text:
    773.
    UNITED STATES FIDELITY AND GUARANTY COMPANY v. MURPHY, sheriff, for use, etc.
    1. Where the obligation of a forthcoming bond is, b} its terms, joint and severable,. the obligee in the bond may sue the surety thereon without joining the principal.
    2. An agent is authorized to execute a forthcoming bond for his principal without written authority. Even if the principal should repudiate the-act of the agent as unauthorized, this would not affect the liability .of the surety; for in any event the surety is bound. But in any ease, the authority of the agent to execute such bond is immaterial, where the principal receives the property from the levying officer under the bond so executed.
    3. After a claim has been interposed to personal property levied upon, and a forthcoming bond has been executed and delivered to a levying officer, and the property so levied upon released and delivered into the possession of the claimant and principal, neither principal nor surety can thereafter question the formal execution of the bond, and its approval and acceptance by the levying officer.
    4. A lien of a judgment obtained more than four months prior to the filing of a petition in bankruptcy can not be divested by the adjudication. And where personal property has been levied upon and a forthcoming bond given therefor, the subsequent adjudication that the defendant in execution is bankrupt, and the seizure by the bankruptcy court of the-property levied upon and described in the forthcoming bond, can not affect the rights of the plaintiff in execution, and -will not release the surety on the forthcoming bond from his obligation to produce the property according to the terms of the bond.
    Action on bond, from city court of Albany — Judge Crosland. September 14, 1907.
    Argued December 17, 1907,
    Decided March 16, 1908.
    In a suit on a forthcoming bond, Hobbs & Livingston obtained a Judgment against the Minnesota" Lumber Company; and execution was issued and levied upon certain personal property described in the levy and in the bond. This property was claimed by Clements, who executed a forthcoming bond, with the United States Fidelity and Guaranty Company as surety. Subsequently the claim, interposed by Clements was withdrawn and the property was readvertised for sale, and, not being produced at the time and place of sale, in accordance with the terms of the bond, suit was filed against the surety by Murphy, sheriff, for the use of Hobbs & Livingston. The defendant filed a demurrer on the following grounds: (1) The petition is defective in that there is a non-joinder of parties defendant. The contract declared upon shows, that one T. B. •Clements is the principal obligor, and that this defendant is only surety thereon, and that the contract is joint and not severable; and therefore a judgment can not be rendered against this defendant, unless judgment is rendered against the principal before or at the same time, there being no severable liability against this defendant, under said bond. (2) It affirmatively appears that the bond declared upon was never attested, approved, or accepted by the levying officer, by any indorsement or signature thereon by said officer. The demurrer was overruled, and the defendant excepted.
    The defendant pleaded non est factum as to Clements, the principal obligor in the bond; and on demurrer this plea was stricken, and the defendant excepted. The defendant further, as a special plea, set up its inability to deliver the property according to the terms of the bond, at the time and place of sale, by reason of the following facts: That immediately after the filing of the claim and the execution of the bond sued upon, the property levied upon and described therein was surrendered- by the claimant to the Minnesota Lumber Company, defendant in execution, for its use. Shortly afterwards, the Minnesota Lumber Company was adjudged an involuntary bankrupt. Its trustee in bankruptcy seized and sold this property, and applied the proceeds in satisfaction of liens superior to that of Hobbs & Livingston. The claim of Clements was withdrawn in the city court of Moultrie, where it was tiled prior to the trustee’s sale, and the purchaser at the sale acquired a legal title to the property. There are other defenses set up in the voluminous plea of the defendant, but the foregoing are alone material.
    The case was tried by the judge without the intervention of a jury, upon an agreed statement of facts, substantially as follows: 1. On February 16, 1904, a common-law judgment was rendered in the' city court of Moultrie in favor of Hobbs S¿ Livingston against the Minnesota Lumber Company for $1,820 principal, and $180 attorney’s fees. The Minnesota Lumber Company carried the case to the Supreme Court, where it was affirmed on condition that the attorney’s fees be written off within a certain time. This was done as required, and the judgment of the Supreme Court was then made the judgment of the lower court. 2. The execution in favor of Hobbs & Livingston against the Minnesota Lumber Company was entered on the general execution docket of Colquitt county on March 2, 1904, and was also duly entered on the execution docket of the city court of Moultrie. This execution was properly levied on April 29, 1904, by the deputy sheriff ■of the city court of Moultrie, who was also deputy sheriff of Colquitt county, on the property set forth in the copy of the levy and the copy of the bond attached to the original petition in the instant case. 3. The sheriff of the city court of Moultrie duly advertised this property and was proceeding to sell it, as set out in the original petition, when the sale was arrested by the claim of Clements and the bond; and the sheriff, on account of the claim and this 'bond, failed to sell the property. The sheriff approved this bond and accepted it, though he did not write his approval on it. . He did write his approval on the claim bond (which was given at the same time), in the terms of the law, and on the same piece of paper, both the claim and the bond being written on the same piece of paper, the one following the other, and the security on each being the same. 4. The claim was voluntarily withdrawn by Clements on July 10, 1905, and the withdrawal entered on the record of the city court of Moultrie. 5. The sheriff of Colquitt county, during the month of May, again legally advertised the said property for sale on the first Tuesday in June, 1907. The property was not forthcoming, and for that reason could not be sold. It was not produced at the time and place of. sale by Clements or any one else. 6. After giving the bond, the property therein described remained where it was before and at the time of the levy, and continued to be used by the Minnesota Lumber Company. 7. On March 5, 1905, the Minnesota Lumber Company, upon the petition of unsecured creditors, was adjudicated a bankrupt, and Hobbs & Livingston were scheduled as lien creditors by the Minnesota Lumber Company in the bankruptcy proceedings. Hobbs & Livingston never at any time proved their claim in the bankruptcy court, nor in anywise recognized that court or had anything to do with it. No order was ever taken making them parties to that litigation. 8. On March 11, 1903, the Minnesota Lumber Company executed and delivered to the Southern Pine Company of Georgia a valid mortgage upon practically all its property, including that described in the levy of the sheriff and the forthcoming bond, for $15,000. This mortgage was duly recorded, and the property covered by it, exclusive of that described in the levy and bond in this case, at the time of the levy of this fi. fa. was worth at least $25,000. The value of the property levied on, and for which the forthcoming bond was given, was $2,500 at the time the claim was made and the forthcoming bond given. $4,000 was due to the Southern Pine Company on said mortgage by the Minnesota Lumber Company, at the time of the adjudication in bankruptcy. The Southern Pine Company proved its claim in bankruptcy. 9. On July 10, 1907, the referee ordered that all the property of the bankrupt, except specified real estate, be sold, free from all liens and incumbrances, and that said liens and incumbrances be discharged as against the property and attach upon the proceeds thereof, with the same right to creditors against the proceeds as they had against the property. This order was passed at a meeting of the creditors of the bankrupt, after notice had been given to all the creditors scheduled by him, including Hobbs & Livingston. On July 17, 1905, after due advertisement according to the order of the bankrupt court, the property of the bankrupt, including that described in the levy and the forthcoming bond in the instant case, except one locomotive engine described in said levy and bond, was sold at •auction in Colquitt county for $562; and on July 31, 1905, the said locomotive engine was sold by the trustee in bankruptcy for $331. 10. On August 7, 1905, at a legal meeting "of the creditors of the bankrupt, held for the purpose of hearing the trustee’s report, the sale of all of the said property was confirmed unto the Southern Pine Company of Georgia, it being the purchaser at the trustee’s sale and thereby acquiring the title to all the property of the bankrupt, so far as the bankrupt court could vest title, including the property described in the levy of the sheriff and the forthcoming bond, and the proceeds of the sale were, under order of the referee, distributed among the creditors of the bankrupt, holding liens upon the property, which liens, together with the cost of administration by the bankrupt court, consumed all of the assets of the Minnesota Lumber Company. All the property did 'not bring enough to pay in full the mortgage of the Southern Pine Company and the liens of the laborers-and materialmen, in addition to the cost of administration in bankruptcy. The property brought at the trustee’s sale $18,000. 11. All of the creditors who participated in the distribution of the assets of the Minnesota Lumber Company, with the exception of the Citizens Bank of Valdosta, the Merchants Bank of Valdosta, and the Southern Pine Company of Georgia, held liens, either as laborers or supply men, which, while they were superior in dignity to the liens of Hobbs & Livingston, were junior as to time; that is, those debts were contracted subsequently to the levy of the fi. fa. By statute, however, they were superior liens. 12. Before the Minnesota Lumber Company was adjudged bankrupt, Clements was adjudged a bankrupt by the United States District Court of Minnesota.
    A judgment was rendered by the trial court against the United States Fidelity and Guaranty Company for principal and interest; and it excepted, making numerous assignments of error. Those deemed material are sufficiently indicated in the foregoing statement.

      T. I[. Pwrher, for plaintiff in error.

      Shipp & Kline, John D: Pope, contra.
   Hill, C. J.

The forthcoming bond executed by Clements, claimant, with the United States Fidelity and Guaranty Company as surety, was, by its express terms, “joint and severable,” and upon a breach of the bond- the obligee therein could sue either one or both of the obligors.

The ¡olea of non est factum as to the principal was properly stricken on demurrer. It is not necessary that the agent who executes a forthcoming bond for his principal should have written authority; neither is it necessary that such bond should be under seal; and the fact that the agent executes such bond under seal does not affect its validity. Civil Code, §3035; Head v. Woods, 92 Ga. 548 (17 S. E. 928). Even if the principal should repudiate the act of the agent, this would not affect the liability of the surety; for in any event the surety is-bound.' Civil Code, §3035. In this case the act of the agent was fully ratified by the principal. The personal property described in the bond was delivered into the possession of the claimant upon the execution of the bond, and the claimant subsequently withdrew his claim and consented that the execution proceed.

