author: Hill, C. J. Powell, J.,

text:
    1014.
    EDWARDS v. THE STATE.
    1. To slioot in the direction of another, not to hit him, but only “to bluff or scare him,” does not, without more, make an assault. The intention to commit a violent injury on the person, coupled with the at- ( tempt to do so, constitutes this offense.
    2. A statement by the court to the jury as to what a witness has testified, where such testimony is material and prejudicial to the accused, is reversible error.
    Conviction of assault, from Bartow superior court — (Judge Eite. February 1, 1908.
    Argued March 11,
    Decided March 30, 1908.

      James B. Conyers, for plaintiff in error.

      Sam P. Maddox, solicitor-general, contra.
   Hill, C. J.

The plaintiff in error was indicted for the offense of assault with intent to murder, and was convicted of the offense of assault. His motion for a new trial being overruled, he brings his case here. The evidence, in brief, shows that the defendant. .either shot at the prosecutor with a pistol, or that he shot in the /direction of the prosecutor, with no intent to hit him. In other words, the sole issue in the case was whether the accused, in shooting, was actuated by criminal intent or harmless mischief. This was a question of fact, for the determination of the jury; • and as there is to be a new trial of the case, we will not express any opinion on the facts. The question for our determination arises upon the charge of the court, which, so far as excepted to, was in these words: “If the defendant shot at the negro, intending to hit him, but not to kill him, he would be guilty of the offense of shooting at another, whether he hit him or not. And if you find that he shot in the direction of this party, as he testifies, but not to hit him, but only to bluff or scare him, then he would be guilty of a simple assault.” This charge is assigned as error on two grounds: (1) “Because, an assault being an attempt to commit a violent injury upon the person of another, as defined by the law, the shot in the direction of the party, but not to hit him, could not possibly lie an assault; and it was therefore erroneous in the court to tell'the jury that from these facts, if they found them to be true, the defendant could be found guilty of a simple assault.” , (2) Because the expression used by the court, “as he testifies” (alluding to the prosecutor), was an intimation or expression as to what had been proved in the case, and was therefore a violation of section 4334'of the Civil Code.

The Penal Code of this State, §95, defines an assault as “an attempt to commit a violent injury on the person of another.” This definition is in' substance the same as that of the common law. Blackstone says that an assault “is an attempt or offer to beat another, without touching him.” 3 Bl. Comm. 120. Bussell -describes an assault as “aniattempt or offer with force and violence to do a corporal hurt to another.” 3 Buss. Crimes, §1019. Boscoe 'defines it as “any attempt or offer with force or violence to do a corporal hurt to another, whether from malice or wantonness.” Bos. Ev. 257. Bacon, in his Abridgment, says that “an assault is an attempt or offer, accompanied by a degree of violence, to commit some bodily harm, by any means calculated to produce the end if carried into execution. Levelling a gun at another within a distance from which, supposing it to have been loaded, the contents might wound, is an assault.” American writers on criminal law have adopted substantially the same definition. Greenleaf says that an assault is “an intentional attempt by force to do an injury to another.” 3 Gr. Ev. 59. And Wharton defines it as an “intentional attempt by violence to do an injury to another.” Whar. Or. L. §1541. It is also defined in law dictionaries as an “attempt unlawfully to apply any actual force, however small, to the person of another, directly or indirectly.” The courts, both of England and of this country, have generally accepted this definition, and have applied it in the decision of cases to which it was pertinent. From text-writers and the decisions of courts, we deduce the proposition that an intent to injure is the gist of the offense of assault; that it necessarily includes the idea of intended violence towards the person assaulted. In every assault there must be an intent to injure. The test is, was there a present purpose of doing a bodily injury? If so, the acts will amount to an assault, otherwise they will not. In other words, the intention to do bodily harm is of the essence of an assault. It is an inchoate violence, with the present means of carrying the intent into effect. Pointing a pistol at another would perhaps be sufficient evidence of an intent to do harm, if nothing more appeared; and in this State the intentional pointing of a pistol at another, whether loaded or unloaded, ?s made a misdemeanor. Penal Code, §343. But if the pointing of the pistol was done playfully, or was accompanied by the declaration that there was no intention to shoot, and a disclaimer of any criminal intent, it would not amount to a criminal assault. In all cases it would be a question for the jury to determine, from the facts, as to the intent; for if the prosecutor haá reason, in view of all the circumstances, to apprehend danger, notwithstanding pacific declarations, the jury might be authorized to find the existence of a criminal intent. We do not. think, if one shoots in the direction of another, not intending to hit him, but only intending to scare him, that the shooter would in law be guilty of an assault. As was said by the Supreme Court of Wisconsin, in Degenhardt v. Heller, 93 Wis. 662 (68 N. W. 411, 57 Am. St. R. 945), “the firing of a revolver in close proximity to a person, without pointing it at him, and with no intention to harm him, but only to frighten him, is not an assault.” Greenleaf declares that “in the case of a mere assault, the qúo animo is material, as, without an unlawful intention, there i& no assault.” 2 Gr. Ev. §94. We do not doubt that the firing of a pistol in the direction of another, within a distance in which it might do execution, although with the intention of frightening only, might amount to an assault. And if one should recklessly fire a pistol in the direction of another, it might constitute an assault; for the offense may consist in putting another in fear of violence. But to charge, without qualification, that if' the accused shot in the direction of the prosecutor, not intending to' hit him, but only “to bluff or scare him,” he would be guilty of an assault, is error.

The case of Crumbley v. State, 61 Ga. 582, is relied upon by the solicitor-general. In that case Judge Bleckley, speaking, for the court, says, “To shoot at another with a gun, at a distance of twenty steps, is an assault, even if the gun be loaded with powder only.”' But in that case the prosecutor was shot at, and the distance was only twenty steps, and it was not pretended that the prosecutor knew with what the gun was charged, or for what purpose it was. presented at him and fired. This decision is interpreted by Judge Bleckley in the case of Clark v. State, 84 Ga. 577 (10 S. E. 1094). “We think the true law of powder guns is this, that if they be discharged without legal excuse at another who is within the distance to which they will carry their load or any part of it, the offense is committed; but what that distance is, is a question of fact for the jury;” and (p. 578) that “there was no purpose, in Crumbley v. State, . . to treat it otherwise, the essential matter in that case, under the finding of the jury, being only as to a mere assault j and that the facts proved constituted an assault there could be ne doubt.” We do not think that the learned jurist meant to.hold that to shoot in'the direction of a person without any intention to hit him, and beyond the possible range of the gun, could amount to an assault. To so hold would be contrary to every' definition of such an offense; for to constitute the offense, there must of necessity exist the purpose, coupled with the attempt to inflict bodily •injury. We think there is material difference in shooting at another and shooting in the direction of another. The former, of course, includes the latter; but the latter does not necessarily include the former. To shoot at, in a criminal sense, necessarily implies a sufficient nearness to the person shot at /to render the act actually or apparently dangerous; but to shoot in the direction of a person conveys no such definite idea of the intervening space. We therefore conclude, as before stated, that the learned judge erred in charging, without qualification, as above set out.

The charge is further objected to on the ground that it contains a statement by the court as to what the prosecutor had testified, and was therefore a violation of §4334 of the Civil Code. It has been frequently ruled by this court and the Supreme Court that a statement by the court to the jury as to what a witness has testified is an intimation or expression of opinion as to what has been proved, within the meaning of this section. Davis v. State, 91 Ga. 167 (17 S. E. 292); Suddeth v. State, 112 Ga. 409 (37 S. E. 747); McVicker v. Conkle, 96 Ga. 597 (24 S. E. 23). Following these decisions, we are constrained to hold that the trial court committed an error in making the following statement to the jury: “If you find he shot in the direction of this party” (meaning the prosecutor), “as he testifies,” etc. Judgment reversed.

Powell, J.,

concurring specially. I agree to the reversal, on the ground stated in the second headnote; but I think that fright is such bodily harm that to shoot in the general direction of a person, with intent to “bluff or scare” him, is an assault.


source: Caselaw Access Project

author: Hill, C. J.

license: Public Domain

text:
    1022.
    Hill v. The State.
    Accusation of pointing gun at another, from city court of Hart-well — Judge Hodges. January 8, 1908.
    Submitted March 11,
    Decided March 30, 1908.

      A. G. & Julian McGurry, for plaintiff in error.

      James H. Shelton, solicitor, contra.
   Hill, C. J.

No error of law is complained of, and the verdict is fully supported by the evidence. Judgment affirmed.


author: Russell, J.

text:
    1025.
    SIMON v. MAYOR AND ALDERMEN OF SAVANNAH.
    1. A bond for the eventual condemnation money is no substitute for the bond required in order to certiorari from a judgment of conviction for the violation of a municipal ordinance.
    2. A writ of certiorari, without a legal bond, is a nullity and must be dismissed. The filing of a proper bond or of an affidavit in forma pauperis is an indispensable prerequisite to the issuance of the writ of certiorari.

      3. It is not error to dismiss a certiorari where tlie condition of the bond, given to obtain the writ reviewing the judgment of a municipal court, is not in the terms provided by the act of 1902 (Acts of 1902, p. 105). The decision in this case is controlled by the judgment in McDonald v. Town of Ludowici, 3 Ga. App. 653 (60 S. E. 337).
    Certiorari, from- Chatham superior court — Judge Cann. December 24, 1907.
    Submitted March 1,
    Decided March 30, 1908.

