of the sufficiency of the security, the form | and effect of that order. If that was such a of the undertaking to be according to law, final order as authorized the entry of judgor the rule of court on that subject, if there ment, then it is quite clear that no succeedbe no law." Then we have as rule 10 of ing circuit judge would have the power the circuit court rules now of force the either to rescind or modify it. That it was same provisions as those contained in rule such a final order is conclusively shown by 74 of the old court. It thus appears that authoritative decisions in this state. In both the legislature and the courts have McCollum v. Massey, 2 Bailey, 606, it was deemed it necessary to prescribe a positive held that "an order for security for costs rule as to the manner in which security for by a given day, and, if the requisition is not costs shall be given, the statute expressly complied with, that the plaintiffs be nonrequiring that the clerk "shall witness the suited, is final after the expiration of the signature of the surety, and shall, in the time limited. Until then it may be modifirst instance, judge of the sufficiency of the fied in any shape by any judge; but, if the security," leaving the form of the under-order is not complied with, the defendant taking to be prescribed by a rule of court may sign judgment of nonsuit, and after until the legislature sees fit to prescribe that it is clear that the case is out of court, such form, which they have not yet done. and no judge possesses the power to reFrom this review of the law upon the sub-store it to its former status." This doctrine ject we do not see by what authority this has been exactly recognized in Fonville v. court can undertake to dispense with any Richey, 2 Rich. Law, 10, where EVANS, of the requirements thus positively exacted, J., used this language: "When the 1st of manifestly for the purpose of avoiding just August was passed, [the time limited for such controversies as the present. But if complying with the order,] without secuthere could be any doubt upon the subject rity for costs being put in, the plaintiff was that doubt is effectually dispelled by the out of court, and judgment of nonsuit decision of the former court of appeals in might have been entered against him." To the case of Willis v. Potter, 9 Rich. Law, the same effect see Burke v. Dillingham, 8 411, the authority of which has been dis- Rich. Law, 256; McKellar v. Parker, 29 S. tinctly recognized by the present court in C. 237, 7 S. E. Rep. 295, and Bomar v. Railthe case of Bomar v. Railroad Co., supra.road Co., supra. The case McMillan v. McIn that case, as in this, the undertaking for Call, 2 S. C. 390, relied on by counsel for apcosts had been witnessed by the attorney pellant, was decided by a divided court, for plaintiff, but not by the clerk, and this and is so wholly at variance both with was held to be no compliance, not even a previous and subsequent decisions as to substantial compliance, with the order re-render it a very unsafe guide. The case of quiring security for costs, and the order of Williams v. Connor, 14 S. C. 621, also relied nonsuit was affirmed. In that case, MUN-on by appellant, is not in point, for as was RO, J., in delivering the opinion of the said in Bomar's Case, supra, "there the orcourt, after adverting to the provision of der requiring security for costs imposed no the statute requiring that the clerk shall penalty for non-compliance with its terms. witness the signature of the surety, and It did not provide, as here, that the plainshall, in the first instance, judge of the suf-tiffs, on failing to comply, should be nonficiency of the security, and to the declara-suited. It did not authorize the entry of a tion of the rule of the court that no other judgment, and was not, therefore, final in form than that prescribed shall be deemed its character." Upon that ground alone sufficient, said "there is not the slightest that decision turned, and hence it is not appretense for saying that the entry of security plicable in a case like this, where the origfor costs in this case was 'a substantial inal order, requiring security for costs to compliance with the law"" adding, "that be entered within a specified time, distinctly unless an order requiring a party to enter provided that a failure to comply within security for costs be strictly complied with that time should entitle the defendant to in conformity with the requirements of the enter judgment of nonsuit, so that the only section of the act, and the rule of court re-question for Judge NORTON to determine in ferred to, the party neglecting to comply this case was whether the order of Judge must expect to take the consequences.' ALDRICH had been complied with within the That case, in its facts, is so much like the prescribed time. If it had not, then the orone under consideration as to furnish con-der of nonsuit followed necessarily, and he clusive authority upon the point now under discussion. The cases of Furnan_v. Harman, 2 McCord, 442, and Fenet v. Wilson, 3 Hill, (S. C.) 340, cited by counsel for appellant, having been decided prior to the enactment of the statute and the adoption of the rule of court, above referred to, are not applicable. It is clear, therefore, that the undertaking, as originally furnished, was not a compliance with the order requiring security for costs, inasmuch as the clerk did not witness the signature of the surety, and did not, in the first instance, approve the sufficiency of the security.