The contention that there was no approval and acceptance of the forthcoming bond by the levying officer is eliminated by the stipulation that the sheriff did in fact approve and accept the bond; though he did not write his approval upon the bond itself, but wrote his approval upon the claim bond which was given at the same time and written upon the same piece of paper as the forthcoming bond. Besides, the parties to the bond all acted on it. The sheriff released the property and delivered it to the claimant, upon the .execution of the bond; and the principal and the surety will now be estopped from questioning either its formal execution, or its approval and acceptance by the levying officer.

. There is no merit in the point that the suit should have been dismissed because the execution under which the property was advertised the second time was proceeding illegally, in that the execution had been changed by striking therefrom the amount of $180, attorney’s fees. It is admitted in the agreed statement of facts that these attorney’s fees were written off voluntarily by the defendant, as required by'the judgment of the Supreme Court. After the judgment of the Supreme Court had been made the judgment of the lower court and the judgment for attorney’s fees written off, the claimant, in judieio, withdrew his claim and consented that the fi. fa. based upon the said judgment should proceed. It therefore matters not who struck the attorney’s fees from the execution in order that it might conform to the judgment. It certainly could not result in injury to the defendant that the amount of the claim against him had been reduced to the extent of the attorney’s fees. The alteration of the fi. fa. in this respect in no way affected the case, and was made in compliance with the judgment of the Supreme Court, and in conformity to the Civil Code, §5114. In short, we think every fact material and necessary to show the liability of the defendant in this case is admitted: to wit, the execution and the levy, the value of the property levied upon, The giving of the bond and the breach of the bond; and the finding in favor of the plaintiff was demanded, unless the principal obligor in the bond and his security were released from their obligation by the bankruptcy of the Minnesota Lumber Company, the defendant in execution, and the seizure by the bankruptcy court of the property levied upon.

The bankruptcy court had no right to seize the property, which, four months prior to the adjudication in bankruptcy, had been levied upon under a valid process from the State court. If the forthcoming bond had not been given, clearly no other court or officer could take the property which had been seized by the sheriff by virtue of the execution against the defendant; and the forthcoming bond is simply a substitute for the property levied upon. It is well settled that the lien of a judgment obtained more than four months prior to the petition in bankruptcy is superior to the adjudication in bankruptcy, and that subsequent proceedings in bankruptcy do not divest jurisdiction of the State court'to enforce such lien. 7 Rose’s Notes on U. S. Reports, 1036. Kaminsky v. Horrigan, 2 Ga. App. 332 (58 S. E. 497) ; National Surety Co. v. Medlock, 2 Ga. App. 665 (58 S. E. 1131). More than four months before the adjudication in bankruptcy, the personal property described in the forthcoming bond was in the hands of the sheriff on final process. This property could not be legally taken from his possession by the bankruptcy court. Fleming v. Odum, 59 Ga. 363, The forthcoming bond being for the protection of the sheriff in surrendering his possession of the personal property to the principal in said bond, the trustee in bankruptcy had no legal authority to dispossess him; and it is not to be presumed that be could have done so if objections had been interposed either by the principal or the surety. It is true that the surety in this case did bring to the attention of the bankruptcy court the judgment lien of Iiobbs & Livingston upon the property described in the forthcoming bond, but it does not appear that any objection was made by the surety or the principal to the seizure of the property bj the bankruptcy court. If timely and. appropriate legal objection had been interposed, it can not be doubted that the bankruptcy court would have recognized the prior jurisdiction of the State court and released the property virtually in custodia legis under process from the State court. The seizure of the property by the bankruptcy court being illegal, and neither the surety nor his principal interposing any objection to such seizure, the surety, the defendant in this ease, can not claim any benefit from the illegal seizure.

When property is taken and held under process, mesne or final, of a court of competent jurisdiction, it is in the custody of the law and within the exclusive jurisdiction of the court from which the process has issued, and the possession of the officer can not be disturbed by process from any other court. Corvell v. Heyman, 111 U. S. 176 (28 L. ed. 390, 4 Sup. Ct. 355); Fulghum v. Wiliams Co., 114 Ga. 647 (40 S. E. 695, 1 L. R. A. (N. S.) 1055, 88 Am. St. R. 48). We think the principle here announced applies to property seized under process and released by virtue of a statutory forthcoming bond. Eyster v. Gaff, 91 U. S. 521 (23 L. ed. 409); Carling v. Seymour, 113 Fed. 483 (51 C. C. A. 1). Of course, the discharge in bankruptcy of Clements, the principal in the forthcoming bond, in no wise affected the rights of the plaintiff, or released the surety from the obligation of his bond. Wolf v. Stix, 99 U. S. 1 (25 L. ed. 309); Phillips v. Solomon, 42 Ga. 192; Kaminsky v. Horrigan, supra. It is admitted by the learned counsel for plaintiff in error that the adjudication in bankruptcy, being more than four months after the rendition of the judgment, can not be set up as a matter of defense by the surety. But he insists that he is not setting up this adjudication as a defense, but claiming that before the time arrived for compliance with the obligation of the bond, the property described in the bond had been taken from the possession of the principal by the law, under and by virtue of a lien which was superior in dignity to the lien of the State process, under which the property was first seized. Pie bases this contention on the following facts: It was admitted by the plaintiff in the court below, that the Minnesota Lumber Company, the defendant in execution, had executed and delivered to the Southern Pine Company a valid mortgage upon all of its property, including all that described in the levy of the sheriff and the forthcoming bond; that this mortgage was a lien of superior dignity to the judgment in favor of Hobbs & Livingston, and that the proof of this mortgage lien by the Southern Pine Company in the bankruptcy proceedings was tantamount to a foreclosure of the same. It is contended that as all the property described in the forthcoming bond had been sold under direction of the court of bankrupte3, to satisfy this superior lien of the Southern Pine Compan3, the principal in the bond was discharged from a compliance with his obligation to produce the property at the time and place of sale, because he had no power to do so, it having been taken from his possession by the bankruptcy court before the time arrived for compliance with such obligation. But the Southern Pine Company did not have the Minnesota Lumber Company adjudged a bankrupt. The personal property covered by the forthcoming bond was not seized for the purpose of satisfying the lien of the mortgage in favor of the Southern Pine Company. It was seized by the trustee in bankruptcy, ánd was sold and applied in pa3'ment, not only of the lien of the 'Southern Pine Company, but of other claims that were inferior to the ñ. fa. in favor of the plaintiff in the court below. The balance due on the mortgage of the Southern Pine Company was only $4,000. The property seized by the sheriff, under the fi. fa. in favor of Hobbs & Livingston, described in the forthcoming bond, it is admitted, was of the value of $25,000. The property of the bankrupt, when sold, brought the sum of $18,000, and the mortgage of the Southern Pine Company covered the entire property of the bankrupt. Therefore, the property covered by the mortgage, excluding that which was levied upon by the fi. fa., was more than sufficient to pay off the balance due on the mortgage; and the holder of the fi. fa., under well known equitable principles, could have compelled the holder of the mortgage lien to make the money out of other property than that levied on by virtue of the State-court process, covered by the mortgage. The other liens which were allowed to accumulate against the property levied upon by the State-court process and described in the forthcoming bond were all subsequent to that lien and placed on tlie property after it had been turned back by the claimant into the possession of the defendant in execution, the Minnesota Lumber Company. Laborers’ and supply men’s liens, although superior to a lien of a judgment, under the facts of this case were not entitled to priority of payment out of the property which had been seized by the sheriff; for this property, although it had been turned over to the claimant upon the giving of the forthcoming bond, was, nevertheless, in the constructive possession of the State court by virtue of the levy, and no liens could thereafter be placed upon it which would change the status already acquired in the State court. The only lien, therefore, which was prior in dignity to that of the fi. fa. in favor of Iiobbs & Livingston was that of the mortgage of the Southern Pine Company, on which there was only a balance due of $4,000; and this mortgage covered property which was worth $25,000, and which was actually sold by the trustee in bankruptcy for $18,000. All of the proceeds were administered by the bankruptcy court, and there was nothing left to satisfy the execution in favor of Hobbs. & Livingston.

In our judgment, Hobbs & Livingston acted wisely in not going into the bankruptcy court, or in any way subjecting their rights to its adjudication. They were amply protected, under the facts of this case, by the forthcoming bond; and such rights can not be affected by the conduct of the claimant subsequent to the execution of the forthcoming bond, or the conduct of the defendant in execution in allowing liens to accumulate upon the property delivered into its possession b) the claimant and covered by the forthcoming bond, nor by the unauthorized seizure by the bankruptcy court of the personal property which had been seized under valid process from the State court, and which had been released by the levying officer under the terms of the bond which the law accepted as a statutory substitute for its possession, the terms of which bond required that when it was called for by the State-court process, under which it had been seized, it should be produced.

The judgment in favor of the plaintiff, we think, was demanded by the evidence and the law applicable thereto.

Judgment affirmed.


source: Caselaw Access Project

author: Hill, C. J.

license: Public Domain

text:
    779.
    Georgia Railroad & Banking Company v. Williams.
    Action for damages, from city court of Richmond county. Judge Eve. September 18, 1907v
    Submitted December 18, 1907,
    Decided March 16, 1908.

      Joseph B. & Bryan Gumming, for plaintiff in error.

      Austin Branch, A. L. Franklin, contra.
   Hill, C. J.

