date 18th of January, 1889, requiring, among other things, the defendant to appear before the master to answer concerning his property. Other orders were also granted, which need not be specified. The defendant then gave notice of a motion for an order to revoke the order of the 18th of January, 1889, "on the ground that the judgment upon which said orders and proceedings supplemental to the execution issued therein purport to be based, is invalid, not being based on a proper and valid order for judgment; also, that said execution and judgment as entered be set aside, and be declared null and void." This motion was heard by his honor, Judge WITHERSPOON, Who, holding that the omission, above indicated, from the indorsement made by Judge WALLACE on the complaint, did not render the judgment invalid, refused the motion; and defendant appeals upon the several grounds set out in the record. Inasmuch, however, as we think that the only real question in the case is whether the omission in the indorsement on the complaint was sufficient to invalidate the judgment upon which the supplementary proceedings were based, we need not set out here, in detail, the several grounds of appeal.

It is true that section 267 of the Code of 1882 does provide that, in cases of this kind, the order for judgment "shall be indorsed upon, or attached to, the complaint;" but there is nothing to indicate that an omission to do so will render a judgment invalid. On the contrary, this provision would seem to be merely directory, and not mandatory; for it is somewhat significant that the language of the present Code is nothing like so strong as formerly Section 269 of the former Code, for which section 267 is now the substitute, as amended by the act of 1873, contained this language: "The order for judgment shall be indorsed on the complaint, and signed by the presiding judge; and no execution shall be signed, or judgment obtained by default, in any other manner than is herein provided." (Italics ours.) Now, the omission of these imperative words from the Code of 1882 is not without significance. We may also refer to the case of Genobles v. West, 23 S. C. 154; not as authoritative, however, because the judgment there was not rendered in a case to which this provision of the Code applies, but simply as the dicta of two learned judges, which are always entitled to high consideration.

But, waiving this, we think it clear that the omission in the indorsement on the complaint was a mere clerical error, manifestly made through inadvertence, and should not be allowed to affect the validity of the judgment which, undoubtedly, Judge WALLACE intended to render. This is shown by his entry on the calendar, "Judgment for plaintiffs, "and by the very terms of the indorsement itself. As is said in Freem. Judgm. § 47, cited by Judge WITHERSPOON in support of his conclusion: "The sufficiency of the writing claimed to be a judgment must at least, under the Code, be tested by its substance, rather than by its form. ** If it appears to have been intended, by some competent tribu

nal, as the determination of the rights of the parties to an action, and shows, in intelligible language, the relief granted, its claim to confidence will not be lessened by a want of technical form, nor by the absence of language commonly deemed especially appropriate to formal judicial records. This certainly would apply with as much, if not greater, force to an order for judgment as it would to the judgment itself. We do not see how, from the papers before us, there can be a shadow of doubt that Judge WALLACE, who unquestionably had jurisdiction both of the parties and the subject-matter, intended to order a judgment in favor of the plaintiffs, whom he named, against the defendant, who was also named, for the amount specified.

But, in addition to this, section 197 of the Code is conclusive; for it is there provided that "the court shall, in every stage of action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect." Now, these supplementary proceedings being a stage of the action,for, as is said by Mr. Justice McGoWAN in Mills Co. v. Walker, 19 S. C., at page 107, "the proceeding is not, technically, what is called a 'special proceeding,' but a continuation of the action in which the judgment was recovered, "—the error or defect in the order for judgment, which was one of the "proceedings "in the action, could not possibly" affect" the substantial rights of the defendant; and hence, under that express provision of the Code, the circuit judge could not have allowed the judgment to be "affected" by "such error or defect."

But, in addition to this, we see no reason why the circuit judge, under the authority of the case of Carroll v. Tomkins, 14 S. Č. 223, and the cases therein cited, might not, if it had been deemed necessary, have granted an order correcting an error of his predecessor, manifestly clerical only. See, also, Chafee v. Rainey, 21 S. C. 17. The judgment of this court is that the order appealed from be affirmed.

SIMPSON, C. J., and McGOWAN, J., con

cur.

DANIEL V. HARRIS.

(Supreme Court of Georgia. March 1, 1890.) LANDLORD AND TENANT-REMOVAL OF CROPS-DIS

TRESS.

A tenant seeking to remove from the premises any portion of the commercial crops before the rent is due, without his landlord's consent, is subject to distraint immediately, no matter what may be the purpose or intent of such removal.

(Syllabus by the Court.)