2. Our next inquiry is whether the defects in the undertaking as originally furnished could be supplied after the time limited by the order of Judge ALDRICH for giving the security. This depends upon the nature

had no power to consider any other question. He had no discretion in the matter. He could only consider the question of fact, what was done towards complying with the order of Judge ALDRICH, and the question of law, whether that which was done was a legal compliance with the order. Indeed, as was said in Bomar's Case, “we do not see why a defendant could not at once, upon the expiration of the time limited, enter judgment of nonsuit without any further order to that effect; though, perhaps, the safer and better practice would be to obtain such further order, finally adjudicating the fact that the security for costs had not been entered within the time allowed for that purpose." That, manifestly, was the opinion of that great judge, EVANS, as is shown by the quotation from

Fonville v. Richey, supra. Speaking of that case, it may be well to mention that, notwithstanding this doctrine, it was held in that case that a defendant, by pleading to the declaration after the expiration of the time limited for entering security for costs, would waive the right to enter judgment of nonsuit, for in the case now under consideration the point seems to have been made in the court below, though not in this court, that the defendant had waived his right to a nonsuit-First, by joining with plaintiff in taking testimony before the clerk, under the act for that purpose; second, by uniting with plaintiff's attorney in examining a witness by commission. But, as the examination before the clerk took place before the order of Judge ALDRICH was passed, and as the attorneys for defendants, when they put in their cross-in-out of citizenship. Conner v. Elliott, 18 terrogatories, did so under protest, expressly reserving their right to insist that the plaintiff was out of court, it is very manifest that there was no waiver in this case, and it is probably for this reason that the counsel for appellant makes no such point in this court.

3. As to the third question, we think it is clear from what has already been said, that the circuit judge had no discretion to relieve the plaintiff from his omission to comply with the order of his predecessor, Judge ALDRICH.

be entitled to all privileges and immunities of the citizens in the several states;" and the argument is that any provision which exacts of a citizen of another state, as a condition precedent to his maintaining an action in the courts of this state, any bur den not exacted from a citizen of this state, is discriminating legislation in favor of the one and against the other, which it was the design of the section quoted to prohibit. Paul v. Virginia, 8 Wall. 180. It will be observed that by the express terms of the constitution, the purpose of the section under consideration is to secure to citizens of one state the same privileges and immunities as are enjoyed by citizens of other states, and the supreme court of the United States has held that the privileges and immunities thus secured are those only which grow How.591. As was said by Mr. Justice MILLER, in delivering the opinion of the court in the Slaughter-House Cases, 16 Wall. 76, adopting the language of Mr. Justice WASHINGTON in Corfield v. Coryell, 4 Wash. C. C. 371: "We feel no hesitation in confirming these expressions to those privileges and immunities which are in their nature fundamental,"-rights belonging to the individual as a citizen of the state. Now, the provisions of our statute and rule of court make no discrimination against citizens of another state, as such. They do not deny The only remaining inquiry is as to the to the citizens of another state the right to constitutionality of the act and rule of maintain an action in the courts of this court, requiring a non-resident plaintiff to state upon the same terms as a citizen of enter security for the costs of the action. this state may do, because he is a citizen of We might, as we did in Bomar's Case, supra, another state. The provisions relate only decline to consider this question, upon the to residence, and not to citizenship, which ground that it is made too late. The or- are entirely different things. As was said der of Judge ALDRICH, not having been ex- by Mr. Justice GRIER in Parker v. Overman, cepted to or appealed from, must be re- 18 How. 137: "Citizenship and residence are garded as finally adjudicating the question not synonymous terms," or as was said by of the defendant's right to demand security Mr. Justice HARLAN in Robertson v. Cease, for costs in this case. As between the par- 97 U. S. 648: "Citizenship and residence, as ties, it is the law of this case, and, whether often declared by this court, are not synonyright or wrong, cannot now be properly mous terms." To same effect see Grace v. considered, inasmuch as no question of ju- Insurance Co., 109 U. S. 278, 3 Sup. Ct. Rep. risdiction is involved, for it is not and can- 207, and Menard v. Goggan, 121 U. S. 253, 7 not be questioned that Judge ALDRICH had Sup. Ct. Rep. 873. Having thus shown that jurisdiction to determine the question pre- citizenship and residence are regarded by sented to him. But, as this is an important the tribunal of last resort, in all questions question, we will ex gratia give our views involving the construction of the constituupon the subject without attempting any-tion of the United States, as distinct and difthing like an elaborate discussion of it. Al- ferent things, it does not seem to us that the though orders requiring security for costs provisions of our statute and rule of court have been very frequently passed, we have in respect to the requirement of security for not been cited to a single decision as to the costs in certain cases are in conflict with constitutional question now presented, nor the clause of the constitution above quoted. have we been able to find one. Indeed, it is The security for costs is required of a party, a little singular that, except Bomar's Case, not because he is a citizen of another state, supra, we have been able to find but one but only because he is a non-resident of this single case, (Furnan v. Harman, 2 McCord, state. The requirement would apply as 442) in which the question has even been well to a citizen of this state, who was a suggested; and in that case the court, rest- non-resident at the time, as it would to a ing its decision upon another ground, makes citizen of another state not residing here; no allusion to the constitutional question. and so, on the other hand, if a citizen of anWhile this fact affords strong evidence of other state is residing here at the time, he the constitutionality of the law in question, could no more be required to enter security yet it is not conclusive, and therefore we for costs than a citizen of this state under must look further into the question. The like circumstances. The judgment of this appellant rests his position upon the second court is that the orders appealed from be section of the fourth article of the constitu- affirmed. tion of the United States, which reads as follows: "The citizens of each state shall