This ease is controlled by the decision of this court in the case of Georgia Railroad & Banking Co. v. Williams, 3 Ga. App. 272 (59 S. E. 846), holding that the judge of the lower court erred in not sustaining a general demurrer to the petition. Judgment reversed.


text:
    790.
    HUGHES, for use, etc. v. MOUNT VERNON BANK.
    1. The lien of a mortgage will, as a general rule, continue in life, within the statute of limitations, until the debt secured has been paid. A mortgagee does not lose his lien by suing the mortgage notes to judgment and having the mortgaged property sold' on execution.
    2. A mortgagee sued the mortgage notes to judgment and had the execution levied .on the premises covered by the mortgage. By virtue of an agreement between the mortgagor and mortgagee, who was also plaintiff in fi. fa., the entire estate was sold; and it brought full value. Just prior to the sale a third person lodged with the sheriff a general common-law judgment against the mortgagor, of date younger than the mortgage but older than the judgment based on the mortgage debt, and ordered the sheriff to hold up the fund arising from the sale. Held, that on a rule brought against the sheriff for a distribution of the fund, the mortgage should first be paid and the residue applied to the judgment of the intervenor. Both judgment creditors have liens, but the lien of the mortgage is older, and is therefore entitled to priority.
    Money rule, from city court of Mount Vernon — Judge Geiger. September 9, 1907.
    Submitted December 18, 1907,
    Decided March 16, 1908.

      M. B: Galhoun, L. C. Underwood, for plaintiff.
    17. M. Lewis, for defendant.
   Hill, C. J.

The Mount Vernon Bank held four notes secured by a mortgage on real estate. The bank sued the notes to judgment and had the execution levied on thepnortgaged property. It was agreed between the mortgagor and the mortgagee that the entire estate should be sold. Just before the sale, the plaintiff in error lodged with, the sheriff a general judgment against the mortgagor, of date younger than the mortgage but older than the judgment based on the mortgage debt, and notified the sheriff to hold up the funds. The property was then sold; and all parties admit that it brought full value. The plaintiff in error claims that, his judgment is entitled to priority. This is'the sole question before the court.

“A mortgagee does, not waive his lien by suing and recovering judgment on the note or bond secured, or attaching the pronerty of the mortgagor in an action on the mortgage debt.” 27 Cyc. 1164 (e); Lanahan v. Lawton, 50 N. J. Eq. 276 (3), (23 Atl. 476); Clark v. Tuggle, 18 Ga. 605; Ely v. Ely, 6 Gray (Mass.), 439; Jones on Mortgages (3d ed.), §1215. The mortgage creates a lien on the premises to secure the payment of the debt, and, as a general rule, the lien will continue-until the debt is paid. The merger of the notes into judgment does not extinguish the debt, and until the judgment is satisfied the lien does not fall. Torrey v. Cook, 116 Mass. 163; Ely v. Ely, supra; Butler v. Miller, 1 N. Y. 496. “When property which is subject to a mortgage which has not been foreclosed has been levied on by other process, the lien of which is junior to that of the mortgage, the effect of the levy is to seize the equity of redemption only, and this interest in the property will be all that will pass k> the purchaser. See Harwell v. Fitts, 20 Ga. 725; Hynds v. Crosby 93 Ga. 542 (21 S. E. 63). The sale may, however, be converted into a sale of the entire interest in the property, by the concurrent consent of the mortgagor, mortgagee, and levying creditor, and in such case the proceeds of the sale will be applied to the payment of the unfore■ciosed mortgage according to its priority. Civil Code, §2759.” DeVaughn v. Byrom, 110 Ga. 904, 907 (36 S. E. 267); Milner v. Pitts, 117 Ga. 794 (45 S. E. 67); Osborne v. Hill, 91 Ga. 137 (16 S. E. 965). Two liens attach to the funds arising from the sale, — the lien of the mortgage, and the lien of the other judgment creditor against the equity of redemption, by virtue of his general judgment against the mortgagor. Since the mortgage lien is older, it should be first satisfied. “The priority of liens, whether by mortgage or judgment, is governed exclusively by the date of their acquisition, the first in 'time being the first in right.” 27 Cyc. 1173; Marshall v. Hodgkins, 99 Ga. 592 (27 S. E. 748).

Judgment affirmed.


author: Russell, J.

text:
    818.
    NEW YORK LIFE INSURANCE CO. v. RHODES.
    1. Evidence may be introduced to attack a certiorari bond upon the ground that it was executed or signed by one without authority, but the courts will not hear testimony in support of the validity of a bond given to obtain a certiorari, nor permit evidence offered to establish the authority of one who purports to have executed such bond in behalf of another, except in' rebuttal of testimony attacking the authority of such an agent and the validity of the bond.
    2. When a certiorari bond appears upon its face to have been signed by one apparently authorized to act as an agent, authority to sign it is to be presumed. This presumption may be rebutted by proof, but it is only after evidence adverse to this presumption has been introduced, that evidence in support of the authenticity of the bond or of the signer will be permitted. One who signs a bond, otherwise valid for the purpose of its execution, will not be presumed to have violated the law by committing forgery.
    3. The requirements as to those who may sign a certiorari bond in behalf of a corporation are not so strict as the provisions of § 4460 of the Civil Code with reference to the execution of appeal bonds. In case of corporations, an appeal must’ be entered by the president, or the agent managing the case, or by the attorney of record. The bond prerequisite to obtain a writ of certiorari may be executed by any authorized agent or any attorney of the corporation. Civil Code, § 4639.
    4. The signature of the person purporting to be the agent of the corporation, executing a certiorari bond in its behalf, being admitted and being under seal, the seal, though an ordinary scroll, will • be presumed to be intended as the seal of the corporation, until the presumption is rebutted by competent evidence. The seal imports proper authority.
    5. If a corporation adopts a seal different from its corporate seal, for a special occasion, the seal adopted is the corporate seal for that time and occasion.
    6. (a) Either a general agent or a special agent can execute a certiorari bond.
    (&) The word “supervisor,” when used to indicate an agent of an insurance company, denotes and includes general agency.
    Certiorari, from Fulton superior court — Judge Ellis. October 4, 1907.
    Argued January 20,
    Decided March 16, 1908.

      Hugh M. Scott, for plaintiff. Lowndes Calhoun, for defendant.
   Russell, J.

The plaintiff in error filed a petition for certiorari in the superior court of Fulton county. When the case was called for trial, counsel for the defendant in certiorari moved the court -to dismiss the same, upon the ground that the certiorari bond was signed, “New York Life Insurance Company, by E. J. Clark, supervisor,” and it did not affirmatively appear from the record in the ease that said Clark had authority to sign the name of the company to the bond. The judge of the superior court sustained this motion and dismissed the certiorari, and exception is taken thereto.

The certiorari bond is as follows:

“Georgia, Fulton County. Know all men by these presents, that, whereas the New York Life Insurance Company, a corporation, is plaintiff in a suit on promissory notes, wherein Wallace Rhodes is defendant, in the Notary Public et ex-officio justice of the peace court of the 1234th district, G. M., said county, in which said cause, on the 30th day of May, 1907, a verdict was rendered for the said defendant, Wallace Rhodes; now, therefore, the undersigned principal, the New York Life Insurance Company, and the undersigned security, W. E. Manning, acknowledge themselves jointly and severally bound to the adverse party in said cause, viz. the said Wallace Rhodes, for the payment of the eventual condemnation money, together with all future costs. Witness our hands and seals this day of June, 1907. New York Life Ins. Co. (L. S.), by E. J. Clark, Supervisor. W. E. Manning (L. S.)."

“Approved: Chas. S. Kingsbery, N. P. & ex. off. J. P. 1234th Dist. G. M.”

The plaintiff in certiorari offered to show that Clark, the supervisor, was a general agent of the New York Life Insurance Company in the State of Georgia, and, by virtue of his office, the head representative and general manager of all the affairs of said New York Life Insurance Company in the State of Georgia, and, by virtue of his position, had charge of this particular case, with authority to- execute the bond, and that the bond was a legal, valid, and subsisting obligation of the New York Life Insurance Company. The plaintiff in certiorari further offered to show acceptance and ratification of the bond as a valid and subsisting obligation of the company, by Hugh M. Scott, its attorney of record, and to prove the acceptance and' ratification of the bond before having the same approved or filed.

We think the court properly refused to allow the'plaintiff in certiorari to introduce evidence to prove that the bond was executed with authority by said supervisor, and properly refused the evidence offered to show ratification. The certiorari is a nullity, unless a legal bond, or a pauper affidavit in lieu thereof, has been filed before issuance of the writ. Simpkins v. Johnson, 3 Ga. App. 437 (60 S. E. 202). If the bond appear to be valid and properly executed, the court will not hear evidence to sustain it, though evidence ma)'- be introduced to attack it as having been executed or signed by one without authority. Alabama Midland Ry. Co. v. Stevens, 116 Ga. 790 (43 S. E. 46); Hamilton v. Insurance Company, 107 Ga. 728 (33 S. E. 705). In the Stevens case, supra, an examination of the original record shows that the superior court heard evidence as to the lack of authority on the part of the clerk to sign the certiorari bond for the railroad company, and that the Supreme Court reversed the judgment of the lower court in refusing to dismiss the certiorari because the proof showed that the agent who had signed the certiorari bond was without authority. It is clear, therefore, that where a certiorari bond appears to be valid, evidence will not be heard in support of its validity, or in support of what purports to be the' act of a duly authorized agent in signing the bond, but, upon proper motion, evidence will be heard attacking the validity of the bond, on the ground that it is not executed or signed by the proper person.

When a certiorari bond appears to have been signed by one who is apparently authorized to act as an agent, authority to sign such bond is to be presumed. This presumption may be rebutted by proof, but it is only after evidence has been introduced, adverse to this presumption, that evidence in' support of .the authenticity of the bond or of the authority of the signer will be permitted. One who signs a bond, otherwise valid for the purpose of its execution, will not be presumed to have violated the law by committing forgery.