      E. H. Abrahams, for plaintiff in error. S. B. Adams, contra.
   Russell, J.

The plaintiff in error was charged with the violation of three municipal ordinances of the City of Savannah; and, -by consent, the three charges were consolidated, and the recorder entered a-single judgment. The defendant sued out a certiorari to the superior court. Upon the hearing the certiorari was dismissed, upon the ground that the bond required by the statute had not been given, ahd because one writ had undertaken to bring up three judgments in three separate cases. There can be no question that the judgment of the judge of the superior court in dismissing the certiorari was right, if based upon the first ground of the motion alone. And a judgment which is right will be affirmed, if sustainable for any reason.

The defendant gave a bond with security, in the sum of $300, conditioned to pay the eventual condemnation money. Such a bond is no substitute for the bond required by law in order to obtain a writ of certiorari from the judgment of a municipal court. The bond given was that provided for in the Civil Code, §4639. But the acts'of 1902 (Acts of 1902, p. 105) require that the bond in such eases as this shall be made conditioned to abide the judgment of the superior or mayor’s court. As pointed out in McDonald v. Ludowici, 3 Ga. App. 653 (60 S. E. 339), the purpose of the General Assembly in requiring these bonds to be conditioned for the appearance of the defendant to abide the final order of the superior court, as well as that of police or mayor’s court, is apparent. If such a certiorari is sustained and the case is sent back to the police court for another trial, and there finally disposed of, the bond is to bind the defendant to answer the judgment there. If, on the other hand, the certiorari is dismissed or overruled in the superior court, this would be a final judgment to which the defendant is, by his bond, required to respond. As there is no authority for issuing a writ of certiorari until a bond has been filed (except where the defendant, from his poverty, is unable to give bond), a certiorari which has issued without the filing of the bond required by law is a nullity, and must be dismissed. The filing of a proper bond, or of an affidavit in forma pauperis in lieu of such bond, is an indispensable prerequisite to the existence of the certiorari. It is not error to dismiss a certiorari where the condition of the bond given to obtain the writ reviewing the judgment of a municipal court is not in the terms provided by the act of 1902, supra. The decision in this case is controlled by the judgment in McDonald v. Town of Ludowici, supra. The terms of the act of 1902 are mandatory, and it was the duty of the judge to dismiss the certiorari as he did.

It is unnecessary to consider whether the certiorari should have been dismissed upon the other ground, that the writ of certiorari undertook to bring up three judgments in three separate cases; because, the certiorari being a nullity for lack of a bond, the contents of the petition are not subject to our investigation.

Judgment affirmed.


text:
    830.
    WALTON v. HENDERSON, guardian.
    1. A homestead exemption set apart to a widow out of the estate of her deeeased husband for the benefit of herself and their minor children, in so far as her interest in the homestead is concerned, on her subsequent marriage, becomes vested in the minor children during their minority. On her death intestate, neither her administrator nor her surviving husband has an interest in the same, as it constitutes no part of her estafé.
    2. “In estimating the value of personalty unlawfully detained, .the plaintiff may recover the highest amount which he can prove between the time of the conversion and the trial.”
    3. A tender in trover must embrace all the property claimed by the plaintiff, must be unconditional, and must disclaim all claim of title. A conditional tender makes an issue; and if the issue is decided against the defendant, he must pay the cost of the action.
    Trover, from Jasper superior court — -Judge Lewis. October 23,. ■ 1907.
    Submitted January 20,
    Decided April 9, 1908.

      A. Y. Clement, for plaintiff in error. W. S. Florence, contra.
   Hill, C. J.

Henderson, as guardian- of four minor children, brought suit in trover, in Jasper county court, against' Walton. The defendant gave a replevj' bond covering all the property claimed in the suit, and, by consent, the case was appealed, for trial, to the superior court. When the case was called for trial in the superior court, the defendant admitted that he had in his possession certain of the articles described in the petition, which articles he had at the first term tendered to the plaintiff, disclaiming all claim of title. This tender did not embrace all the property described in the petition and the affidavit, there being articles described therein which the defendant refused to tender, and to which he claimed title. On the trial the plaintiff elected to take a money verdict; and, under the evidence, the jury found in favor of the plaintiff the sum of $90. The defendant filed a motion for a new trial, which was overruled.

The evidence, briefly stated, is as follows: Henderson, who filed the petition in behalf of the minors, had been duly appointed their guardian. His wards were the four minor children of the wife of the defendant by a previous marriage. During her widowhood she had had the personal property in controversy set apart as a homestead for herself and these children. After her marriage to the defendant these children continued to live with her, and, at her death, this property was left in the possession of the defendant. She died intestate, and there was no administration on her estate. Before bringing the suit, the plaintiff, as guardian, made demands on the defendant for the property and he refused to deliver any párt of it, hut claimed an interest in it. The plaintiff in error submits for our decision three questions. He contends: (1) that as the heir of his wife, with these children, he was, as to the said property, a tenant in common with them; and as there had been no partition of the property, an action in trover could not he maintained in their behalf; (2) that the verdict for $90, as the value of the property in controversy, was without any evidence to support it, as there was no evidence of any market value of the articles to which the plajntiff was entitled, the evidence as to the value of these articles being entirely fanciful, imaginary, and speculative; and (3) that the court erred in instructing the jury to return a money verdict; because the defendant had at the first term of the court, and in his answer then filed, made a tender of all the articles embraced in the demands, petition, and affidavit, with the exception of those things, fully •described, which the defendant claimed in his individual right, and because the plaintiff had failed to show that he was entitled to recover more than the articles thus tendered.

It is well settled, as a general rule, that trover will not lie in favor of one tenant in common against his eotenant; for the •one tenant is as much entitled to the possession of the property •as the other, and in law the possession of one is the possession of both. There are certain exceptions to this general rule, but these, as well as the rule itself, are not applicable here. In this case, under the facts and the law applicable thereto, the defendant was not a cotenant with the wards of the plaintiff. The homestead had been set apart to them and their mother out of the estate of their father. Upon their mother’s marriage, her interest in the homestead exemption became vested in them during their minority, and after her marriage she had no further title to any part of the homestead; and, of course, this defendant, as her surviving husband, could have no interest in it, and on the death of their mother the guardian of these minor children was entitled to the possession of all of this exempt property for the benefit of his wards. Braswell v. McDaniel, 74 Ga. 319; Love v. Anderson, 89 Ga. 612 (16 S. E. 68).

It is true that where the plaintiff in an action of trover elects to take a money verdict, the value of the converted property •at the time of conversion, or at some period between the conversion and the trial, must be proved, to. authorize such a verdict; and it may be true that the market value is the correct measure, where there is any controversy on the question of value. In this case the evidence in behalf of the plaintiff, on the subject of value, would have authorized the jury to return a verdict for a much larger sum than that found by them as the value of the property •described in the petition and affidavit, and covered by the replevy bond. There appears no foundation for the assumption on the part of the plaintiff in error, that the jury found the plaintiff was entitled to only a portion of the articles described in the petition. The jury, under the pleadings and the evidence, could have found that the plaintiff was entitled to all the articles described; and if they so thought, it follows that a money verdict for $90 was fully supported, it appearing that the value of all the articles in question was given by some of the witnesses as being $200. The plaintiff in error has no just ground to complain of the amount of the verdict.

The court did not err in instructing the jury to return a money verdict. While it is true that section 5335 of the Civil Code, which authorizes such instruction at the election of the plaintiff, should be construed in connection with §3897 on the subject of tender and disclaimer of title, we do not think the facts in this case show a compliance with the latter section. The defendant, at the first term, made a tender of only a portion of the property claimed by the plaintiff, and, instead of disclaiming all claim of title, set up an adverse title to a certain portion of the property described in the petition and in the replevy bond. Besides, the evidence for the plaintiff proves a previous demand made by him on the defendant, and a refusal to deliver the property. The replevy bond executed by the defendant coveted all the property claimed by the plaintiff; and the defendant admitted in judicio that the plaintiff was entitled to a portion of the property then, and at the date of the previous demand. After the defendant had refused to deliver the property in response to a previous demand on him, and had given a replevy bond covering all the property in question, and had admitted that, at least as to a portion of the property demanded, his possession was wrongful, he was not in a position to claim any advantage from what he denominated a ten-)( der of the property. Under these circumstances, his tender was clearly insufficient in law, and the court did right to instruct the jury to render a verdict for the value of the property, in accordance with the election of the plaintiff. Trammell v. Mallory, 115 Ga. 748 (42 S. E. 62); Phillips v. Taber, 83 Ga. 565 (10 S. E. 270). Judgment affirmed.


text:
    887.
    MEINHARD, SCHAUL & COMPANY v. BEDINGFIELD MERCANTILE COMPANY et al.

    1. The verdict returned was the only verdict that could have been rendered, under the undisputed evidence. Regardless of the agreement between the defendants to consider their business as a corporation, the necessary result of the association, so far as third persons were concerned, was to form a copartnership.
    2. A corporation can not be created by a mere agreement between individuals; the agreement and association must be authorized and sanctioned by law. Corporations are creatures of the law, and can only come into existence in the manner prescribed, by law. No agreements of the incorporators are of any effect in creating a corporation or in attaching liability to a corporation, until a charter has been granted by the proper authority, and accepted, and the organization of the corporation perfected.
    3. By the very nature of the business they were carrying on, the defendants were in partnership up to the time that the charter was granted and organization perfected thereunder. Individual liability as to third parties can not be avoided by resolutions or agreements to create a corporation, when no charter has been granted. The promoters of a corporation are each individually liable for debts created in behalf of a proposed corporation, unless these debts are paid by the corporation, after its organization.
    4. In every mercantile partnership each partner has the right to buy and sell goods used by the partnership in the ordinary course of its business; and even when one is not in fact a partner, he may be held out as such, either by a course of dealing or by ratification of acts performed by him as an ostensible partner.
    5. 6. The error-in not excluding the testimony objected to, like the evidence itself, was immaterial.
    7. Where there is no conflict upon those issues which must absolutely control the result, and where no error of law, the correction of which might authorize a different finding upon the same testimony, has been committed, it is error to set aside a verdict rendered in accordance with the law and the evidence.
    Complaint, from city court of Dublin — Judge Burch. October 28, 1907.
    Argued February 5,
    Decided April 9, 1908.