Error from superior court, Sumter county; FORT, Judge.

J. C. Matthews and Hinton & Cutts, for plaintiff in error. Jas. Dodson & Son, for defendant in error.

BLECKLEY, C. J. The distress warrant was sued out before the rent became due. It was resisted by counter-affidavit deny

ing that the tenant was seeking to remove his goods from the premises. There was evidence that he had removed and disposed of some cotton, a part of the crop produced on the premises, and evidence that he had told the landlord that he was going to carry the cotton away as fast as he could get it ready for market. This, however, was denied: the evidence upon the subject being conflicting. The sole point argued here was as to the proper construction of a portion of section 2285 of the Code, which reads thus: "The landlord shall have power to distrain for rent as soon as the same is due, or before due, if the tenant is seeking to remove his goods from the premises." It is contended that the mere fact that a tenant is seeking to remove his goods from the premises will not justify the suing out of a distress warrant before the rent is due, but that the removal contemplated must be fraudulent, or with some intent or purpose to deprive the landlord of his rent, or to hinder, obstruct, or delay him in the collection of it. We think, however, that, in the case of agricultural tenants, what the statute has in view as to commercial crops, though it may be otherwise as to ordinary property, is the mere removal, and not the purpose, of it. The statute gives the landlord a special lien upon the crops. Code, § 1977. This lien attaches to the whole of the crop, and not to a part only. Without the landlord's consent, therefore, the tenant, however free from intention to defraud or injure his landlord, has no right to remove the crop, or any part of it, from the premises. There was no error committed by the court on the trial; and, while there was conflict in the evidence, the jury settled that, and the verdict rendered, though not absolutely required, was justified. Bates v. Messer, 76 Ga. 696, (3;) Payne v. Holt, 61 Ga. 355. Judgment affirmed.

SAVANNAH, A. & M. Ry. Co. v. FORT et al. (Supreme Court of Georgia. Jan. 22, 1890.) PRELIMINARY INJUNCTION-MODIFICATION. Temporary injunction modified so as to allow the company to complete over its own land the side track already commenced, and to use the same until a final adjudication is had in the cause; this side track not touching any property of the complainants, and its construction and use being (according to the evidence) more likely to lessen than increase their annoyance or damage for the present.

(Syllabus by the Court.)

other act with a view or purpose to the location of its switch-yard or its freight or transfer yards. In the argument before this court, counsel for the company, saying that the company had already, and long before the application for injunction, permanently located its switch and freight yards, and that it had no purpose to interfere with Finn street, acquiesced in the temporary injunction as to these matters, but insisted that the injunction should not have been granted to restrain the company from completing and using the side track projected, and partly constructed, crossing Jackson street, and otherwise occupying, through its whole length, property already belonging to the company. This side track will lie further from Finn street, and from the property of the plaintiffs, than either the main line of the railway, or any of its existing side tracks. The overwhelming weight of the evidence in the record is that its construction and use will not render the existing works of the railroad more hurtful to the plaintiffs, but will tend to render them less so by shortening the time occupied in switching and drilling opposite to their premises. For this reason we think the injunction as granted should be modified so as to allow the company to complete the unfinished side track, and to make all necessary excavations and embankments on its own land for that purpose, and to use the same until a final adjudication is had in this cause, its subsequent use or non-use abiding the result. In reaching this conclusion we are to be understood as leaving all the facts, as well as the law, of the main controversy open, so that a trial on the merits, if any should be had, will be free and unembarrassed, both as to the rights and the remedies of the respective parties. Judgment modified and affirmed.

HARVEY V. EDWARDS.

(Supreme Court of Georgia. Feb. 26, 1890.) APPEAL-REVIEW.

Where there is some evidence to support the verdict, the trial juage's refusal to grant a new trial will not be disturbed on appeal.

Error from superior court, Schley county; FORT, Judge.

A distress warrant for rent in favor of M. R. Edwards and against Willis Ellison was levied on certain property. Beckey Hawey interposed a claim thereto, and appealed from a judgment against her, rendered by the magistrate to the superior court. Verdict for plaintiff. Claimant's motion for a new trial, on the ground that the verdict was contrary to law and the evidence, was overruled, and she brings

error.

W. H. McCrory, for plaintiff in error. J. R. Williams, for defendant in error.

SIMMONS, J. The jury having found for the plaintiff in this case, and there being some evidence to support the verdict, and the trial judge being satisfied therewith, we will not interfere with his discretion in refusing to grant a new trial. Judgment affirmed.