We think, however, that the court erred in dismissing the certiorari upon the ground (as appears from the order of dismissal) that no valid bond had been filed by the plaintiff in certiorari. The bond was under seal and signed “New York Life Insurance Company (L. S.), by E. J. Clark, supervisor.” The judge of the superior court seems to have dismissed the certiorari upon the idea that the word “supervisor”- does not denote such an agency as would authorize such a supervisor to execute a certiorari bond. Counsel for defendant in error, to sustain the judgment of the lower court, relies largely upon the decision in King Hardware Co. v. Bowden, 113 Ga. 924 (39 S. E. 404). It must be borne in mind that the decision in the Bowden case, supra, was based largely upon the peculiar wording of §4460 of the Civil Code, and the fact that an appeal bond is amendable. It has frequently been held that a certiorari bond is not amendable; and it must be borne in mind that the requirements as to a certiorari bond are not the same as those with reference to an appeal bond. Section 4460 of'the Civil Code provides, that in the case of partners or joint contractors, any one of the partners or joint contractors may enter an appeal in the name of the firm or joint contractors to the appeal bond; and in case of corporations, the appeal may be entered by the president or any agent thereof managing the ease, or by the attorney of record. It is upon the peculiar requirements of this section as to corporations that the decision in the King Hardware Co. case is based.

The name of the plaintiff in certiorari in the present case imports a corporation; and if an appeal bond, instead of a certiorari bond, were to be executed by it, the appeal would have to be entered either by the president, by the agent thereof managing the particular case, or by the attorney of record in the special case. Under §4639, which refers to the bond and security where writs of certiorari are applied for, either “the party applying for the same, his agent or attorney, shall give bond,” etc. The legislature, seemingly bearing in mind the fact that a certiorari bond is not amendable, has, in such cases, relaxed to some degree the stringent requirements prescribed with relation to the persons who can execute an appeal bond; and instead of being restricted, in case of a corporation, to execution by the president, or the agent having the case in charge, or the attorney of record, as in case of appeal, a certiorari bond may be signed by any authorized agent or any attorney of such corporation. As to an attorney, see James v. Avery, 3 Ga. App. 357 (59 S. E. 1118).

We think the bond in this case was presumptively properly executed, because it was under seal. Angelí & Ames on Corporations, §226. “The signature of the agent of the corporation, executing the instrument in its behalf, however, being proved, the seal, though mere paper and wafer, stamped with the common desk seal of a merchant, will be presumed to be intended as the seal of the corporation, until the presumption is rebutted by competent evidence.” Flint v. Clinton Co., 12 N. H. 433-434; City Council v. Moorhead, 2 Rich. 450; Susquehannah Bridge Co. v. Ins. Co., 3 Md. Ch. Dec. 305 (56 Am. D. 740); Phillips v. Coffee, 17 Ill. 154 (63 Am. D. 357). The court, therefore, should have considered the bond as sufficient, until it had been made affirmatively to appear by the defendant in certiorari that Clark did not have the authority he claimed to have and which his title .imported.

Where an agent has signed with a seal, the courts are to presume that he did not exceed his authority. The seal itself, prima facie, imports proper authority. Counsel for the defendant in error, however, insists that the bond was not executed 'under the common seal of the corporation, but only under the letters “L. S.,” being a general seal or scroll. This does not alter the case. A corporation as well as an individual person may use and adopt any seal. A scroll is sufficient, in place of a common seal, to constitute a sealed instrument. Johnston v. Crawley, 25 Ga. 316 (71 Am. D. 173). It is also held in the Johnston case (25 Ga. 329), that if a corporation adopts a seal different from its corporate seal, for a special occasion, the seal adopted is the corporate seal for that time and occasion. The purpose in executing the bond is to make it a sealed instrument. And that a scroll is sufficient for that purpose was held also in Williams v. Greer, 12 Ga. 459, and in Stansell v. Corley, 81 Ga. 453 (8 S. E. 868). See also Carr v. Ga. Loan & Trust Co., 108 Ga. 757 (33 S. E. 190); Nelson v. Spence, 129 Ga. 35 (58 S. E. 697); Dodge v. American Freehold Co., 109 Ga. 394 (34 S. E. 672). In these cases the common seal was used; but we see from the ruling in the Johnston case, supra, that this is not essential.

Under the provisions of §4639, either a general agent or a special agent can execute a certiorari bond in behalf of his principal, and the one is as sufficient for the purpose ás the other. In our opinion the word “supervisor” imports general agent, and the authority to bind the company; but if'we should be mistaken in this, the word necessarily implies agency of some kind; and as the instrument is under seal, special agency for the particular purpose, at least, is to be presumed. “A special agency properly exists when there is a delegation of authority to do a single act. A general agency properly exists when there is a delegation to do all acts connected with a particular trade, business, or employment.” Story on Agency, §317. “Supervisor,” as defined in Webster’s International Dictionary, is “one who supervises; an overseer; an inspector; a superintendent.” In the same dictionary the verb “superintend” is given as a synonym of the word “supervise,” and “supervise” is defined as, “to oversee for direction; to superintend; to inspect with authority.” We confess that at first blush the word “supervise” did not appear to us as being a term at all applicable to the affairs of the insurance company, or suitable to designate a general manager; but in the Century Dictionary we find the following definition: “Supervisor. One who supervises; an overseer; an inspector; superintendent: as, the supervisor of a coal-mine; a supervisor of the customs or of the excise.”In the same dictionary the verb “supervise,” is defined, “to oversee; have charge of, with authority to direct or regulate.”

From the above we think it clear that four propositions are established: First: That either a general agent or a special agent can execute a certiorari bond. Second: That the word “supervisor” embraces general agency. Third: That where the bond appears under seal, authority to execute it will be presumed. Fourth: That the execution of such a bond under any ordinary seal or scroll is sufficient for that purpose. Judgment reversed.


text:
    856.
    SUTTON v. MAYOR & COUNCIL OF WASHINGTON.
    1. That a municipal court has previously tried a case, which, upon the sustaining of a certiorari, has been returned for another trial, is no ground of disqualification on the part of the members of that court from again trying the case.
    2. A plea of former jeopardy, filed in a municipal court, upon the ground that the accused has been previously acquitted or convicted upon a charge of violating the penal laws of the State, may properly be stricken, although the identical transaction is involved in both eases. The act may or may not be a violation of a State law, but may be an infraction of that duty of preserving the public peace and good order enjoined by a municipal ordinance.
    3. The validity of a municipal ordinance can not be questioned in a higher court unless the ordinance be first attacked in the lower court.
    Certiorari, from Wilkes superior court — -Judge Worley. November 7, 1907.
    Submitted January 13,
    Decided March 16, 1908.

      F. II. Colley, I. T. Irvin Jr., for plaintiff in error.

      William Wynne, J. M. Pítner, B. C. Norman, contra.
   Russell, J.

Joe Sutton was convicted by the Mayor and Council of Washington, of keeping intoxicating liquors for sale in said city. In his bill of exceptions the judgment of the judge of the superior court, in overruling and dismissing his petition for certiorari, is assigned to be erroneous, upon three grounds: (1) Because the mayor and council were disqualified from hearing and deciding petitioner’s case. • (2) Because his plea of autrefois acquit was erroneously stricken. (3) Because the judgment of guilty, rendered by the mayor and council against him, was unsupported by the facts and the law, and because the ordinance upon which he was convicted was invalid.

The fact that the mayor pro tern and the city council of Washington had previously passed upon the case did not disqualify them from again trying it, after the certiorari was sustained and it had been returned for a second trial. A trial before the mayor and council of a municipality is not analogous to a jury trial. Although the defendant can not claim a jury trial in a municipal court, such a trial is more similar to a trial upon both law and facts before the judge, where a jury is not demanded. It was held in Holliman v. Hawkinsville, 109 Ga. 107 (34 S. E. 214), that the mayor is disqualified, under the provisions of §4045 of the Civil Code, from taking any part in the trial of an appeal to the city council of a case in which he presided as mayor. The reason for this is apparent. His judgment is the subject-matter of review, and the case comes within the express provisions of §4045. But should a case, upon petition for certiorari, be returned to any inferior judicatory, the mere fact that the lower court has heretofore passed upon the case is no ground of disqualification. The proceeding is one de novo. No matter what may have been the prior decision of the lower court, a new trial which has been ordered in the judgment on the certiorari is not to be considered as a review of the former trial. To hold otherwise would be to disqualify any judge who has once heard a case and presided therein. And in a case like the present, if the city council, having once heard the case, should be disqualified from again hearing it, it might be impossible (for a long period at least) to again bring the defendant to trial.

These are the views of the majority of the court upon this point; and they seem to be supported by authority. Personally, the writer confesses that he is rather convinced against his will, and yields his individual opinion with some misgivings, only because in the case now under consideration no other conclusion could have been reached, under the evidence submitted, than that the defendant is guilty, as charged. To my mind a trial before a city council partakes in some respects of the nature of a trial before a jury; and unquestionably a jury which has once passed upon the facts of a case is disqualified from again considering the same case. It has been held that equity has jurisdiction in a civil ease where the mayor and council are disqualified; and this seems to me to be a recognition of the principle that they would likewise be disqualified in a criminal case. There being, however, no substitute provided by law for the council, even if disqualified, in a criminal case, the evil of sustaining a conviction clearly demanded by the evidence seems to me to be less than that of discharging a violator of the law who has clearly been shown to be guilty.