      Ira S. Chappell, Mayson & Hill, for plaintiffs.

      W. C. Davis, 8. W. Sturgis, for defendant.
   Russell, J.

Meinhard, Schaul & Company (the plaintiffs in error) brought a suit against the defendants in error, on an account for goods furnished. The action was brought against the defendants as a partnership, composed of H. B. Bedingñeld, A. B. Daniel, and M. L. Clance. The jury rendered a verdict in favor of the plaintiffs; and, upon motion for new trial, the judge set aside the verdict and granted a new trial.

The discretion of the trial judge, in the first grant of a new trial will not be interfered with, so far as the evidence is concerned, unless the verdict rendered was demanded by the evidence, or unless, in a case where there was conflict in the evidence, material errors of law upon the part of the judge may have induced or contributed to the jury’s finding. In the present instance we think that the court erred in granting a new trial; for the reason that the verdict rdndered was the only verdict that could have been legally returned, under the undisputed evidence and the law applicable thereto. The plaintiffs brought their suit against the defendants as a copartnership, and the defendants denied that there was a partnership. We come first, then, to consider whether or not there was a partnership in fact, or liability on the part of the defendants as partners because they held themselves out as such and thereby created a partnership so far as the rights of these plaintiffs are concerned. Certain facts in the case are undisputed, • — -that the plaintiffs were informed by the defendant Clance, before taking the order for the goods, that he and H.'E. Bedingfield and A. B. Daniel were copartners, that Bedingfield and Daniel were men of means, while he had no propertj'-, and that it was intended to incorporate the business in 1906; that the goods, for the price of which the suit was brought, were ordered November 23, 1905, and shipped November 25, 1905, and were received by the “Bedingfield Mercantile Company,” and converted to their use as a part of their stock of goods, and never paid for; that no charter was ever granted authorizing the incorporation of the Bedingfield Mercantile Company, ’until February, 1906, three months after the defendants received the goods. There was no evidence as to when the charter granted them in February, 1906, was accepted by the corporation, other than that it was as soon as they received the charter. • It appeared, from the evidence, that the business began in September, 1905, under an agreement between Bedingfield, Daniel, and Clance, that the business was to be run as a corporation, and not as a partnership; and that as soon as they agreed to go in together they formed an association and elected officers, agreeing to do business as a corporation until they could get their charter.

It is certain, from the foregoing statement of facts, that the plaintiffs did not deal with a corporation; that there was no corporation at the -time the goods were bought and shipped, and there can be no cofporate liability. So that if the defendants are not liable as a copartnership, there is no liability. It is immaterial what agreement these defendants may have made among themselves, by which they determined they would consider themselves as a corporation and would be so considered. Corporations are^creatures of the law, and can only come into existence in the manner prescribed by law. Unless the charter was granted, and thereafter accepted by the incorporators, and an organization perfected in compliance with its provisions, all of the agreements of the incorporators were nugatory and absolutely void and of no effect in creating a corporation. This being the state of the law, it was immaterial, for the purposes of the case, whether the plaintiffs knew, when they furnished the goods, that- the defendants intended to form a corporation, or not. They had not done so, and could not, without a charter; and in dealing with each other, both plaintiffs and defendants were bound by the law, and presumptively acted understandingly with reference to the law. Both plaintiffs and defendants knew, when the goods were received and placed upon the shelves of the defendants’ store, that without a charter, and proper organization under the charter, there was no ]/ corporation, and there could be no corporate acts, no corporate liability, and no corporate property. Michael v. Davidson, 3 Ga. App. 752 (60 S. E. 362); Bartram v. Collins, 69 Ga. 751; Rau v. Union Paper Mill Co., 95 Ga. 212 (22 S. E. 146).

We think the fact that there was a partnership is proved by the testimony of Ií. B. Bedingffeld himself, in that in his testimony there is nothing to differentiate in any respect the business to be carried on by himself, Daniel, and Clance, or their relationship to the public, from any general partnership, except their own resolution that they would consider themselves, and would be considered, as a corporation. It matters not what might be their resolution, the true test of their relationship, as to the outside world, would depend upon whether they were in fact a corporation, and were thereby relieved from individual liability, or whether, by reason of the very nature of the business they were carrying on, they were jointly and severally liable for all of the indebtedness created up to the time that the charter was granted and an organization perfected thereunder. Much stress is laid on the objection to the testimony adduced by the witnesses Vinson and Schaul; and some portions of their testimony is inadmissible. But so far as the point at issue is concerned, the testimony of Bedingffeld himself is the same, as to individual liability, as the statements alleged to have been made by Clance to Yinson, and by him communicated to Schaul, as a basis of credit.- It may be that the statement as to the financial responsibility of Bedingfield and Daniel influenced the plaintiffs in extending credit, but if such a statement had never been made and the goods had been sold within it, Daniel and Bedingfield, under the testimony of Bedingfield himself, would be responsible for the goods; because they were engaged in a joint business with Clance, and ratified his purchase, by receiving the goods and getting the benefit of them. It would be unconscionable to allow several- persons, who, under the law, could share in the profits if there were profits, to say that by private resolution they could take the goods of another, upon which those profits depended, and escape all liability for payment, by their private agreement to be a corporation. To my mind such a proceeding as this would be monstrous. Let it be conceded that the defendants knew nothing of Clanee’s statement to the salesman of the plaintiffs, and let it be conceded that they had an agreement by which the Bedingfield Mercantile Company, so called, was to be a corporation full grown three months before the law said it had a right to be born, yet, under the undisputed evidence, the relationship was nothing more than a partnership, in which Bedingfield and Daniel were, so far as the plaintiffs are concerned, secret partners. And the liability of secret partners, when they are discovered, is no less than if they had been all along ostensible partners. As a general rule, promoters of a corporation are each individually liable for/ debts created in behalf of the proposed corporation, unless these debts are paid by the corporation after its organization.

The evidence, however, does not show that the defendants were secret partners, so far as these plaintiffs were concerned. The legal effect' of Mr. Bedingfield’s testimony, waiving the agreement inter sese, is that Clance was a partner up to the time that the charter was granted and the organization of the corporation perfected, and this was several months after the defendants got the plaintiffs’ goods. Clance, being a partner, had a right to buy the goods, unless the other partners had informed the public that he had no authority to buy goods. And as he was a partner, it is doubtful if a sale to him would not have been good during the existence of the partnership, even in spite of such a notice. In a mercantile partnership every partner has the right to buy property for the partnership and to sell partnership property. But, even if there was in fact no partnership, these defendants, by their course of dealings, held Clance out to the world as a partner, by allowing him to buy goods, and knowingly accepting the goods that he bought; and even if a partnership never existed as between these defendants, they can not, after having received all of the fruits of Clance’s purchase, be heard to deny that a partnership did in fact exist. Mr. Bedingfield does not deny that he knew when these goods came into the store. On the contrary, he testifies that he did know when they were received. Can the jury infer otherwise than that he would naturally inquire (as he testifies that he was to buy the dry goods) who bought these goods, and, as the goods were not returned to the plaintiffs, that he was satisfied with and ratified the purchase in behalf of the entire firm? There can be no other inference than that if Bedingfield was to purchase the goods for the “association,” the purchase of the goods in question was ratified.

“Diligence in ascertaining and contradicting the report is not required of one who is held out as a member of a partnership, without his knowledge” (Campbell v. Hastings, 29 Ark. 512); but where a person, with his knowledge and consent, has been held out to third parties as a partner, liability as a partner is fastened on him; and a secret and unauthorized holding out will have this effect as the result of a subsequent ratification. See Butler v. Hinkley, 7 Colo. 523 (30 Pac. 250). In Slade v. Paschal, 67 Ga. 541, it was held that if A told B that he was a partner of C, and B informed C of the statement, to which C made no reply, C would be liable as a partner. The conduct of the parties in this case in carrying on business jointly, with no other reservation or better protection than the agreement that they would be considered a corporation and do business as such, if it did not amount to an actual holding out of themselves as partners, at least can not affect the rights of those who observed their course of business and dealt with them accordingly. “Persons not partners inter se may render themselves liable as such to third persons by holding themselves out to be partners. And on the principle of estoppel this may be by word spoken or written, or by conduct leading to the belief that they are partners.” Cirkel v. Croswell, 36 Minn. 323 (31 N. W. 513). It is not true in this case, as in Barnett Line of Steamers v. Blackmar, 53 Ga. 98, that the name under which the defendants did business imported a partnership; -but not only the absence of any corporate existence, but also the nature of the relation actually existing between them, created a partnership; and certainly, as to the particular goods involved in this case, the partnership was ratified by the defendants. What Clance told the salesman of the plaintiffs did not differ in its material details from the truth as testified by the defendants on trial. Both Daniel and Bedingfield were interested in the business, and Clance was interested with them, and the legal effect of their association was to render each liable for all debts created prior to their proposed incorporation. There can. be no other inference than that Daniel and Bedingfield knew the legal effect of their association. They thereby permitted themselves to be held out as partners. “A person who permits himself to be held out as a partner is liable as such to one from whom credit is secured on the strength of the supposed relation.” Brugman v. McGuire, 32 Ark. 733; Fisher v. Bowles, 20 Ill. 396; Walrath v. Viley, 65 Ky. 478; Chidsey v. Porter, 21 Pa. St. 390. “Parties to an agreement reciting a state of facts establishing a partnership relation are, as to third persons, dealing on the faith of such recital, estopped to deny the state of facts assumed by such an agreement.” Delaney v. Dutcher, 23 Minn. 373. See also Wiley v. Deering, 34 Ill. App. 169; Thurber v. Carter, 30 Tenn. 271.

