intended not only for the protection of innocent creditors who might acquire liens or transfers of property of a defendant in fi. fa. to secure their debts, but also for the protection of bona fide purchasers for value who obtain title to such property by absolute deed. When, therefore, there has been a failure to record a fi. fa. within ten days from the rendition of the judgment upon which it issued, as. prescribed in section 2779 of the Civil Code, and thereafter the defendant in fi. fa , before the registry of the execution, sells land to an innocent purchaser for value who has no knowledge or notice of the existence of the judgment, the title to the land passes to such purchaser free from the lien of the judgment. This is true notwithstanding the purchaser made no investigation or inquiry as to the existence of such a lien before paying for and receiving his deed to the property.</p> <p>2. The fact that the defendant in fi. fa. in such a case remained in possession of the land the balance of the year after such a sale, for the purpose of gathering his crop grown on the premises, and the further fact that the purchaser did not record his deed until after the record of the fi. fa. on the general execution docket of the superior court, can not operate to render the property so purchased subject to the lien of the judgment.</p> <p>3. The facts upon which this case was submitted to the judge below, without the intervention of a jury, demanded the judgment finding the property not subject.</p>

<p>Action on bond. Before Judge Hammond. City court of Griffin. December term, 1898.</p>

<p>Equitable petition. Before Judge Hart. Morgan superior ■court. September term, 1898.</p>

<p>Certiorari. Before Judge Candler. Laurens superior court. November 15, 1898.</p>

<p>Complaint. Before Judge Beck. Monroe superior court. September 30, 1898.</p>

<p>Action for damages. .Before Judge Hart. Wilkinson superior court. April term, 1898.</p>

<p>1. While failure to make returns as required, by law may be cause for removing an executor, it is not a compulsory ground for so doing, but one within the discretion of the court.</p> <p>:2. In the present case, a sufficient excuse for failing to make returns was shown, and there was no error in adjudging upon the proofs submitted that the other grounds upon which a removal was prayed for were without substantial merit.</p>

<p>Attachment. Before Judge Smith. Montgomery superior court. November term, 1898.</p>

<p>Under the rulings made by this court in the cases of Paschal v. State, 84 Ga. 326, and Grant v. State, 87 Ga. 265, the verdict in the present case was warranted by the evidence. Simmons, C. J., and Lewis, J., dissenting.</p>

<p>Illegality. Before Judge Hart. Greene superior court.. August term, 1898.</p>

<p>Trover: Before Judge Hart, Morgan superior court. September term, 1898.</p>

<p>Where a person owes an attorney at law and delivers him certain open accounts for collection, with the understanding between them that the attorney is to collect them and to appropriate one half of the collection to the antecedent debt and the other half as his fees for collecting, there being no written assignment of the accounts and no intention to pass title thereto to the attorney, the latter obtains no legal or equitable title to the accounts.</p> <p>When, therefore, the attorney reduces the claims to judgment and the judgment debtor is garnished by another creditor of the person who placed the accounts with the attorney for collection, and the money is brought into court, the attorney’s claim of title will not prevail as against the rights of the garnishing creditor. But his lien as attorney under the contract made with his client will, if reasonable as to amount and not the result of a mere device to defraud creditors, prevail over the claim of the garnishing creditor for the amount agreed upon between him and his client for such fees.</p>

<p>Habeas corpus —certiorari. Before Judge Littlejohn. Chattahoochee superior court. March term, 1899.</p>

<p>Money rule. Before Judge Spence. Dougherty superior court. October term, 1898.</p>

<p>Equitable petition. Before Judge Harris. Troup superior court. November term, 1898.</p>

Levy and claim— certiorari. Before Judge Smith. Monroe superior court. August term, 1898. Brown rented land of Castlen, agreeing to pay two bales of cotton for the year’s rental, and continued under this contract until some time in April of that year, when Holmes went to Castlen and told him that Brown owed Holmes for a mule, and that he could not let him keep it unless Castlen would let Holmes become Brown’s landlord, by renting to Holmes the land.