There was no error in striking the plea of autrefois acquit filed by the defendant. The fact that he had been previously acquitted in the city court of Washington of the offense of selling intoxicating liquor, although the charge in that case was for selling it to Fanning, who testified before the mayor and council to the same sales embraced in the charge in the city court, and that were there testified to by him, was not sufficient to support a plea of autrefois acquit. The same act may constitute an offense both against the Penal Code of the State and against an ordinance of a municipal corporation, and both may punish for it without ^violating any constitutional principle. In such a ease, “punishment for the same act is not necessarily punishment for the same offense/’ because, “when committed in a city, and when of that class of acts which tend to disturb the local health, peace and good order, and which therefore fall properly within the scope of municipal jurisdiction,- an act punishable by the general law may, because of its more serious consequences in a city than elsewhere, constitute an additional offense, punishable by a municipal by-law and as an offense against the city.” Hood v. Von Glahn, 88 Ga. 405 (14 S. E. 564). See also Fountain v. Fitzgerald, 2 Ga. App. 713 (58 S. E. 1129). This principle is recognized in all of the ordinances with, reference to keeping liquor for sale in towns and cities, in counties where by law the sale of liquor is prohibited. The place where the liquor is kept for sale is a distinct element entering into the offense, and making -it a different offense from the sale of liquor itself. It might well be conceded to be far less detrimental to the public peace and good order to keep liquor for sale in a remote and sparsely settled section of a county than in a portion of a town or city where the idle are wont to assemble in numbers and are more likely to create disturbance.

If the defendant had been convicted in the city court of Washington, instead of having been acquitted, this very difference to which we have alluded would have rendered a plea of autrefois convict valueless as a defense; and the value of a plea of autrefois acquit can very well be tested by estimating the legal effect of a plea of autrefois convict upon an opposite finding from that rendered. The “same-transaction test” is applicable only in courts of the same jurisdiction; and while it is possible for the legislature, by express grant, to confer upon municipal courts the right to punish for violation of the penal laws of the State, ordinarily they are not clothed with such power. For this reason the same-transaction test can not be applied to a; judgment based upon a municipal ordinance, and a judgment of guilty in the city court; and a plea in bar in either court, based upon the fact that the transaction for which the defendant has already been tried in one court or the other is identical in fact with that upon which he is again about to be tried, affords no ground of defense. A conviction in a mayor’s court, under a municipal ordinance for disturbing the peace, will not protect the accused from a subsequent prosecution in the State court for assault and battery, even though the identical transaction be involved in both cases. Nor will an acquittal in a State court on a charge of assault and battery protect the accused from a subsequent prosecution for disorderly conduct, under a nrunieipal ordinance. DeGraffenreid v. State, 72 Ga. 212; McRea v. Mayor, 59 Ga. 169 (27 Am. R. 390). It has also been held that a conviction in the mayor’s court, under an ordinance forbidding the retailers of spirituous liquors to allow persons to assemble at their places of business on Sunday, is not a bar to a subsequent prosecution for keeping open a tippling-house on the Sabbath. Purdy v. State, 68 Ga. 295. As said by Judge Bleckley in McRea v. Mayor, supra, “In the trial hacl before the State tribunal, . . the prisoner’s conduct was compared with the general penal code of the State, and was found not to be violative of that code. In the trial before the mayor, the same conduct was compared with the city ordinances of Americus. . . Disorderly conduct in fighting may include an assault and battery by the particular party to the fight who happens to be on trial, or it may not. In this instance, it did not. That much was ascertained by the acquittal. But the city was concerned with the alleged criminal prosecution, not as an assault and battery, but as disorderly conduct within the limits of a municipal corporation, where the preservation of good order is matter of local police. . . Municipal government stands between the family and the State. Police ordinances are at once family rules on a large scale and State laws on a small scale. . . The State may deal' only with the central element of a transaction which is fringed all round with adjuncts that ought to be prohibited by ordinances as highly mischievous to the quiet of municipal society.”

It is strongly urged that the defendant was acquitted in the city court although Howard Fanning there testified to the same facts to which he testified before the mayor and council. We need not attempt to explain why the witness was disbelieved in one forum and believed in another; for though we are unable to explain the phenomenon, the finding qf the jury and of the council, though their findings are different, each is conclusive, so far as the facts are concerned. As far as our jurisdiction extends in this case is to hold that there was no error in striking the defendant’s plea in the trial now under consideration. Selling liquor contrary to the law of the State is one offense, and is punishable by the State. Keeping liquor for illegal sale is another and a different offense, and is punishable, if at all, by municipal ordinances. The two offenses are absolutely separate and distinct. Paulk v. Sycamore, 104 Ga. 728 (30 S. E. 417, 41 L. R. A. 772, 69 Am. St. R. 128); Hood v. Griffin, 113 Ga. 190 (38 S. E. 409).

The third exception complains that the finding of guilty was not supported by the evidence and law, because the ordinance upon which the petitioner in certiorari was convicted is invalid. A contention is made in the briefs as to when the defendant’s plea was stricken. We think it immaterial at what stage of the trial the council struck this plea. It was properly stricken. But the striking of the plea of former jeopardy could not have prevented the introduction of any evidence which the defendant desired to present in support of his plea of not guilty. At least there is no complaint that the plaintiff in error offered any evidence which was rejected. It appears that before the council, the (plaintiff in error was content to rely upon the plea of former jeopardy alone, and to waive the right to disprove, if he could, the testimony of Fanning, which showed his guilt of the charge. The evidence, as it appears in the record, fully authorized the finding of the council. Nor is there any merit in the complaint that the ordinance under which the plaintiff in error was found guilty is invalid. Two ordinances upon this subject appear in the record; and other than the general assignment that the ordinance is invalid, it is not alleged upon what ground or in what respect such invalidity consists. We would be left to grope in the dark if we could consider this assignment; because no specific defect is pointed out. It is stated in the answer, however, that no point was made on the ordinances in the trial court; and of course they can not now be challenged here. The conviction will be presumed to be in accordance with the ordinance, and the ordinance will be presumed to be valid.

Judgment affirmed.


text:
    877.
    Wilcox v. Sargeant.
   Russell, J.

1. The fact that the evidence would have authorized a larger recovery in behalf of the prevailing party in a case than the amount of the verdict affords no ground of complaint to his adversary. Gilmore v. Taylor, 3 Ga. App. 93 (59 S. E. 325); Ellis v. U. S. Fert. Co., 64 Ga. 571.

2. The rule that parol evidence is inadmissible to vary the terms of a written contract is not violated by the admission of parol testimony to the effect that a certain payment was made upon a different purchase than that mentioned in the bond for title.

3. There was no error in refusing a new trial, where the controlling issue of fact (as to whether a payment, alleged to have been made by the plaintiff, was a penalty or a forfeiture, or a partial payment on a purchase) was fairly submitted to the jury, and where evidence was submitted showing that it was a payment on a contract of sale which the defendant had failed to carry out, as well as evidence that it was a payment on a different transaction, in which the defendant had complied with all of his obligations. - Judgment affirmed.

Appeal, from Wilcox superior court — Judge Whipple. November 9, 1907.

Submitted September 4, 1907,

Decided March 16, 1908.

Hal Lawson, for plaintiff in error.

Max M. Land, Walter F. Hall, contra.


text:
    886.
    Wilkes v. Pope.
    Complaint, from city court of Dublin — Judge Burch. October 21, 1907.
    Submitted February 5,
    Decided March 16, 1908.
    C. S. Pope sued W. W. Wilkes on a promissory note for $95.33 principal, appearing to have been executed by the defendant as sole maker, and payable to Emma Wilkes or bearer, which the plaintiff alleged had been transferred to him for value before maturity and without notice of any defense. The defendant filed a plea of non est factum. At the trial he admitted that he had signed the note; -and he offered to testify that, having agreed with Charles Wilkes, the husband of Mrs. Emma Wilkes, to become accommodation security for her at the First National Bank of Dublin for $70, he signed it with the understanding that she was to sign it as principal, above his signature, and that it was to be filled in for the amount of $70 and he made payable to the bank, blank spaces being left for that purpose; that “C. S. Pope, the transferee of the note, was not present when it was made,” and, so far as the witness knew, did not have notice of these facts. The court excluded this testimony, on the grounds, that it did not appear that the plaintiff had notice of the facts stated, and that under the Civil Code, §3940, which provides that “when one of two innocent persons must suffer by the act of a third person, he who puts it in the power of the third person to inflict the injury must bear the loss,” the defendant should not be heard to complain. There was no further testimony. The court directed a verdict in favor of the plaintiff; to which, as well as to the exclusion of the testimony offered, the defendant excepted.
   Hill, C. J.

1. The transferee of a negotiable paper who receives it before it is due can not be affected by any agreement or understanding between other parties to the paper, unless notice of such agreement or understanding is brought home to the transferee. Wooten v. Inman, 33 Ga. 41.

2. If A signs his name to a blank note and delivers it to B, designating the payee to be filled in the note by B, A constitutes B his agent for that purpose, and A will be bound to a bona fide holder of the note who became such before maturity, although B violated the private understanding between A and himself with reference to the note. Moody v. Threlkeld, 13 Ga. 55.

3. The testimony of one whose name appears as the maker of a negotiable note, that he signed it as surety, with the understanding that another • should sign as maker before the delivery of the note to the payee, the latter having no notice of such understanding, does not support a plea of non est factum, or constitute a defense as against a bona fide transferee for value before maturity. Cleghorn v. Robison, 8 Ga. 559; Benson v. Abbott, 95 Ga. 75 (22 S. E. 127). Judgment affirmed.

Bari damp, George B. Davis, for plaintiff in error.