The objections urged in the first and second grounds of the amended motion, to the admission of the evidence of Vinson, rest upon two propositions: (1) that the statement made by Clance to Vinson was not in the presence of the other defendants, and (2) that he had not been served, and for that reason was not a party to the suit. As we view it, if the testimony of Mr. Vinson be excluded from the evidence-, a verdict in behalf of the plaintiffs would still be demanded. As all of the evidence clearly shows that the effect of the agreement admitted by the defendants was to create a partnership, the error in not excluding that portion of the evidence of Vinson which was objected to is harmless.

The various objections made to. the testimony of M. H. Sehaul should have been sustained, as the testimony objected to was hearsay and inadmissible. But the error in this respect is harmless, especially as most of the answer objected" to referred to the financial condition of some of the parties; and their respective financial worth was immaterial, after the partnership was shown. For the same reason it is unnecessary to pass upon the objections urged to the letters offered in evidence.

If there had been a conflict in the evidence as to the material matter in the case, to wit, whether a partnership really existed between Clance and ttie other defendants, we should not interfere with the discretion of the trial judge in granting a new trial. It is the right of the trial judge, upon review, and his duty, to exercise a discretion which operates solely upon the credibility of the witnesses. But where there is no conflict upon those issues which must absolutely control the result, and where no error of law, the correction of which might authorize a different finding upon the same testimony, has been committed, it is error to set aside a verdict rendered in accordance with the law and the evidence. Judgment reversed.


author: Powell, J.

text:
    928.
    FELTON v. CITY OF ATLANTA.
    1. The business of plumbing is so related to the public.health that the regulation of it is a legitimate subject for the exercise of the police power. However, the right of every citizen to labor at any and all common and honest employments is of such high importance that any statute or ordinance placing restrictions thereon will be strictly construed.
    2. The ordinances of the City of Atlanta regulating plumbing require all persons who work at that occupation, as master, employing, or journeyman plumbers, to stand an examination and secure a certificate of proficiency. The ordinances do not in terms include apprentices and helpers working under licensed master or journeyman plumbers, and they will not be included by judicial construction.
    3. The evidence not showing that the defendant was engaged as a master or journeyman plumber, but, on the contrary, showing that he was a mere helper to a licensed plumber in charge of the work, his conviction was unauthorized.
    Certiorari, from Fulton superior court — Judge Ellis. December 13, 1907.
    Argued February 5,
    Decided April 9, 1908.
    The plaintiff in error was convicted in the recorder’s court of the City of Atlanta of an alleged violation of section 887 of the city code, which provides, “No person, firm, or corporation, engaged in or working at the business of plumbing, shall engage in or work at said business in the city of Atlanta, either as master, employing, or journejnnan plumber, unless such person, firm,- or corporation first receives a license therefor, in accordance with the provisions of this ordinance.” By other sections provision-is made for the examination of master, employing, and journeyman plumbers before a constituted board, and the issuance of a certificate in the event the examination is satisfactory. There is a statement in the ordinance that “in case of a firm or corporation, the examination and licensing of any one member of the firm or corporation shall satisfy the requirement.” The case comes to this court upon exception to the refusal o‘f the superior court to sustain the certiorari brought to review the conviction. The entire evidence upon which the conviction rests is so brief that it will be set out in full, as follows: “Defendant was employed by and working for M. E. & C. W. Ford, a partnership engaged in the plumbing business in the city of Atlanta. Said partnership have paid the license, and both the members thereof are duly certified by the board of plumbing examiners of the city of Atlanta, as required by law and the ordinance of the city. Defendant himself had no license, and never had stood any examination, nor had he been given any certificate. At the time -of the arrest he was working at the place of business of Davison, Paxon & Stokes, on Whitehall street, in the city of Atlanta, engaged at the time in tearing out plumbing, pipes, etc., in the basement of said business. The purpose of tearing out this'plumbing was to enable M. E. & C. W. Ford to make plans in conformity with the requirements of the city ordinance, for the purpose of enabling them to install new plumbing fixtures. When arrested the defendant was getting lead out of a hub.”
    The defendant makes the following ’ contentions: that the evidence did not show a violation of the ordinance; that the ordinance is unreasonable and contrary to article 1, section 5, paragraph 2 of the constitution (Civil Code, §5735), which preserves to the people of this State “all inherent rights hitherto enjoyed,” because no person could stand the examination without experience, and it would be unlawful to obtain the experience without the certificate to which the examination is a prerequisite; also that the ordinance is unreasonable and contrary to article 1, section 1, paragraph 3, of the constitution (Civil Code, §5700), in that it deprives laborers of the right to work, without due process of law; also that it is repugnant to article 1, section 1, paragraph 2, of the constitution (Civil Code, §5699), which provides that protection to person and property shall be impartial and complete, in that it makes arbitrary and unjust discriminations between plumbers and between individuals and firms or corporations. It is also alleged to be contrary to the “due process of law” clause of the Federal constitution.

      Dorsey, Brewster, Howell & Heyman, for plaintiff in error.

      J. L. Mayson, W. P. Hill, contra.
   Powell, J.

The common inherent right which every citizen has of enjoying the inestimable blessing of laboring at any honest employment he may choose, save only so far as restrictions are necessary to the protection of the public peace, health, safety, and morality, is so well established that limitations thereon are to be strictly construed. Salus populi suprema lex; this, as Judge Bleckley has so happily expressed it (Green v. Coast Line R. Co., 97 Ga. 34, 24 S. E. 814, 33 L. R. A. 806, 54 Am. St. R. 379) is the whole gospel of public policy, condensed in a single text. Wherever the salus populi ends, restrictions upon the right to labor become unreasonable and violative of common right. Plumbing is a business which affects public health, and is therefore subject to regulation under the police power. Most courts so hold. 1 Abbott on Municipal Corporations, §123; Singer v. State, 72 Md. 464 (19 Atl. 1044, 8 L. R. A. 551); Nechamcus v. Warden, 144 N. Y. 529 (39 N. E. 686, 27 L. R. A. 718); State ex rel. Chapel v. Justus, 90 Minn. 474 (94 N. W. 124) ; State v. Gardner, 58 Ohio State, 599 (51 N. E. 136, 41 L. R. A. 689, 65 Am. St. R. 785). Nevertheless, there is respectable authority for saying that .since a city may easily protect itself against the consequences of bad plumbing, by a system of inspecting the work itself, rather than by limiting the number of persons who shall engage in it, those statutes and ordinances which provide that none but examined and licensed persons shall engage in plumbing “skirt pretty closely that border line beyond which legislation ceases to be within the powers conferred by the people of the State upon its legislative bodies.” Nechamcus’s case, supra, p. 535. Such statutes and ordinances must make no discrimination which is not based upon some reason connected with or growing out of that paramount cause in which they find justification for their enactment; else they are void. State ex rel. Chapel v. Justus, supra; State v. Gardner, supra. Indeed, in the case last cited, a statute almost identical in terms with -the ordinance sub judice was declared unconstitutional, for the reason that the exception made in favor of firms and corporations was an unjust and an unreasonable discrimination. We shall make no direct ruling upon the constitutionality of the ordinance, because the conviction is to be reversed on another ground; and the constitutionality of statutes and ordinances will not be passed upon unless an adjudication of that question is absolutely necessary to the determination of the case. We have cited these cases to show that despite the existence of the. power to regulate the business of plumbing, statutes and ordinances for that purpose will be strictly construed, and will not, by construction, be extended beyond the very words used.

The ordinance in question includes within its terms only master, employing, and journeyman plumbers. We understand that master plumbers and employing plumbers are one and the same — those who do not hold themselves out as personally doing the work, but as contracting to furnish the materials and to do the work through others. Journeyman plumbers we understand to be those skilled in the calling, and holding themselves out as able and willing to do the work themselves. Apprentices and mere helpers are not included in the words, of the ordinance, and, as we have shown above, they can not properly be included by judicial construction. We hold, therefore, that where plumbing work is undertaken by a licensed plumber, master or journeyman, who has the responsibility of seeing that it is done correctly, apprentices or helpers working under his supervision and direction are not amenable to the ordinance. This construction renders the ordinance free from constitutional attack on the ground that it affords no opportunity to inexperienced persons of becoming capable of standing the examination so that they may be licensed. It is also in consonance with the legitimate spirit of the ordinance; for-what the public health demands on this subject is that plumbing shall be planned and executed, not necessarily through the manual labor of a person acquainted with sanitary requirements and skilled in the methods by which the best results are to be obtained, but under the control and supervision of such a person. No consideration of public health requiring that apprentices and helpers working under skilled masters or journeymen should be deprived of the free and untrammeled right thus to labor, the city lawmakers saw fit to limit the ordinance so as not to include them; and we doubt seriously that they could have extended it that far without violating rights protected by the constitution.

Under the evidence, the defendant was not violating the ordinance. The work he was doing was in the charge of licensed plumbers; he'was performing rough labor as a mere underling. The spirit of the ordinance has not been violated, nor the letter.

Judgment reversed.


text:
    977.
    WILENSKY v. MARTIN et al.