<p>Action for damages. Before Judge Hart. Morgan superior court. December 17, 1898.</p>

<p>Practice in the Supreme Court.</p>

<p>A deed more than thirty years old, apparently genuine and coming from the proper custody, under which possession of the land it purports to convey has been consistent, is admissible in evidence as an ancient document without proof of execution; nor does the fact that it has been recorded change its character.</p> <p>Such a deed is not subject to attack as a forged instrument by an affidavit on which a separate issue must be made and tried. When offered as an ancient document, it is entitled to admission in evidence as such, without any preliminary jiroof of execution, and its genuineness can only be attacked by the introduction of evidence on the trial of the case in which it has been admitted as evidence. It was, therefore, erroneous, when such a deed was tendered in evidence, to reject it on the ground that its execution had not been proved.</p>

<p>Levy and claim. Before W. A. Brown, judge pro hac vice. Henry superior court. October term, 1898.</p>

<p>1. When a husband, for the purpose of paying his debt, sells to his creditor personal property of his wife, and the creditor knows at the time that the property belongs to the wife, such creditor acquires no title thereto, although the wife consented to the sale or transfer.</p> <p>2. In an action of bail-trover by the wife against such creditor of the 'husband, for the purpose of recovering the property, where bond was given by the defendant as provided in such actions, and it appeared from the evidence in behalf of the plaintiff that the defendant was in actual possession of the property at the time of the suit, to which action he bad filed his plea claiming title to the property, it was error in the judge to grant a nonsuit on the ground that no demand was shown by plaintiff upon defendant for the property before the institution of her suit.</p>

<p>1. Where one has been duly appointed the guardian of the property of a minor, it becomes his duty to take possession of and preserve for the benefit of his ward all property, real and personal, within his knowledge that belongs to the minor. If, therefore, such guardian knows that his ward has interests in certain lands, and consents for a person -who has no title thereto to enter upon and use such land, and in consequence of such negligent conduct on the part of the guardian the ward loses the realty itself as well as the rents, issues and profits therefrom, the guardian becomes liable not only for the rents but for the value of the land.</p> <p>2. When there was a settlement between the guardian and ward after the latter had arrived at age, and, on account of the relation between the parties, the ward reposed special confidence and trust in her guardian, believing that he had made a full showing for all the property owned by her, but when she, several years afterwards, discovered that she had interests in certain real estate of which her guardian knew before and at the time of settlement and had fraudulently concealed from her, and had also, by fraudulent collusion with a party who had no interest in the land, suffered such stranger to the title to remain upon the premises, and, in a year after such discovery of the fraud, the ward instituted her suit against the guardian for the value of the land and the rents and profits therefrom which she had lost through this negligent conduct of her guardian, her action was not barred by any statute of limitations.</p> <p>3. In such a case the superibr court of the county of the defendant’s residence has jurisdiction, notwithstanding the land may be located in another county.</p> <p>4. It follows that the court erred in sustaining a general demurrer to the plaintiff’s equitable petition.</p>

<p>A county is not liable for damages resulting from a failure to keep in repair-a bridge which was constructed under contract more than seven years prior to the time when such damages occurred, although no bond wastaken by the county from the contractor as required by law.</p>

<p>Injunction. Before Judge Spence. Baker county. March 15, 1899.</p>

<p>An agreement to release one of two makers of a joint promissory note from liability thereon is not binding unless such agreement is supported by a consideration. The agreement of release which was set up in the present case is shown by the evidence to have been entirely without consideration. Consequently a verdict in favor of the defendant was contrary to law.</p>