Peyton L. Wade, contra.


author: Powell, J.

text:
    906.
    CITIZENS BANK OF FITZGERALD v. RUDISILL.
    1. Even the first grant of a new trial will be reversed, if the pleadings and the proof affirmatively disclose that the verdict rendered represents the only result legally possible in the ease.
    2. An action for money had and received lies, in case the defendant has taken to his use money which ex aequo et bono belongs to the plaintiff. It needs for its support no actual contractual relation, for the law will imply a quasi-contraetual relation to uphold it, whenever the circumstances so require.
    3. Where the action proceeds upon the theory that the plaintiff has paid the defendant money under a mistake of fact, it must appear that such a mistake did really exist, that the plaintiff, at the time of the payment did not know, or at least that he did not recollect that he did not owe the money; otherwise the payment will be held to be not recoverable.
    4. In such cases the plaintiff must show that he was laboring under a mistake as to the facts, and not merely that he was ignorant of the means of proving the facts which would show his non-liability.
    5. Although the plaintiff has paid the defendant money under a mutual mistake, yet if, acting on the payment, the defendant has so changed his situation that the mistake can not be rectified without entailing on him a loss of the sum paid, the action will not lie.
    6. In the present case the petition and the proof show that the payment by the plaintiff to the defendant was voluntary, and not .by mistake; and the proof further discloses that, acting upon faith of the payment, the defendant had yielded to a third person property equal in value to the sum claimed; therefore a verdict for the defendant was demanded, and the court erred in granting the plaintiff a new trial.

      Certiorari, from. Ben Hill superior court — Judge Whipple. November 22, 1907.

    Submitted February 17,
    Decided March 16, 1908.

      O. II. Ellcins, for plaintiff in error.

      C. W. Fulwood, E. W. Ryman, contra.
   Powell, J.

A presentation of the case, which omits a number of details of facts but which outlines them fully enough to illustrate fairly the position of both parties, may be stated as follows: At the organization of the Citizens Bank of Fitzgerald, Eudisill, the plaintiff, a young man of good standing in the community but of no experience in the keeping of bank books, was elected cashier, and, as is customary in small banks, the duty of keeping the books devolved upon him. A great many irregularities in the manner of keeping the books, papers, accounts, etc., of the bank thus arose. The present suit had its origin in a transaction had with one Handley, who subscribed for certain shares of capital stock. According to Eudisill’s contention, Handley had given his note for $300 for three of the sháres of stock for which he had subscribed. On November 2, 1905, Handley took up this note by paying $100 cash and transferring to the bank a note of Hammock Lumber Company for $200. Of course upon the cash book this transaction should have been entered as follows: On the debit side cash should have been charged with $300; and on the other side should have been credited with the discount of the Hammock Lumber Company note, $200, leaving $100 difference to be accounted for in the item of “cash on hand at the close of this day’s business.” These entries on the cash book, under the double-entry system by which bank books are generally kept, should then each have found its corresponding entry on the general ledger. Instead of doing this the cashier made, on the credit side of the cash book, two entries: “loans and discounts, E. Y. Handley $300;” “Hammock Lumber Co. $200;” carrying forward the total credit of $500; and to offset this he debited the cash account with the following entry: “Capital stock, E. Y. Handley, $500.” The record does not disclose what corresponding entries were made upon the general ledger, nor exactly how this factitious balance led to the result which finally came about, namely, that a little later Eudisill was charged with being $200 short. It is disclose^, however, that it resulted in a certificate for 15 shares of the capital stock of the bank being issued in Handley’s favor, as representing the sum total of all Ms payments on capital stock, when, as claimed by Eudisill, he had paid for only 13 shares. Handley insisted then, and testified on the trial, that he had paid for all 15 of these shares; though he was unable to give the details of the pa3mient, with anything like satisfactory accurac3c However, under those admissions which, for the sake of argument, it is necessary that the plaintiff in error should make in order that he may bring under review the first grant of a new trial, the case here must be considered in the light most favorable to Eudisill; and, for this purpose, we take it that the transaction occurred just as Eudisill contends. Being confronted with this apparent shortage, Eudisill denied liability, and stated to the directors of the bank that the apparent shortage came about by reason of the fact that from some cause Handley was credited with $200 more capital stock than he ought to have been credited with. He was unable to show definitely where his error lay, and the directors informed him that he must either pay the $200 or that the matter would be referred to the bonding company, which had stood surety for the faithful performance of his duties as cashier. In the meantime the issuance of the stock to Handley had been held up; hut upon the threats of the directors to report the matter to the bonding company, Eudisill, protesting that 'he did not owe the $200, and, as he himself admits, with full knowledge that he did not owe it, paid it; and the bank thereupon issued to Handley the certificate for 15 shares of stock. Afterwards the bank’s books were checked up by an expert accountant, and upon his report showing, as Eudisill claimed, that the shortage originally alleged did not exist, he sued for the recovery back-of the $200. The trial court directed a verdict for the defendant, and the case was taken by certiorari to the superior court, where the judgment of the lower court was reversed and a new trial ordered. To this ruling in the superior court, the bank brings error, asserting, that under the pleadings and the evidence the verdict was demanded; that the petition itself did not set out a cause-of action; that the proof did not support the petition or show any other cause of action. The petition distinctly asserted that-the plaintiff knew, at the time he made the payment, that it was an error, and that he was not indebted to the bank in any amount-

To uphold the first grant of a new trial, whether by the trial judge on motion for that purpose, or by the judge of the superior court on certiorari, every presumption will be indulged, in the light of that broad discretion which exists in such cases. Where there is any conflict in the evidence, the first grant of a new trial will not be disturbed, though the apparent preponderance lies with the plaintiff. There are cases where it will not be disturbed though the evidence demands the verdict rendered; for instance, where there have been erroneous rulings upon the pleadings or the evidence which might have prevented the losing party from getting his full case before the jury. Even though the petition should not set out a cause of action, and though there has been a verdict for the defendant, the first grant of a new trial will not necessarily be reversed; for it may be upheld on the theory that the judge took into consideration that the petition, upon another trial, might be amended. But where the petition and the plaintiff’s proof both clearly and unmistakably show that his full case has been presented, and that beyond doubt he has no right to recover, and there has been a verdict for the defendant, the trial judge, as a matter of law, errs in granting a new trial. We are constrained to hold that such is the case in the present instance.

The plaintiff’s suit is in essence an action for money had and received; an action, be it said, which, when properly supported, is in no disfavor with courts either of law or of equity. At common law it was given great scope of usefulness, and especially was much encouraged by Lord Mansfield, who recognized the equitable nature of the remedy, and extended it to all cases where a refusal of the remedy would result in an unjust enrichment of the defendant. In Moses v. Macferlan, 2 Burrows, 1008, he says: “If the defendant be under an obligation, from the ties of natural justice, to refund, the law implies a debt, and gives the action, founded in the equity of the plaintiff’s case, as it were upon a contract quasi ex contractu’) as the Boman law expresses it. . . This kind of equitable action to recover back money, which ought not in justice to be kept, is very beneficial, and therefore much encouraged. It lies only for money which, ex aequo et bono, the defendant ought to refund. . . In.one word, the gist of this kind of action is, that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money.” And in such an action “it is immaterial how the money may have come into the defendant’s Hands, and the fact that it was received from a third person will not affect his liability, if, in equity and good conscience, he is not entitled to hold it against the true owner.” 27 Cyc. 864 (K). Indebitatus assumpsit will therefore lie to recover the overplus of a double payment (27 Cyc. 862 (F)), or money which has been paid under a mutual mistake of fact. 27 Cyc. 873 (iv); Keener on Quasi Contracts, 26.

To authorize a recovery, however, on the theory that the plaintiff has paid the defendant money under a mutual mistake of fact, it must appear that there was an actual mistake as to the facts; 'for the law will not allow a man who has paid money, knowing that the payee is not entitled to receive it, to recover it. “Since the payment was unnecessary, plaintiff must be regarded as having intended to make a gift of that sum of money to the defendant,— in which event there is no reason why he should be allowed 'to recover it, — -or else as attempting to shift his position from that of a defendant to that of a plaintiff, — a course which would in most cases be unfair to the claimant, and which is not allowed in any case where the law deems the payment a voluntary one.” Keener on Quasi Contracts, 21. The word “knowledge,” when applied in this connection, is not, however, used in the broad sense in which it is sometimes used. A man may have a fact in memory, but at a given moment his faculty of recollection may not present it to him. For example, you pay a debt, and, being a conscious agent, you of course possess the cognition of the fact; your memory stores it away; later your creditor presents his demand again. Though, in the broad sense, knowing that you have paid it, and though, still holding that fact dormant in your memory, yet not recalling it, — that is, forgetting it, — you pay it again. In such eases, for the purposes of the principles we are discussing, you are not considered as having knowledge of the fact.

Another limitation on the right to recover money in such cases is that the plaintiff must have been mistaken as to the facts, and not merely ignorant of the means of proving the facts which would show his non-liability. “Ignorance of a fact is one thing, ignorance of the means of proving a fact is another. When money voluntarily paid is recovered back, it is because there was some mistake as to the fact. But here the plaintiff was not mistaken as to the fact. Only at the time he did not know how to prove it. The subsequent discovery of evidence to prove a fact known to the party when he made the payment can not authorize a recovery back of the money. Such a principle would be most dangerous.”' Windbiel v. Carroll, 16 Hun (N. Y.), 101, 103.

So also, in no event can the plaintiff recover if the defendant has so changed his position that he can not be put in statu quo. “To say that a plaintiff can recover money paid by mistake, notwithstanding the recovery will throw a loss upon the defendant, provided the plaintiff is under no obligation to the defendant, is to lose sight of the grounds upon which a recovery is allowed,— namely, that the defendant has money which in conscience he can not keep. . . The principle that forbids the defendant enriching himself at the expense of the plaintiff should clearly forbid the plaintiff indemnifying himself against loss at the expense of an innocent and blameless defendant.” Keener on Quasi Contracts, 67, 73. Therefore, where by mistake money has been paid to an agent, and the agent has in good faith turned -it over to his principal, the third party can not proceed against the agent; and vice versa, where a principar has received money from his agent under a mistake of fact, and the principal has in good faith paid it over to the third party as a result of the mistake of the agent, and before the discovery thereof, the agent can not recover it from his principal. See Keener on Quasi Contracts, 63.