    1. Agistment is a species of bailment, and the agistor must exercise the ordinary care of a prudent man as to animals placed in his care. An agistor is liable for his own negligence and for the negligence of his servants, but he'is not an insurer. In the absence of a special contract, he is only bound to exercise such care as a man of ordinary prudence would use under the same circumstances towards his own property.
    2. The liability of an agistor may be limited by a special contract. Assent to the stipulations of a parol contract may be implied by silent acquiescence.
    3. The question as to whether an agistor is or is not negligent is one of fact, and for the determination of the jury; and in cases of agistment the jury have the right to take into consideration the usages and customs prevailing upon the subject, and also the traits, qualities, and characteristics of the animals being pastured, as well as the fact that the negligence of the owner may, more or less, have contributed to the injury of which complaint is made.
    Certiorari, from Chatham superior court — Judge Cann. November 23, 1907.
    Submitted February 25,
    Decided April 9, 1908.

      W. H. Boyd, for plaintiff. Wilson & Rogers, for defendants.
   Russell, J.

The plaintiff placed his horse in the pasture of the defendants as agistors. The horse was blind, and fell into an uncovered well in the defendants’ pasture and was killed. A suit was brought to recover the value of the horse, which the agistors refused to pay, relying upon the fact that they informed the agent of the owner of the horse, when they received the animal, that there were at least a dozen places in the pasture where a blind horse might be killed. The jury returned a verdict for the defendants. Exception is taken to the order of the judge of the superior court overruling the plaintiffs certiorari.

We find no error in this judgment. We will first consider the general nature of a contract of agistment, and then inquire whether the liability of the bailee in such a contract of bailment may be limited by the express terms of the special contract, and next, whether the jury were authorized to find that the defendants were not liable, either because the special terms of the contract had been complied with, or because, under the particular circumstances of the case, the plaintiff himself took the risk of the conditions which surrounded his animal and which were the cause of its death.

Agistment is one species of bailment, and, ordinarily, the prudent agistor must exercise the same care towards animals placed in his charge as towards his own property. The same golden rule of diligence to which we referred in Haines v. Chappell, 1 Ga. App. 480 (58 S. E. 220), and Morris Storage Co. v. Wilkes, 1 Ga. App. 751 (58 S. E. 232), applies- to agistor (in the absence of a contract limiting his liability) as applies to other bailees. An agistor is liable for his own negligence and for the negligence of his servants. He' has been held to be liable for turning an animal into a field where another vicious animal was at large, and for allowing strangers to enter his stable at night, so that horses escaped and were lost; for leaving his fences down, by reason of which cattle strayed away and were stolen; and also for damage due to his negligence in the communication of contagious diseases, as well as for failure to provide suitable pasture. But an agistor is not, like an innkeeper or carrier, an insurer. In the absence of a special contract, he is bound only to exercise ordinary and reasonable care, — such care as a- man of ordinary prudence would use under the same circumstances towards his own property. In many jurisdictions it is held that one who claims that he has been damaged by the negligence of an agistor must establish that fact. Story on Bailments, §§213-278, 454; Calland v. Nichols, 30 Neb. 532 (46 N. W. 631); Dennis v. Huyck, 48 Mich. 622 (12 N. W. 878, 42 Am. R. 479); Rey v. Toney, 24 Mo. 600 (69 Am. Dec. 444). Other authorities hold that where loss is shown, the burden is upon the agistor to relieve himself by proof that it was not occasioned by his negligence. In Georgia, by the provisions of the Civil Code, §2896, when loss has been shown, the burden of proof is upon the bailee to show proper diligence.

In the present case the plaintiff sent to the defendants a horse practically blind, to be pastured. It was sent by the plaintiff’s agent and servant. Prior to the sending the plaintiff and one of the defendants had a conversation over the telephone, but this amounted to nothing except an inquiry on the part of the plaintiff as to whether the defendants had a pasture and would take his horse, and a reply to these questions. The defendants had never seen the horse until brought by the agent, and did not know until then that he was blind. The plaintiff had never seen the pasture, in which were an uncovered well about 15 or 20 feet deep, an old canal about 6 feet deep, and several dangerous holes. When, however, the plaintiff’s servant brought the horse and the defendants saw it was blind, they told the plaintiff’s agent that there were more than a dozen, places in the pasture where a blind horse might be killed. In spite of this warning, and perhaps without the defendant’s knowledge, the plaintiff’s agent put the horse in the pasture, and some time thereafter it fell into the well and was killed. The jury was authorized to find that he who carried the horse to the pasture was the plaintiff’s agent, and that a' notice to him was equivalent to notice to the owner. In our view of the case the placing of the horse in this dangerous pasture, after notice had been given of the danger, was, in effect, the creation of a contract by which the agistor limited his liability so as to exclude any casualty which might result from the well, the canal, or the holes in the pasture. As to these the owner himself assumed the risk, and therefore the defendants can not be held liable for an injury which resulted, not from negligence of the agistor in any given particular, but from the dangerous character of the place; of which the plaintiff, through his agent, was fully apprised. The defendants could not be liable for the plaintiff’s servant’s lack of diligence to disclose to the plaintiff the holes in the pasture or inform him of the character of the place, so that he could determine whether he wished to assume the risk. The agistors had the right to assume either that the servant was fully authorized to act in behalf of the master in putting the animal in the pasture after knowledge of its inherent defects, or that the master, having been informed by the servant and still allowing the horse to remain there, had himself determined to assume the risks.

In every contract of bailment the bailee, except where he is a common carrier, has the right to limit his liability by special contract. A contract of agistment is no exception to the general rule. Upon grounds of well-settled public policy, a common carrier is not allowed to limit his liability, but there is no reason why one who takes cattle to pasture can not, by an express contract, relieve himself from liability for any negligence not so gross as to amount to fraud. It is a debatable point whether negligence can ever be fraud. As it appears to us, the two things are not akin. But this is the doctrine of some writers, including Sir William Jones. However that may be, there was no fraud in this case, because the defendants put the plaintiff (through his agent) fully on notice of the dangerous condition of the pasture, as to the blind horse.

We think that the jury were fully authorized to find that the contract of agistment in this case relieved the defendants from liability. It can well be inferred, that the tacit assent of the plaintiff’s servant to the defendants’ declaration that they would not be liable, — that there were a dozen places in the pasture where the horse might be killed, — incorporated into the contract a limitation excluding any liability on the part of the defendants for injury resulting from the well or the canal; and, as the injury resulted from the well, it follows that the defendants were not liable at all. This case seems to us to be quite similar to Mansfield v. Cole, 61 Ill. 191, in which the court held that as the owner knew his horse was “breachy,” and was liable to break out and be lost, he ought to have contracted for extraordinary care. But regardless of this, the whole question as to whether or not an agistor is or is not negligent in a given case is one of fact for the jury (Arrington v. Fleming, 117 Ga. 449, 43 S. E. 691, 97 Am. St. R. 169), and is affected largely by custom and local usage, as well as the controlling principle that the agistor, while he must exercise ordinary diligence as to animals placed in his care, is not ordinarily required to exercise greater diligence in the preservation of the live stock of others than is necessary for the safety of his own. As the pasture contained other animals, and as the evidence discloses that the well and the canal and other excavations were not objects of danger to a horse with good eyesight, either in the day or at night, and as the plaintiff’s agent was informed of the danger so far as blind horses were concerned, the jury could well infer that the plaintiff, by assuming himself the risk of which the defendants had notified him, contracted to relieve the defendants of any liability on this account. The certiorari was, therefore, properly overruled. Judgment affw-med.


text:
    986.
    TIFTON, THOMASVILLE AND GULF RAILWAY COMPANY v. BUTLER et al., survivors.
    1. In an action upon breach of contract, where the damages are not liquidated, interest is not recoverable as such; but the jury in their discretion may increase the immediate amount of damages found, by an allowance of interest. This discretion is to be exercised according to the facts and circumstances of each particular case, and is not the right to decide the question of interest by whim or caprice; it is merely the power of determining from the facts proved whether the injury incurred by the complaining party on account of the breach of the contract can, under all the circumstances, be adequately redressed without an allowance of interest, or not.
    2. Where the jury find in favor of increasing the damages by an allowance of interest, they should not add interest eo nomine, but should express one gross sum as damages.

      (a) Verdicts are to have reasonable intendment; and surplusage or immaterial findings may be rejected, in construing them and in entering judgment on them.
    (b) In an action of the character referred to above, a verdict in the following form: “We, the jury, find for plaintiff $6,265.02 principal, and 7 per cent, interest for 4 years and 4 months, $1,863.68 interest, — $8,-128.70 total,” is irregular, but not illegal. It will be upheld as a finding for $8,128.70 damages.
    3. The court properly admitted in evidence, in corroboration of the plaintiffs’ testimony, their books of account.
    4. (a) Testimony is admissible which tends to prove a fact alleged in the petition, irrespective of the question whether, when admitted, it tends to establish a right to recover or not.
    (b) Testimony which tends to dispute the facts set up by the defendant as a defense, or to avoid the legal effect of them, is admissible as against the objection that it is irrelevant.

      (c) Where the question whether a corporation has made a certain contract is in issue, proof that subsequently to the time the contract is alleged to have been made, the executive managing officers of the corporation, by declarations and conduct, recognized the existence of such a contract is admissible.
    (d) Evidence which tends to establish any part of the plaintiffs case, or to dispute any of the defenses thereto, is admissible as against the objection that it is irrelevant.
    5. The evidence sustains the verdict. No error of law sufficient to require a reversal appears in the record.
    Action for breach of contract, from city court of Moultrie— Judge McKenzie.' January 9, 1903.
    Argued March 12,
    Decided April 9, 1908.
    The facts, so far as the pleadings are concerned, are fully set forth in the prefatory statements p to the cases of Bedgood v. Tifton Ry. Co., 116 Ga. 945 (43 S. E. 257), and Butter v. Tifton Ry. Co., 121 Ga. 818 (49 S. E. 763). The present transaction is the same one involved in those eases. The petition having been adjudged good as against demurrer, in the decision last cited, the case proceeded to trial, and resulted in a verdict in favor of the plaintiffs. The defendant brings the case to this court on exceptions to the overruling of a motion for a new trial. The further facts-necessary to an understanding of the points involved will be stated in the opinion.