BLANDFORD, J. This was an action of debt upon the bond of Forrester as administrator de bonis non cum testamento annexo of Collier. Upon the trial, the record of a former suit between the plaintiff and Forrester was introduced in evidence, from which it appeared that the plaintiff had obtained a judgment against Forrester as such administrator, upon which judgment execution issued commanding the sheriff to cause to be made of the goods and chattels, lands and tenements, of Forrester, a certain sum of money; and upon this execution there was a return of "No property to be found." The court below held that the plaintiff was entitled to recover upon the bond of the defendant, and a judgment was accordingly awarded him.

We think this judgment was wrong. The execution sued out in the former case did not follow the judgment, and the return on that execution of "No property to be found" was not evidence of a devastavit on the part of Forrester. The execution should have followed the judgment, and should have commanded the levy to be made of the goods and chattels, lands and tenements, of Collier in the hands of Forrester, the administrator; and in that case a return of "No property to be found" would have been evidence of a devastavit. A return of "No property to be found," upon an execution against Forrester individually, is no evidence of a devastavit as to Forrester, administrator. Although he may have had in his hands goods of the deceased to be administered, yet the sheriff, under this execution, would have had no right to seize them; and, the sheriff having no right to seize such goods, his return could not establish a devastavit. Judgment reversed.

WILLIAMS et al. v. DONALSON et al. (Supreme Court of Georgia. March 10, 1890.) EXECUTION SALE-DISTRIBUTION OF PROoceeds.

A judgment on a mortgage given to W. & Co. in renewal of older mortgages to W., as a novation, is subject to the lien of prior judgments, though the original mortgages were older than such judgments.

Error from superior court, Decatur county; BOWER, Judge.

D. A. Russell and O. G. Gurley, for plaintiffs in error. Donalson & Hawes, for defendants in error.

BLANDFORD, J. This was a contest between the parties as to a fund in the sheriff's hands arising from the sale of certain

property of a common defendant. The money was awarded to Donalson et al., who represented the oldest judgments. Williams & Co. excepted, and contended that while their mortgage fi. fa. was junior in date to the judgments of Donalson et. al., yet the mortgage upon which their fi. fa. was founded was a renewal of mortgages older than those judgments. The record, however, shows that these older mortgages were made to Williams, not to Williams & Co., and that the mortgage to Williams & Co. was a novation. So we think that, under the facts in the record, the court below ruled correctly in awarding the money to the judgments of Donalson et al. Judgment affirmed.

ALLEN V. PEARCE.

(Supreme Court of Georgia. March 10, 1890.) PROMISSORY NOTES-CONSIDERATION.

Code Ga. § 1553a, makes it a penal offense to sell any fertilizer in the state without a tag or brand showing the analysis thereof. Section 2745 provides that, if the consideration for a contract "be good in part and in part void, the promise will be sustained or not, according as it is entire or severable. But, if the consideration

be illegal in whole or in part, the whole promise fails." Held, in an action on a note for the price of fertilizer, put up in bags, that the contract was entire, and, if any of the bags were not branded as required, the consideration was illegal to that extent, and the whole promise failed.

Error from superior court, Talbot county; SMITH, Judge.

Willis & Pearson and J. M. Matthews, for plaintiff in error. Martin & Worrill and John Peabody, for defendant in error.

SIMMONS, J. Pearce sued Allen on a promissory note, which note was given by Allen for 15 tons of guano. Allen pleaded that "the note was given for commercial fertilizer, the fertilizer being put up in sacks which, when sold and delivered to him, were not branded with the inspector's brand, nor did they have tags or other device of the inspector showing the analysis of the guano; and that the consideration of the contract sued on was void because the sacks containing the fertilizer did not have on them the marks or brands of an

inspector of fertilizers." The jury found for the plaintiff, and defendant moved for a new trial, which was refused by the court, and he excepted. One of the errors complained of is the charge of the court as set out in the fourth ground of the motion, which is as folows: "Ascertain from the evidence if all the sacks were tagged and branded with the analysis of the guano, and, if they were not so tagged and branded, ascertain how many were tagged and branded, if any; and, if you find that they were all tagged and branded, you will be authorized to find for the plaintiff; but if you should find that some were tagged and branded, and some were not, then you would be authorized to find for the plaintiff for as many as were tagged or brauded, and for no more." We think the court erred in giving this charge. Under the Code, § 1553a, it is made a penal offense for any manufacturer, dealer, or other person to sell any fertilizer in this state with