Specifically applying these principles, it is to be seen that Eudisill paid this money to the bank, not in ignorance or forgetfulness of the fact that he did not owe it, but merely because he did not have at that time at his command the means of proving that he did not owe the money, and because he voluntarily chose to pay money which he knew and recollected he did not owe, rather than have the transaction presented to his sureties. He yielded and waived further contention as to his liability for the money, and paid it over; the bank in turn gave due effect to the payment as a basis for settling the dispute existing between it and Handley, the stockholder. It may be justly said, under these circumstances, that the bank did not take or receive money to its benefit, so much as to the benefit of Handley. It does not now retain the money without having given a quid pro quo; for, upon the faith of this money, it has surrendered to Handley $200 worth of its capital stock. The controversy is therefore shifted, and if Rudisill has a cause of action against any one it is against Handley; for he, if any one, has ultimately received that which ex aequo et bono belongs to the plaintiff. See 27 Cyc. 864 (K); Moses v. Macferlan, supra; Bates-Farley Savings Bank v. Dismukes, 107 Ga. 212 (33 S. E. 175). The plaintiff’s pleading and his proof both affirmatively disclose that he has no cause of action against the present defendant ; the verdict rendered represents the only result legally possible in the ease; and the judgment setting it aside and granting a new trial will therefore be reversed. Judgment reversed.


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    910.
    HURT v. KIBBY.
    The evidence authorized the verdict, and the judge of the superior court did not err in dismissing the certiorari.
    Certiorari, from Ben Hill superior court — Judge Whipple. November 22, 1907.

      E. Wall, J. J. Bull, for plaintiff in error.

      Charles B. Teal, contra.
   Russell, J.

Kibby sued out a distress warrant for $20, for the rent of two ten-acre tracts of the Fitzgerald Colony lands for the year 1905. The defendant, Hurt, made a counter-affidavit setting up that the rent was not due, by reason of the breach of certain conditions of the contract, and asked a judgment by way of recoupment against the plaintiff. There was conflict in the evidence as to whether the plaintiff had repaired the fences, as he had verbally agreed to do, and as to whether the landlord had broken his contract by taking possession of the-premises before the expiration of the term of rental, or whether the landlord only took possession of a small out-house or tenant’s house, with the consent of the defendant. Kibby testified, that he agreed to repair the fence and did repair it, and that the reason why he inserted the words “which is done,” after the reference to the repairs in the written contract, was because he had been informed that Hurt was litigious and would give trouble. Hurt swore that he objected to the words “which is done,” and that Kibby pretended to erase them, and he thought they were erased at the time he signed the contract. As all of the damages which the defendant pleaded as recoupment were said to have been due to Kibby’s failure to repair or assist in repairing the fence, except $5 for the proportionate part of the year’s rent after Hurt claimed that his landlord had retaken the premises, it is evident that if the jury believed Kibby’s testimony with regard to the fence, corroborated by the written contract signed by Hurt, in which it was admitted that the fencing had been done, there could be no recovery for the damage to the crops which was alleged to be due to lack of sufficient fences. There was like conflict as to the $5 claimed as damages due to Kibby’s taking possession, of the house and premises on September 29, 1905. Kibby testified, that he never heard of any trouble about the negro house until the trial of the case; that when he rented the places to Hurt he told him there was a negro hut on one of the places, and Hurt said he had no use for it and would be glad if he (Kibby) would rent it out to some one else, to pick cotton in the fall; that at Hurt’s request it was agreed that Kibby should keep the house and get some one in it if he could. Kibby further testified that he told Hurt that he had found some one to get in the house, and Hurt said it was all right, and informed him where the keys were, and asked him what to do with some things he had put in the house. On the trial Hurt denied all of these facfs, or that he ever had at any time consented for Kibby to take possession of the house; and also denied the testimony of Mrs. Kibbjr, who testified, that she heard Hurt tell Kibby to go and take possession of the house, and that he was glad to get rid of it. It is clear that if the jury saw fit to prefer the testimony in behalf of the plaintiff in the distress warrant, they would have found against the defendant’s plea of recoupment.

It is of course undeniable that during the continuance of a lease or contract of rental, the sole right to the possession and enjoyment of the premises is vested in the tenant; but the tenant has the right, with the consent of the landlord, to give possession to whomsoever he will of a portion of the rented premises, or the whole of it, as he may elect, and in this case the jury were authorized to find that Hurt, for the reasons stated by witnesses, turned the possession of the negro house over to his landlord. He could have put Kibby, although he was landlord, in possession, as well as any one else. We see no evidence of either fraud, force, or moral duress which induced the tenant to surrender possession of the house and deliver the keys to the landlord. And while it is true, as held in Ledsinger v. Burke, 113 Ga. 74 (38 S. E. 313), that where the tenant voluntarily vacates the premises and delivers the keys to the landlord at his request, the rent ceases, and while the jury might, upon that principle, have been authorized to reduce the plaintiffs demand pro tanto, still they were not required to do so, if they preferred to believe that the house in question was never included in the contract of rental. This was the testimony of the plaintiff in the justice’s court.

The plaintiff in error further insists, that it was the duty of the landlord to keep the fences in repair, and that when 'he went to Barantine, the agent of defendant in error, and notified him of the condition of the fence and that stock were destroying his crops, this was notice to the landlord, and it was his dirty to make such repairs as would protect the tenant’s crops. Conceding the sound-' ness of the principle relied upon by the plaintiff in error, still the finding of the jury was not unwarranted, because, with the explanation of Kibby as to the words, “which is done” (to which no objection was offered), the jury could well have inferred a waiver on the part of Hurt of any further repairs as to the fence. Nor was-there any evidence that Barantine was the agent of Kibby, except the statement of a conclusion by Hurt, when he said, “I found out that Barantine was his agent.” He does not say how he found it out; and it may be that he formed his conclusion merely from statements of Barantine himself. If so, this would be no proof of agency; and this is the only reference to the subject in the entire record. Furthermore, the jury had the right to consider the fact that, according to Hurt’s own testimony, the fence was to be kept repaired by both parties, and the tenant would have had the right, upon the failure of Kibby to repair the fence,’ or, upon Barantine’s failure to prevent the damage to his crop by the necessary repairs (if Barantine was Kibbj'’s agent), to have the fence repaired and hold the necessary expense as a charge against the landlord.

In our opinion the verdict was fully authorized by the evidence, and the judge of the superior court did not err in dismissing thecertiorari. Judgment affirmed.


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    922.
    National Bank of Brunswick v. Pritchard.
    Certiorari, from Glynn superior court — Judge Parker. December 5, 1907.
    Submitted February 17,
    Decided March 16, 1908.
    Rehearing denied June 17, 1908.

      Bennei & Conyers, for plaintiff in error.

      Francis 17. Harris, contra.
   Russell, J.

1. A garnishment in justice’s court follows the attachment under which it issues, and the garnishee is required to appear and answer at the term to which the attachment is returnable.

2. A motion to dismiss a garnishment does not reach the attachment.

3. If a justice’s court sits within ten days next after issuing an attachment, the attachment shall be made returnable to the next justice’s court thereafter. Civil Code, §4518. Consequently, an attachment having issued on April 19, and the next regular term of the justice’s court com•ing on April 29, the attachment was properly returnable to the May term of that court. Jtidgmeni aflirmed.


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    933.
    PRICE v. THOMPSON et al.

    1. Rent may.be paid in labor in improving the rented premises, as well as in any other specific.
    2. A distress warrant for rent due a landlord may be levied upon any property of the tenant, and the filing of a counter-affidavit by the latter is equivalent to an admission that the property levied upon is his property.
    3. Although a parol contract for the lease of lands may be void under the statute of frauds, still, where one goes into possession thereunder, a tenancy at will is created, and one who has derived all the benefits arising from such a contract will not be heard to avail himself of the defense that the contract was not in writing.
    Certiorari, from Johnson superior court — Judge Rawlings. November 30, 1907.
    Submitted February 18,
    Decided March 16, 1908.

      E. L. Stephens, for plaintiff in error. A. L. Hatcher, contra.
   Russell, J.

Price brought a petition for certiorari, to set aside 'the foreclosure of a distress warrant; and he excepts to the judgment overruling his petition. It appears that a distress warrant was sworn out in a justice’s court; to which the defendant, Price, filed a counter-affidavit. 'Upon the trial of the issue in the justice’s court, it was uncontradicted, in the evidence, that Price rented a plantation in 1901 from' W. A. Sinquefield as agent for Sirs. H. G-. Sinquefield and Dollie Thompson and as guardian for Lofton Thompson. The rent contract was verbal, but Price went into possession and remained in possession the whole six years. Price agreed to pay 8,000 pounds of cotton per year for the rent of a four-horse farm, and in addition, as part of the rent, he was to split and put up 2,000 rails each year. The distress warrant was sworn out on January 14, 1907, and the lease expired January 1, 1907. Price paid the 8,000 pounds- of cotton on the rent for 1900, some time in November of that year, but, upon the expiration of his lease, moved away without having repaired the fences by splitting and putting up the 2,000 rails for 1906, as he had contracted to do; and the distress warrant issued for $30, claimed as rent, which was supposed to be the worth of the splitting and hauling of the rails. There was no evidence that the property levied upon by the distress warrant was made upon the rented, premises, or was there at the time of the levy, and no evidence that it was the property of the defendant-Price. The plaintiff’s testimony was to the effect, however, that the splitting and putting up of the 2,000 rails was a part of the rent contract. Price, in his petition for certiorari, excepted to the judgment against him for $20, for rent, because the verdict was contrary to evidence and without evidence to support it; also because the judgment was contrary to law, because the evidence failed to show* that the property levied upon was raised on the premises rented by plaintiff to defendant, and showed that defendant had paid the 8,000 pounds of cotton before the distress warrant was sued out; also because it was not shown that the property was the property of the defendant when levied upon; and further because the indebtedness, if any, was not for rent; and even if it had been made for rent, the contract having been made in 1901 and being verbal, and the rent claimed being for 1906, the contract was void under the statute of frauds. The question really raised by the various exceptions (all of which we do not mention) is, whether, as a matter of law, under the undisputed testimony, the plaintiff was entitled to a judgment upon the distress warrant.