      Bosser & Brandon, J. II. Merrill, J. A. Wilkes, for plaintiff in error. Shipp & Kline, contra.
   Powell, J.

(After stating the foregoing facts).

The action was for unliquidated damages arising from the breach of a contract; and therefore the allowance of interest was governed by the Civil Code, §3800, which provides that “in all cases where an amount ascertained would be the damages at the time of the breach, it may be increased by the addition of legal interest from that time till the recovery.” The plaintiffs sued for a named sum, with interest from a given time alleged to be the date of the breach; and no demurrer or other objection was .filed to this method of asserting the ad damnum. The court charged the jury: “If you should find, from the evidence, in favor of the plaintiff against the defendant, I charge you that it is within your discretion whether you shall give interest on that amount, if you find a certain amount, from the time it was due up until the present time; charging that (if you give interest) you can not give more than seven per cent., taking into consideration the facts and circumstances, in arriving at the same. If you should find in favor of the plaintiff, the form of your verdict would be, We, the jury, find in favor of the plaintiff’ so many dollars.” The verdict was in the following form: “We, the jury, find for the plaintiff $6,365.02 principal, and 7 per cent, interest for 4 years and 4 months, $1,863.68 interest, — $8,128.70 total.” The plaintiff in error contends, that the verdict is illegal, because it finds interest eo nomine, and not as damages; that the charge quoted was erroneous, in that it encroached upon the discretion vested in the jury as to increasing the damages by taking interest into consideration.

Verdicts are to be upheld if capable of legal intendment, and surplusage or immaterial findings included therein may be disregarded; they will be construed in the light of the pleadings, the issues made by the evidence, and the charge of the court. So. Ry. Co. v. Oliver, 1 Ga. App. 734 (58 S. E. 244); Telfair County v. Clements, 1 Ga. App. 437 (57 S. E. 1059), (where the verdict was somewhat similar in form to the one now under consideration); Schofield v. Little, 2 Ga. App. 287 (7), (58 S. E. 666); Western & Atlantic R. Co. v. Brown, 102 Ga. 13 (29 S. E. 130); Civil Code, §5332. The reasonable intendment to be given this verdict is, that the jury found-for the plaintiffs $8,128.70 damages; and that they arrived at this amount by deciding that the amount of immediate damages flowing from the breach of the contract should be increased by an allowance of interest from the date of the filing of the suit till the'date of the verdict, and by adding it thereto so'as to make the total sum Indicated. They might have allowed interest from the time of the breach instead of the date of the filing of the suit, but in their discretion did not see fit to do so. Comparing the charge of the court on the subject with the section of the Civil Code above cited, we think that the one substantially conforms to the other. The allowance of interest as a part of the' damages given in such cases is a matter addressed to the discretion of the jury; but we think that this discretion means, not a decision by mere whim or caprice, but a sound legal discretion, determinable by the particular facts of the case. In cases where the wrong can be fully redressed without taking interest into consideration, it would be an abuse of discretion for the jury to allow it; conversed, in. those breaches of contract where monetary-loss immediately and necessarily flows to the injured party, usually “nothing less than the actual amount of the loss and the interest thereon will compensate.” Sou. Pac. Co. v. Arnett, 126 Fed. 75 (61 C. C. A. 131); Missouri Ry. Co. v. Truskett, 104 Fed. 728 (44 C. C. A. 179); Wilson v. Troy, 135 N. Y. 96 (32 N. E. 44, 18 L. R. A. 449, 31 Am. St. R. 817, and notes). Indeed, in the early case of Garrard v. Dawson, 49 Ga. 435, it is held, that “where an action was brought against warehousemen for the value of two bales of cotton entrusted to them, which they had failed to deliver on demand, it was not error in the court to charge that the plaintiff was entitled to interest on the value of the cotton from the day of the demand, as a part of his damages, and to refuse to charge that the jury might allow or withhold interest in their discretion.” In-the case at bar the judge placed no greater limitation on the discretion of the jury than does the Civil Code itself.

The plaintiffs’ books showing the shipments of lumber were properly admitted in evidence, under the rulings in Bailey v. Barnelly, 23 Ga. 582, and cit.; and Bush v. Fourcher, 3 Ga. App. 43 (2), and cit., (59 S. E. 459).

Several of the assignments of error in relation to the admission of testimony, and to instructions given and instructions refused, may be considered together, for they all turn upon the decision of the same question. In their petition the plaintiffs alleged, in substance, that in consideration of their purchasing certain timber from the Union Lumber Company, the defendant agreed that it would build a side-track to a mill the plaintiffs expected to locate on the tract of the timber; the .plaintiffs in turn promising to ship all the products of the mill over the defendant’s railroad. The defendant insists (and it seems to be so) that this contract, if made at all, was of necessity made before the plaintiffs bought the tract of timber, which, as the evidence disclosed, was on November 3, 1899. It was also alleged in the petition, that subsequently to the date named, the defendant frequently promised to build the side-track, and recognized the plaintiffs as bound to ship all their mill cut over its line of railroad, and insisted on strict performance of this part of the contract. The defendant, in addition to denying that it made the contract, and that it had ever recognized it and insisted on performance as stated above, also set up that even if such a contract was made, the plaintiffs had committed the first breach, in that they failed to ship all their mill cut over the defendant’s line and had shipped a part of it over a competing railway, and that this violation of the terms of the contract excused performance. The plaintiffs, in their testimony, admitted that they had shipped two car-loads of lumber over another railway, but said that was because of the failure of the defendant to put in the side-track, and that upon the defendant complaining that this shipment had been made, the parties agreed that thereafter the contract should be abided,— that the defendant would proceed with the laying of the siding, and the plaintiffs would give it all their business. A part of these negotiations was had with Heath, the general manager of the railroad company. It was not shown that he had explicit authority to make such agreements, but the plaintiffs contended, and introduced proof to show, that Hightower, who was the vice-president of the company, and who had unquestioned authority to act, ratified the negotiations made by Heath.

The defendant complains that the court improperly admitted evidence of the conversations and negotiations between the .plaintiffs and Heath and Hightower subsequent to November 3, 1899; the specific contention being that the plaintiffs could recover only on the contract, and that these subsequent conversations were irrelevant and tended merely to confuse the issues. These subsequent transactions having been expressly alleged in the petition, evidence thereof is admissible, irrespective of the question whether, when admitted, it tends to establish a right to recover or not. Kelly v. Strouse, 116 Ga. 872 (2), (43 S. E. 280), and cases cited. We think, however, the testimony had a distinct relevancy. In addition to denying the making of the contract, the defendant, under our system which allows contradictory defenses, pleaded a breach of the opposite party, in excuse of its non-performance of the contract, if made. These conversations and dealings of the executive officers of the defendant corporation were admissible to establish the existence of the contract in the first instance. Imboden v. Etowah Co., 70 Ga. 87; Dobbins v. Pyrolusite Co., 75 Ga. 450. Also it was admissible for the purpose of showing that the breach of contract pleaded by the defendant had been waived. A plaintiff is not required to file a replication to the answer, and is permitted, without further pleadings, to introduce proof either in denial or in avoidance of the matters set up as a defense. Civil Code, §§4995, 5067; Henry v. Peters, 5 Ga. 311. The testimony as to these subsequent promises was admissible for still another purpose. We do not think the plaintiffs were bound to rely, for a recovery, upon the establishment of a contract prior to November 3, 1899; we think that under the petition as drawn, even if the plaintiffs failed to show that there was a definite, enforceable, mutual, complete agreement between the parties in-the first instance, they could have made -a case by proving that the defendant subsequently agreed that if the plaintiffs would quit shipping by any other route and would use only the defendant’s line, the side-track should be built for them. This would have been a mutually binding contract. Further, if the original agreement, though complete in other respects, was negotiated only with Heath, and if Heath had no authority to bind the defendant, the subsequent conduct of Hightower in recognition of the contract, and his insistence upon the plaintiffs living up to it, would have been such a ratification as to bind the defendant. We have discussed the admissibility of this testimony, with this fulness as to its different aspects, for the reason that the plaintiff in error has raised these same questions in various forms; and what we have said covers the exceptions to a number of charges which were given, and to a number of requests to charge which were refused.