out having a brand, tag, or such other device as the commissioner of agriculture may require, branded on the bag or barrel containing the same, which shall show the analysis thereof. If the fertilizer is sold without complying with this requirement of law, the contract is illegal and void. The contract sued on in this case was for 15 tons of guano. It was an entire contract. Therefore, if any of the bags of guano in the 15 tons had not been branded and tagged according to law, the consideration of the note sued on was illegal in part, and the whole promise failed. Code, § 2745, says: "If the consideration be good in part and void in part, the promise will be sustained or not, according as it is entire or severable, as hereinafter prescribed; but, if the consideration be illegal in whole or in part, the whole promise fails." This being an entire contract, it could not be severed so as to authorize a recovery of that part of the guano which was branded; and, therefore, if any part of the consideration was illegal, under the section of the Code above cited, the whole promise would fail. If the suit had been an account for so many tons of guano, then the contract would have been severable, and the plaintiff could have recovered for that part of the guano which had been branded, and therefore had a good consideration, while the defendant could have defeated a recovery for that part of the guano which had not been branded, and which made the consideration illegal. Judgment reversed.

Error from superior court, Mitchell county; BOWER. Judge.

Isaac A. Bush, for plaintiff in error. D. H. Pope, for defendants in error.

BLANDFORD, J. This was an action brought by the plaintiff in error against the defendants in error upon an account. A verdict was had for the defendants, and the plaintiff moved for a new trial upon several grounds, one of which was as follows: (4) Because the court erred in charging the jury that "if the plaintiff fails to make out his case, or if you have any doubt as to whether the plaintiff has made out his case fully, the defendant should have a verdict, because it is the plaintiff's duty to make out his case before he is entitled to recover. We think this charge was error, as it placed a higher duty upon the plaintiff than the law imposes. The plaintiff is required to make out his case by a preponderance of the evidence; that is to say, the evidence should be so strong as to satisfy the jury that the plaintiff is entitled to recover. The rule is that the jury should be satisfied, from all the evidence in the case, that the plaintiff is entitled to recover, not that the

defendant would be entitled to recover if the jury should have any doubt as to whether the plaintiff made out his case or not. The principle given in charge by the court in this case was stronger than the rule applicable to a criminal case as applied to the state, which is that the state should show beyond a reasonable doubt. This is the only error we find in the charge of the court, but, owing to the closeness of the facts of the case, we feel that the judgment of the court below should be reversed upon this ground. Judgment reversed.

THOMAS V. STATE.

(Supreme Court of Georgia. March 10, 1890.) MURDER-CONFESSIONS-EVIDENCE-INSTRUCTIONS.

1. On a trial for murder, evidence as to a confession is admissible, when the question whether the confession was voluntary is left to the jury, under proper instructions.

2. A request to arge that, if the jury have any reasonable doubt as to whether or not certain confessions were voluntary, they must reject them, is properly refused; and a charge in lieu thereof, leaving it to the jury to decide whether, from all the evidence, the confessions were voluntary is correct.

3. An exception to the entire charge of the trial court cannot be considered by the supreme court.

Error from superior court, Early county; CLARKE, Judge.

Hugh Henderson and R. H. Powell, for plaintiff in error. J. W. Griggs, Sol. Gen., for the State.

SIMMONS, J. Albert Thomas was indicted, tried, and convicted of the murder of his wife. He made a motion for a new trial upon 12 grounds, which was overruled by the court, and he excepted. We deem it unnecessary to deal with these grounds seriatim.

1. In regard to the first and second grounds of the original motion, we think it is sufficient to say that we have carefully read and considered every word of the evidence sent up in this record, and we believe the evidence was sufficient to authorize the verdict of the jury.

2. The first six grounds of the amended motion complain of certain charges of the court, set out therein, as being erroneous. We do not think the charges complained of, when taken in connection with the whole charge, contain any such material error as would authorize us to grant a new trial in this case. The whole charge was a fair, full, and able exposition of the law of murder, and presented the issues fairly to the jury.

3. The seventh ground of the amended motion complains that the court erred in refusing, "as requested by defendant, that if the jury had any reasonable doubts as to whether or not the confessions were voluntarily made, they must reject them." The eighth ground of the amended motion complains that, in lieu of defendant's request to charge, the court gave the following: "Instead of that, I charge you, gentlemen of the jury, that you are honestly to conclude, under the evidence before you, whether these confessions were freely and fairly made. If they were, take them into your consideration; if not, reject them