We think, as the verdict does not exceed the amount proved, as to the value of the rails to be furnished, the judge did net err in overruling the certiorari, The splitting and putting up of the rails could well be considered as much a part of the rent as the cotton; for the party who made the contract testified that but for the provision in regard to the rails, he would have charged more cotton for the rent of the plantation. And Price viewed the contract this way for five years. The plaintiff was not entitled to $30, and the justice’s court properly disregarded the $10 charged for hauling the rails; but he had the right to recover the proved value of the splitting of the 2,000 rails, shown to be $20. There is no question but that the original' contract in regard to the rails can be construed as rent; because rent can be paid in specifics as well as in money. There is nothing in the evidence to convey an intimation that the agreement as to the splitting and hauling of the rails was in the nature of a contract for repairs, independent of the agreement with reference to the rent. On the contrary, Mr. Sinquefield testified that this stipulation was an essential of the contract.

There is nothing in the point that there was no proof that the property levied on was the property of' the defendant in the distress warrant, or that there was no proof that the property levied on was grown on the rented premises. A distress warrant for rent due a landlord may be upon any property of a tenant, and the filing of the counter-affidavit by the latter is, in effect, an admission that the property levied upon is his property.

Under the facts of this case, it is not necessary for us to determine whether or not the contract of rental was void generally because contrary to the statute of frauds. We concede that for the purpose of creating the ordinary relation of landlord and tenant (and especially so far as the rights of third parties might be concerned), this verbal contract for a period of six years was void. But the defendant is estopped from asserting the invalidity of the contract. It does not lie in his mouth, after having received all of the benefits accruing therefrom, to say that the contract is void. He can not refuse to pay the rent because the contract was in parol. Being verbal and for a period of six years, a tenancy at will was created when Price went into possession. Cody v. Quarterman, 12 Ga. 386. As to payment of rent by labor or necessary improvements, see Wilkins v. Taliafero, 52 Ga. 208; Lathrop v. Clewis, 63 Ga. 289; Toler v. Seabrook, 39 Ga. 14; Fountain v. Whitehead, 119 Ga. 242 (46 S. E. 104). Judgment affirmed.


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    934.
    GORDON & COMPANY v. COBB.
    1. Where a consignment of property is made to a factor for sale, and he makes advances thereon with the consent of or by the direction of his principal, an agency coupled with an interest arises.
    2. Ordinarily an agent must be guided wholly by the wishes or directions expressed by his principal, but in cases of an agency coupled with an interest, unreasonable instructions, detrimental to the agent’s interests, may be disregarded.
    3. Even if the factor exceeds his power and sells the property in an un- ’ warranted manner, no cause of action flows to the principal, unless some damage ensues to him on account of the agent’s misconduct.
    4. Where the only legal verdict possible in a case has been gendered, the action of the trial court in granting a new trial will be reversed.
    Complaint, from city court of Wrightsville — Judge Faircloth. December 28, 1907.
    Submitted February 18,
    Decided March 16, 1908.
    The defendant had sent to the plaintiffs, as factors, a quantity of cotton to be sold for his benefit; and they advanced to him its approximate value. A tentative grading was made. A price satisfactory to the defendant was offered, and he, supposing that it was based on the tentative grading, instructed a sale. The factors had made a contract of sale at the price named, but upon the purchaser regrading the cotton, it was found to be below the average indicated in the tentative grading previously made. Upon being notified of this, the defendant ordered the plaintiffs not to deliver the cotton; but the latter, disobeying this instruction, completed the sale and made delivery. The sum realized was not enough to pay the advances, and the factors sued the defendant for a recovery of the difference between the sum advanced and the sum realized from the sale of the cotton. The defendant filed a plea of recoupment, setting up that the plaintiffs had violated his instructions by delivering the cotton, and claiming the difference between the tentative grading and the grading on which the delivery was made. It was shown that the sale was made at a good price, and that a sharp and continued decline in the cotton market immediately ensued. There was a verdict for the plaintiffs. The defendant’s motion for a new trial was granted, and the plaintiffs excepted.

      A. L. Hatcher, for plaintiffs. Daley & Bussey, for defendant.
   Powell, J.

(After stating the foregoing facts.)

In an ordinary agency the agent has or should have no other interest than that which comes from obeying his principal’s wishes and instructions. However, instances arise in which the agent has not only the power to represent his principal, but also a direct interest in the subject-matter of the agency; and in such cases he has a broader discretion. It is frequently a matter of close discrimination to determine whether the relation existing between the parties is that of an ordinary agency, or that of an agency-coupled with an interest; for the interest referred to is not an interest in that which is produced by the power, but is an interest in the subject on which the power is to be exercised; “it must be an interest in the thing itself, and not merely in the execution of the power.” See Hunt v. Rousmanier’s admrs., 8 Wheat. 174 (5 U. S. (L. ed.) 589). A factor who, by the consent or direction of his principal, makes advances upon the goods placed in his hands for sale acquires such a special property in the goods as to make him an agent with an interest in the subject-matter of the agency. Clark & Skyles on Agency, §165. “Whenever a consignment is made to a factor for sale, the consignor has a right, generally, to control the sale thereof according to his own pleasure, from time to time, if no advances have been made, or liabilities incurred, on account thereof; and the factor is bound to obey his orders. This arises from the ordinary relation of principal and agent. If, however, the factor makes advances, or incurs liabilities on account of the consignment, by which he acquires a special propertjr in the goods, then the factor has a right to sell so much of the consignment as may be necessary to reimburse such advances, or meet such liabilities; unless there is some agreement between himself and the consignor which contracts or varies this right.” Brown v. McGran, 14 Pet. 479 (10 U. S. (L. ed.) 550).

In discussing the relations of principal and agent between themselves, our Civil Code, §3004, declares: “The agent must act within the authority granted to him, reasonably interpreted; if he exceeds or violates his instructions, he does it at his own risk, the principal having the privilege of affirming or dissenting, as his interest may dictate. In cases where the power is coupled with an interest in the agent, unreasonable instructions, detrimental to the agent’s interest, may be disregarded.” In the case of a simple consignment of goods, without any interest in the consignee, or any advance or liability incurred on account thereof, the wishes of the consignor may fairly be presumed to be orders; and the “noting the wishes accordingly,” by the consignees, an assent to follow them. But very different considerations might apply where the consignee should be one clothed with a special interest, and a special property, founded upon advances and liabilities. If, contemporaneously with the consignment and advances or liabilities, there are orders given by the consignor, which are assented to by the factor, that the goods shall not be sold before a fixed time, in such a case the consignment is presumed to be received subject to such order; and the factor is not at liberty to sell the goods to reimburse his advances, until after that time is elapsed. So when orders are given not to sell below a fixed price; unless the consignor shall, after due notice and request, refuse to provide other means to reimburse the factor. In no case will the factor be at liberty to sell the consignment, contrary to the orders of the consignor, although he has made advances or incurred liabilities thereon, if the consignor stands ready and offers to reimburse and discharge such advances and liabilities. When the consignment is made generally, without any specific orders as to the time and mode of sale, and the factor makes advances and incurs liabilities on the footing of such consignment, the legal presumption is, that the factor is to be clothed with the ordinary rights of factors, to sell, in the exercise of a sound discretion, at such time and in such manner as the usage of trade and his general duty require, and to reimburse himself for his liabilities, out of the proceeds of the sale; and the consignor has no right by subsequent orders, given after advances have been made, or liabilities incurred by the factor, to suspend or control this right of sale, except so far as respects the surplus of the consignment not necessary for the reimbursement. of such advances or liabilities. Brown v. McGran, supra. In the case just cited, there is a full discussion of this subject by Mr. Justice Story; and it is so full, lucid, and complete that anything we might undertake to say further than to apply these principles to the facts at hand would be utter superfluity.

It is palpable, from what has been said above, that the factors in this case would have been justified in exercising a liberal discretion in originally making a sale or in completing it, even against the objections of the principal. It is plain that as between buyer .and seller, and as fixing the actual value of the cotton, the grades as finally ascertained, and not as tentatively believed by the factor and his principal, would have to govern. If the factor had been without interest in the subject-matter, it would have been his duty to disregard his own judgment and to follow the instructions of his principal, no matter how unbusinesslike those instructions may have been. However, the agent in this case had a substantial interest even as great as the'full value of the cotton, and before the'principal could successfully hold him responsible for a violation of the instructions, he had the burden of showing that the agent had exercised an excess of discretion unreasonable under the circumstances; and further that a loss had followed. In this case, even though for the sake of argument it should be conceded that an abuse of authority on the agent’s part was shown, the principal failed to show any loss therefrom. To have established loss, the principal had the burden of showing, not that he desired the cotton held for a better price or for a better grading, but that a better price was obtainable, or that a better grading was warranted by the actual condition of the cotton. To the contrary, it appears that the cotton was sold at an opportune time and advantageously to the owner. Compare the concluding statements in the opinion in the case of Brown v. McGran, supra.

The verdict for the plaintiffs was demanded. While the trial judge has a broad discretion as to the first grant of a new trial, a discretion with which this court will not lightly interfere, yet where the verdict rendered is the only one legally possible under the facts of the case, it is reversible error to set it aside.

Judgment reversed.