<p>1. On the trial of a complaint for land in which the plaintiff relied for recovery upon a sheriff’s deed made in pursuance of a sale by virtue of a fi. fa. for State and county taxes, issued against such land under the act approved February 28, 1874, after due proof of the loss of the original execution, a record of the execution made at the time the sheriff’s deed was recorded in the office of the clerk of the superior court of the county where the land lay was admissible in evidence in support of the deed, the parties consenting that such record might be used in lieu of an exemplified copy thereof.</p> <p>'2. When it appeared, however, that the land which was actually levied upon and sold by the sheriff, and by his deed conveyed to the purchaser, was lot number 219 in the 28th district of the county where the sale took place, and that the description of the lot as contained in the record of the fi. fa. was lot number 219 in the 26th district of the county, it was permissible for the plaintiff to show by competent evidence a clerical mistake made by the clerk in entering the fi. fa. on the record by writing the wrong number of the lot. It was therefore not error for the court to admit in evidence, over the objection of defendant’s counsel, the sworn testimony of a witness swearing from personal knowledge, to the effect that a fi. fa. against the lot actually sold, to wit, lot number 219 in the 28th district, was issued by his predecessor in office and sent to the sheriff for the purpose of levying upon and selling the land in dispute, on the ground that an exemplified copy of such execution from the office of the comptroller-general was the highest evidence; it appearing that the original had never been returned to the office of the comptroller-general, and it not appearing that there was any copy thereof in his office or in his custody or control.</p> <p>3. The fact that such an execution was issued by the comptroller-general in 1877, on account of the non-payment of taxes on the land for the year 1874, would not per se raise the presumption that the fi. fa. was illegally-issued, nor was it necessary in such a case for the comptroller to recite in the execution who the owner of the land was, or that he was unknown and that the land had not been returned for taxes.</p> <p>4. Such a title makes out a prima facie case in behalf of the plaintiff upon which he could recover the premises in dispute, where the defendant fails to show anything impeaching the validity of the sale, and also fails to show a better title in himself by prescription or otherwise.</p> <p>5. The evidence in this case was not sufficient to authorize a finding that this sale was void on account of excessiveness of the levy.</p> <p>6. Under the testimony in the case, the defendant failed to show such an adverse possession of the premises in dispute, under color of title, for seven years, as under the law would have given him a valid prescriptive title to the property. If, therefore, there was any error in any of the-charges or rulings complained of on the subject of prescription, it was harmless to the plaintiff in error.</p>

<p>Contest of election. Before Judge Littlejohn. Sumter county. September 6, .1898.</p>

<p>1. Where a claim is interposed to property levied upon under a common-law execution, it is, in order to change the onus from the plaintiff in fi. fa. to the claimant, incumbent upon the former to show title in the-defendant, or that subsequently to the rendition of the judgment he was in possession of the property.</p> <p>2. A ground of a motion for a new trial assigning error upon the admission of evidence will not be considered, unless it set forth the evidence objected to in such manner that the question of its admissibility may be decided by this court without reference to the other parts of the record.</p>

<p>Interpleader. Before W. E. Simmons, judge pro liac vice. Pulaski superior court. August term, 1898.</p>

<p>1. A vendee of land upon which a trespass had been committed while it was the property of his vendor has no right of action against the trespasser for damages thus occasioned, which were recoverable by the vendor; aliter, ■ as to new and additional damages growing out of a continuation of the original trespass after the vendee acquired title.</p> <p>2. Where land devised as a whole to several persons was lawfully divided ^in kind, a devisee who received as his share a portion which had already been injured by the commission of a trespass thereon should, for the purpose of determining whether or not he can in his individual right and as sole owner of this portion maintain an action for the damages resulting thereto from such trespass, be treated as occupying the position of one who acquired by purchase realty thus injured while belonging to his vendor.</p> <p>3. A right to bring an action of trespass for damage to realty does' not “run with the land;” nor is such a right assignable by a landowner to^ his successor in title.</p> <p>4. When, by reason of a trespass thereon, realty has been so injured as to render it permanently useless and valueless to the owner, the damages thus occasioned are recoverable by him in a single action.</p> <p>5. A purchaser of land which had been thus injured in consequence of the wrongful occupancy and use thereof by a railroad company does not show a new or fresh cause of action against it by alleging that, because of the exposure of his live stock to danger from the running of its trains, he has been compelled to incur expense in erecting fences for their confinement and protection.</p> <p>6. Nor can such a purchaser “sustain an action against the company for the value of the land, nor for the use and occupation of the right of way, aa on an implied promise to pay him therefor.”</p> <p>7. The petition in the present case set forth no cause of action, and was rightly dismissed on demurrer.</p>

<p>Certiorari. Before Judge Butt. Marion superior court. October term, 1898.</p>

<p>1. When a suit is brought against a trustee, seeking to charge the trust estate with a debt for which the trustee is only personally liable, this fact being known to the plaintiff, a judgment rendered therein against the trustee will not be conclusive upon the beneficiaries of the trust, unless it appear that such beneficiaries were sui juris and were parties to the suit, or consented to the judgment. The conduct of the plaintiff in bringing such an action subjects him to the charge not only of implied but of actual fraud.</p> <p>2. A petition filed by the beneficiaries of a trust estate to enjoin the enforcement of a judgment against their trustee, in a case of the character above described, to which they were not parties, is not such a proceeding to set aside a judgment as must be brought within three years from the rendition of the judgment.</p>