The record is voluminous and contains a number of other assignments of error; but we do not think that they present questions of sufficient general importance to warrant a detailed discussion of them. After a careful examination of them all, we find that none of them present any sufficient reason for reversing the judgment. The .trial judge used in his charge some inapt words and phrases; but the ineptitude was not so great as to be likely to mislead the jury or to injure either party. We have particularly investigated the sufficiency of the proof to sustain the verdict on the question of amount. Giving the testimony reasonable intendment, and even construing the testimony of the plaintiffs most strongly against themselves, we find that the verdict can be sustained for the full sum found; indeed the evidence as a whole is such that even if the verdict were somewhat larger, we could not interfere. Judgment affirmed.


text:
    998.
    BEDINGFIELD v. FIRST NATIONAL BANK.
    1. In no ease can a judge of a county court appoint a judge pro hac vice. A judge of one county court may preside for the judge of another county court, hut the selection of a judge pro hac vice must be made either by agreement of the parties or by the clerk of the county court, or by the clerk of the superior court.
    2. One can not be a judge pro hac vice de facto.
    (а) The facts, circumstances, and conditions which would reasonably lead persons, having business with an officer, to presume the incumbent to be the lawful officer and to recognize him as such, can not arise in the case of an individual- confessedly selected to try only one ease. “An officer de facto is one who has the reputation of being the officer he assumes to be, and yet is not a good officer in law.” The reputation must depend upon other acts than that in question, and a single act can not establish a general reputation for doing that act.
    (б) The law allowing the selection of a judge pro hae vice is merely a provision against the emergency which arises when a trial judge is disqualified. There is no such office as judge pro hae vice, and a de facto officer can not exist where there is no such office de jure. As a court is incorporeal and can not exist without a judge, the selection of a judge pro hac vice is a mere temporary expedient to speed the trial by preventing a hiatus in the disposition of the cause.
    3. The judgment of a court which has no jurisdiction of the case is entirely void. Where a defendant has had his day in court, neither he nor his surety''can, by illegality, attack the judgment rendered by the court having jurisdiction of the subject-matter. Where a court has jurisdiction, it is to be presumed that it had before it pleadings and evidence authorizing the judgment rendered; and if the judgment is erroneous it may be reviewed or a motion made to set it aside. Where, for the lack of a judge, there is no court having jurisdiction of the case, there is no such presumption, and all of the proceedings are null and void. A judgment void because not rendered by a court, or because rendered by a court without jurisdiction, can be attacked by illegality, because the defendant has never had his day in court. The rights of a surety follow the fortunes of the principal.
    Appeal, from Jefferson superior court — Judge Bawlings. January 13, 1908. .
    Submitted March 12,
    Decided April 9, 1908.
    The plaintiff in error excepts to the judgment of the judge of the superior court overruling his affidavit of illegality to a fi. fa. issued from the county court of Jefferson county. The case was appealed to the superior court, and the affidavit of illegality was there overruled by the judge, upon an agreed statement of facts, from which it appeared, that the defendant in error brought a suit in trover, with bail process, against one Brown, for the recovery of certain personal property alleged to be in the possession of Brown, and of the value of $500. The suit was brought and a part of the personal property was seized on November 26, 1906, and Brown entered into a replevy bond for -the eventuál condemnation money, with Bedingfield and Peterson as sureties. This bond was accepted by the officer. At the appearance term in the county court, no defense was filed by the defendant, and neither of the sureties appeared or answered, and the case was marked in default. At the trial term, in April, 1907, there was no appearance, by the defendant, nor did either of the sureties appear in person or by attorney. The judge of the county court, by reason of relationship to stockholders in the First National Bank, the plaintiff, was disqualified to preside in the ease. It was further agreed to be a fact that the judge of the county court of Jefferson county was ex-officio clerk of that court, no clerk of the county court having been appointed. It was further admitted that neither of the parties, nor their counsel, agreed or selected any attorney or other person to preside in the case; nor did the clerk of the superior court select a judge pro hac vice. The judge passed the following order: “Georgia, Jefferson County. In the county court of said county, at the April term, 1907. In the case of the First National Bank of Louisville, Ga., against Ben Brown, the same being a suit in trover, it appearing that Judge J. W. White, judge of said court, is disqualified by reason of relationship to stockholders of the First National Bank of Louisville, Ga., the plaintiff in said case, and he also being clerk of said court, it is ordered that J. K. Kinman, a member of the bar of Jefferson county, be and he is hereby appointed to preside in said case and to render up judgment therein. Let this order be spread upon the minutes of this court. [Signed] J. W. White, Judge County Court, Jefferson County.”
    Mr. Kinman, who was appointed by the judge of the county court as judge pro hac vice, it is admitted, was not the judge of a county court. He presided in accordance with the foregoing order of appointment, and, after hearing evidence, entered up judgment in the case as follows: “No defense having been filed in the above-stated case, and the plaintiff, upon the trial of the same, having proved title to the property described in the within petition and value thereof,-and having elected in open court to take a money verdict for its damage, and the defendant having given bond for the eventual condemnation money, with S. L. Peterson and N. W. Bedingfield as sureties, it is ordered and adjudged that the plaintiff recover of the defendant, Ben Brown, and of S. L. Peterson and N. W. Bedingfield as sureties on the trover bond, the principal sum of five hundred dollars, with interest from this date at seven per cent, per annum, and seven and one half dollars as costs, and let the defendant be in mercy. Judgment signed this, the 13th day of April, 1907. [Signed] J. K. Kin-man, Judge pro hac vice.” TJpon this judgment an execution issued, in accordance therewith, which was levied on the property of Bedingfield, one of the sureties. To this levy Bedingfield filed an affidavit of illegality upon the following grounds: (1) Because there is no legal judgment against this deponent, upon which said fi. fa. could issue. (2) Because no legal judgment has ever been rendered against-this defendant, upon which any fi. fa. could legally issue. (3) Because the alleged judgment upon which such fi. fa. purports to be issued was rendered and entered up by one J. K. Kinman, not being judge of said court and not being judge of any county court in this State. (4) Because the judgment is void upon which said fi. fa. is issued, and said fi: fa. is void, be-, cause said Kinman, the attorney who rendered the judgment in said case as judge pro hac vice, was not selected to preside in said case by consent of the parties to the case, or their counsel; nor was he selected or appointed by the clerk of said county court (the judge of the said court being the clerk thereof), or by the clerk of the superior court to preside in said case; and, therefore, he had' no legal power or authority to preside or to render any judgment in said case.

      Gain & Hardeman, for plaintiff in error.

      R. L. Gamble, Phillips & Phillips, contra.
   Russell, J.

(After stating the foregoing facts).

We think the judge erred in overruling the affidavit of illegality. It was admitted that the judge of the county court was disqualified, and that Mr. Kinman was not the judge of any county court in this -State. It became necessary, then, to have a judge pro. hac vice. This judge pro hac vice is only to be appointed in the manner provided by law, and any one selected to preside in the trial of a case, in the emergency created by the disqualification of the judge, must be appointed and selected in one of the modes prescribed by law. If this be not done, there is no judge; consequently no court; and, as a sequence, there can be no judgment, and the entire proceeding is a nullity. Section 4177 of the Civil Code authorizes county judges to hold county court in any county of the State having a county court. Section 4178 is as follows: “When from any cause a county judge in this State is disqualified from presiding in any case in his court, if the parties consent thereto and select any attorney practicing in the court to preside in such case, the judge shall have such consent entered upon the records of the court, and the attorney so selected shall exercise all the functions of judge in that case; and should the parties fail or refuse to agree upon counsel to preside in such case, it shall be the duty of the judge of such court to call in a judge of a county court to preside.” This code section seems, by its inclusion of all of the duties of the judge of the county court in the premises, to exclude any right upon his part to do more (in case of his own disqualification) towards selecting a judge pro hae vice than to procure, if he can, the services of a judge of another county court. This is similar to the provision of law relating to the duties of the judge of a superior court under like circumstances. He can select another judge of a superior court to try cases in which he is disqualified, either with or without the consent of the parties, but an attorney chosen to preside as judge pro hac vice must be selected either by the parties themselves, if they can agree, or, if not, by the clerk. We are clear, then, that in this case the judge of the county court, as such, could not select an attorney at law as judge pro hac vice.

The suggestion that as the county court of Jefferson county had no clerk, and as the judge was ex officio the clerk of that court, he might, as clerk, select an attorney at law as judge pro hac vice, is not only disputed by the inference to be drawn from the language of §4178 of the Civil Code, but is also expressly contradictory of the terms of §4179 of the Civil Code:- “Should the parties litigant fail or refuse to agree upon counsel to preside in such case, it shall be the duty of the clerk of said court, where there is one, and the duty of the cleric of the superior court, where there is no clerk of the county court, to select any attorney practicing in the court, to preside in such case and try the same.”

It is conceded bj learned counsel for the plaintiff in error that the judge pro hae vice was not properly appointed, and that the judge of the county court, in accordance with the provisions of §4176, or the later enactment embodied in §4178, should have procured the judge of a county court to preside in his stead, or else an attorney at law should have been selected by the clerk of the superior court; but it is insisted that the judgment was entered by a de facto judge, and that the judgment is not subject to attack by illegality.

Being satisfied that the appointment of Mr. Kinman was illegal, we come next to consider whether he was a de facto judge of the county court, in spite of the irregularity of his appointment. Can he be considered a de facto officer, in any view of the case? Mere irregularities in the qualification or in the appointment of an officer will not prevent his being a de facto officer. If he be illegally elected or appointed by one who himself has only a claim to an office, it is still possible for his acts to be recognized as valid, because he was exercising de facto the functions of an office. But to constitute one an officer de facto there must be not only facts, circumstances, or conditions which would reasonably lead persons, who have relations or business with the office, to recognize him and treat him as the lawful incumbent, and to submit to and invoke his official action without inquiry as to his title, — he must not only have the reputation of being an officer, but, above all else, there must be an office corresponding with that which he purports to hold. If there is no office, there can be no officer de facto. Lord Ellenborough, in the case of Rex v. Bedford Level, 6 East, 356, generalized Lord Holt’s definition of a steward, in Parker v. Kett, 1 Ld. Raym. 658 (“a steward de facto is no other than he who has the reputation of being such steward, and yet is not a good steward in point of law”), into the definition, which has so often been ascribed to him, that “an officer de facto is one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law.” In 8 Am. & Eng. Enc. of Law (2d ed.), 783, note 2, will be found a large number of definitions, from various jurisdictions, of what constitutes a de facto officer, in each of these jurisdictions it has been held that there must be a specific office, the duties of which the de facto officer assumes to discharge. Our Supreme Court has ’Approved Lord Ellenborough’s definition, in Hinton v. Lindsay, 20 Ga. 746. But it does not follow from this that there can he a de facto judge pro hac vice. Indeed, 'there can not be, because the statute with reference to the selection of a judge pro hac vice provides only for an emergency, — the disqualification of the judge, —and no office is created. One could not have the reputation of being a judge pro hac vice, when the very term means, judge for this turn, — only one case,- — -and there could not be facts or conditions which would lead the public to recognize and treat him as a lawful officer, because the acts which are to raise the presumption of the legality of his doings must be others than the ones in dispute. State v. Wilson, 34 N. H. 543; Goulding v. Clark, 34 N. H. 148; Hall v. Manchester, 39 N. H. 295. In any event, one incumbency of the bench for the purpose of the trial of a single case could not give him the reputation of being a judge pro hac vice, even if there were such an office. And he could not be a de facto judge of the county court, because there is already a judge.of the county court de jure; and it is well settled that there can not exist at one and the same time an officer de jure and one de facto, or even two de facto officers. If there is no such office as judge pro hac vice (and we feel certain from the nature of things there can not be such an office), there can be no de facto judge pro hac vice; and Mr. Kinman could not be de facto judge of the county court, not only because there was a judge of the court de jure, but because, at most, he. could only be considered as a substitute for the judge of the county court; and in the very ease of Hex v. Bedford Level, supra, in which Lord Ellenborough’s definition is given, it was held that a deputy can not acquire the reputation of being the principal. For the same reason a judge pro hac vice, being selected for a special occasion, can not acquire the reputation of being the judge.

Without going to the pains of citing the numerous authorities we have examined, we hold unhesitatingly that Mr. Kinman, as judge pro hac vice, can not be considered as a de facto officer. If he had been properly appointed he would not have been judge of the county court, but merely a person procured under the provisions of the statute for a special purpose to meet the emergency arising from the disqualification of the judge, and in order to preserve the court for the trial of a special case. There can be no de facto juflge pro hac vice. One chosen for that purpose must be either judge pro hae vice de jure; or he has no rights, powers, ox-authority whatsoever. As held in Rogers v. Felker, 77 Ga. 46, if a judge who is disqualified presides and renders judgment, the judgment is not void, but merely voidable. In such a case, if the judge is qualified generally, and the court of which he is the lawful judge has jurisdiction of the person of the defendant and of the subject-matter of the suit, he ought to retire from the bench, if he be disqualified; but if he does not, the judgment is not void, but voidable. In the ease of the judge pro hac vice, unless he has been selected in accordance with the statute, he has no right to go upon the bench at all, and what might be errors, subject to review in the qualified judge, are swallowed up in the greater consideration that such an incumbent' has not even the right to commit errors.

The irreconcilable conflict of authority referred to by Judge Lewis in Herrington v. State, 103 Ga. 319 (29 S. E. 931, 68 Am. St. R. 95), is upon the proposition as to whether or not the doctrine of an -officer de facto can be applied without presupposing the existence of an office de jure. As said by Justice Lewis in that case, “much respectable authority can be produced to the effect that where an office is provided for by an unconstitutional act of the legislature, the incumbent of such an office, for the sake of public policy and protection of private rights, will be recognized as an officer de facto until the unconstitutionality of the act has been judicially determined. On the other hand, there is . . perhaps a greater weight of authority, directly the reverse.” In the Herrington case the court was dealing with a purported office, alleged to have been created without even the color of legislative authority, by the commissioners of roads and revenues of Eulton County.

In the case of Norton v. Shelby County, 118 U. S. 425 (6 Sup. Ct. 1121, 30 L. ed. 178), in which Justice Field delivered the opinion of the Supreme Court of the United States, that court was dealing with an attempt to create an office by an unconstitutional act. In that case, before ruling that .“an unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed,” the court held, that “while acts of a de facto incumbent of an office lawfully created bylaw and existing are often held to be binding from reasons of public policy, the acts of a person assuming to fill and perform the duties of an office which does not exist de jure can have no validity whatever in law.”

In the present case we are not dealing with a de facto officer created under an unconstitutional act. The law making provision for judges pro hac vice has been held to be constitutional, but it does not create an office;-it merely provides against a hiatus in the office. As we have before remarked, there is no such office as judge pro hac vice, and, therefore, under the ruling in the first headnote of Herrington v. State, supra, “the law recognizes no one even as an officer de facto, who fills an alleged public office that has no existence under any constitutional provision, or by virtue of any color of legislative enactment.” If the legislature, instead of the provision made (for the selection, from time to time as the emergency may require, of a suitable person to preside in a case in which the judge is disqualified), were to designate some particular person for that purpose, or provide for the selection of one individual who, for a fixed term, should preside in all cases in which the judge might be disqualified, it would be possible, perhaps, to create the office of judge pro hac vice. And in such event it would be possible for there to be a de facto incumbent of this office. So far as we are aware, our courts have gone no further in deciding what is a good de facto officer than to hold, in Poole v. Perdue, 44 Ga. 457, 458, that one who holds the commission of the Governor to an office which the Governor, by the constitution, is authorized to fill, is at least a de facto officer; and, in Gunn v. Tackett, 67 Ga. 725, that a constable was a good de facto officer although he had not qualified by giving bond; because he had been appointed by the justice of the peace, who had authority to appoint.

The strongest contention of the learned counsel for the defendant in error is that the defendant in execution could not attack the judgment by affidavit of illegality. To sustain this proposition counsel cite: Civil Code, §4742; Rodgers v. Evans, 8 Ga. 143 (52 Am. D. 390), and citations; Mangham v. Reed, 11 Ga. 141; Brown v. Wilson, 59 Ga. 604; Greene v. Oliphant, 64 Ga. 567; Harbig v. Freund, 69 Ga. 180; Douglas v. Singer Company, 102 Ga. 560 (27 S. E. 664); So. Ry. Co. v. Daniels, 103 Ga. 541 (29 S. E. 761); Bird v. Burgsteiner, 108 Ga. 654 (34 S. E. 183); Summerlin v. Floyd, 124 Ga. 980 (53 S. E. 452); Sanford v. Bates, 99 Ga. 145 (25 S. E. 35); Hartsfield v. Morris, 89 Ga. 254 (15 S. E. 363). We concede the’proposition, as stated by the learned counsel, that after a defendant has had his day in court, he can not attack the judgment by affidavit of illegality, and that a surety on a bail-trover bond must follow the fortunes of his principal, and if the principal has had his day in court, so-has the surety. Jackson v. Guilmartin, 61 Ga. 544; Price v. Carlton, 121 Ga. 23 (48 S. E. 721); Waldrop v. Wolff, 114 Ga. 620 (40 S. E. 830). But while it is held in these cases that the hail can. not go behind the judgment or attack it by affidavit of illegality, any more than the principal can, it must conversely be held that he can attack a judgment wherever the principal may. And if the-principal has not had his day in court, either principal or surety may take advantage of that fact. In Sanford v. Bates, supra, the court did not have jurisdiction of the person, but in all of the cases in which it has been held that a judgment can not be attacked by illegality,. there was at least a court competent to deal with, the subject-matter.

In the present ease it follows, from what we have already said, that there was no court which had jurisdiction to deal with either the subject-matter or the person; and it has always been held that a judgment can be attacked by affidavit of illegality where the-court had no jurisdiction, either of the person or of the subject-matter.

The decision in Rodgers v. Evans, 8 Ga. 143 (52 Am. D. 390), cited above, while holding that upon an' affidavit of illegality to the execution the validity of the judgment can not be attacked, also holds that the judgment of a court which has no jurisdiction' of the case is entirely void. In the opinion, the latter principle was considered to be so axiomatic that no amplification of the first headnote was deemed necessary; and the court proceeds to-say, in the second division of the opinion, “but where the court has jurisdiction both of the cause and the parties, and proceeds-erroneously, the judgment, notwithstanding the error, is binding until it is vacated or reversed.”

Through all of the Georgia cases that we have examined, the cases where affidavit of illegality will lie as a remedy and those ■ where this remedy is unavailable are distinguished by the fact that in the latter class the court had jurisdiction or was competent to deal with the subject. Where this was so, illegality could not go behind the judgment. But it is recognized inferentially in many cases that an affidavit of illegality is available to bring to the attention of the court the fact that the execution issued illegally because there was no valid judgment, for the reason that the court was without jurisdiction to render it. In the present instance the so-called court was in reality no court. Its every act was a nullity, and the order upon the record itself disclosed this fact. The defendant in execution can not go behind the judgment by an affidavit of illegality when he has had his day in court, nor can his surety on a bond in bail-trover. But the surety had not had his day in-court in this case; for lack of a court the judgment was void; and illegality lies where the judgment upon which the execution issued is wholly void. Planters Bank v. Berry, 91 Ga. 264 (18 S. E. 137). See also Beall v. Sinquefield, 73 Ga. 50, in which the distinction to which we have adverted is recognized, and it is held that illegality will not lie where a judgment is merely voidable, and, inferentially, that this remedy is available where the judgment is absolutely void.

In Brantley v. Greer, 71 Ga. 11, it was held: “ Unless a judgment is void, an affidavit of illegality is not the proper mode of setting it aside. If the defects alleged to exist in a judgment amount only to irregularities, they should he corrected by a motion,etc. It may safely be asserted that the presumption as to the legality of the judgment which the law will not suffer to be attacked by illegality arises only where it is apparent that the judgment was rendered by a court of competent jurisdiction, in relation to subject-matter within such jurisdiction. Where it is apparent that the court had no jurisdiction, and especially where it appears that there was no court competent to deal with the subject-matter, the affiant may allege and prove that the execution has issued illegally against his property. With reference to a court of competent jurisdiction, the presumption is that it had before it sufficient evidence to authorize the 'award of the judgment upon which the execution was based. And this is the reason of the rule that the illegality can not go behind the judgment. Both the reason and the rule cease when it appears' that the judgment was rendered by one who had no authority to award judgment.

We think,' therefore, that the judge of the superior court erred in overruling the illegality. It should have been sustained.

Judgment reversed.