SIMPSON, C. J., and MCGOWAN, J., concur.

AMERICAN FREEHOLD LAND MORT. Co. v. | tions for trains that may be due, and with

CANDLER.

(Supreme Court of Georgia. Nov. 30, 1887.) PER CURIAM. The judge's certificate to the bill of exceptions, in the form prescribed by section 4252 of the Code, omitted the words "is true" in the first line. The bill of exceptions was therefore dismissed because not properly certified.

GEORGIA RAILROAD & BANKING Co. v.
MOON.

(Supreme Court of Georgia. Dec. 12, 1887.) PERCURIAM. 1. Where, upon a bill in equity for the recovery of land and an accounting for rents, issues, and profits thereof to be made by an executrix of an estate and the heirs of the decedent, a verdict was found in favor of the complainant, but requiring it to pay to the estate a certain sum of money, whereupon the complainant moved for a new trial, which was refused, and it excepted, but the bill of exceptions was not served upon one of the substantial defendants, this was a fatal defect, and the writ of error must be dismissed.

2. Such a defect could not be cured by an amendment making such defendant in the court below a party plaintiff in error on motion, especially where her counsel objected in open court.

SMITH V. CENTRAL RAILROAD & BANKING Co. (Supreme Court of Georgia. Sept. 23, 1889.) INJURY TO PERSON ON RAILROAD TRACK-NONSUIT. 1. After the supreme court, upon review of both law and facts, has held that there can be no recovery because of the gross negligence of the plaintiff in exposing himself to danger, and in failing to avoid the consequences, it is not error for the superior court on a second trial to award a nonsuit; the evidence for the plaintiff being precisely the same as that submitted by him on the former trial.

out listening attentively and anxiously for the roar and rattle of machinery, as well as the sound of bell or whistle, is gross negligence;" and that the evidence did not warrant the verdict. A new trial was had, when the same evidence was submitted by the plaintiff on which he had previously sought and obtained a verdict; and the court, properly respecting the decision which we had rendered touching the insufficiency of that evidence, granted a nonsuit; and this judgment of nonsuit we are now called upon to reverse.

1. Had we not, by holding up the case for more thorough and elaborate treatment, found leisure for studying it a second time in all its details, we might very well have disposed of it by a simple reference to the report and opinion in 78 Ga. 694, 3S. E. Rep. 397. The necessary logical outcome of our previous ruling was a defeat of the plaintiff on a second trial, provided his evidence was the same as on the first. The court may not have been obliged by law to grant the motion to nonsuit, but there can be no reasonable doubt that the presiding judge was authorized to do so, for he had before him a solemn decision of this court holding that a recovery upon that evidence was not sustainable. Independently of our decision, it was in the power of the court to grant the nonsuit, though to grant it may not have been obligatory. Tison v. Yawn, 15 Ga. 491; Cook v. Railroad Co., 69 Ga. 619; Bell v. Railroad Co., 70 Ga. 566; Donaldson v. Railway Co., 21 Minn. 294; Rothe v. Railroad Co., 21 Wis. 258; O'Donnell v. Railroad Co., 8 Cent. Law J. 414.

2. But our further study of the case prepares us to deal with it again de novo, and we do so without committing ourselves, however, to repeat a like superfluous treatment of any case hereafter. Smith was a man 33 years of age, residing in or near Jonesboro. For a period of 15 years he had clerked in a store in that town, his employment as clerk ceasing about a year before he was hurt. He thus had opportunity to be well acquainted with the locality, and there is no intimation that he was not fa

2. The case of Railroad, etc., Co. v. Smith, 78 Ga. 694, 3 S. E. Rep. 397, again considered with reference to the plaintiff's failure to shun the consequences of defendant's negligence, and nonsuit up-miliar with it, or that he was deficient in

on that ground sustained.
(Syllabus by the Court.)

Error from superior court, Clayton county; R. H. CLARK, Judge.

Stewart & Hodnett, J. H. Spence, and R. T. Dorsey, for plaintiff in error. W. L. Watterson and Hall & Hammond, for defendant in error.

any of his faculties or senses. Shortly before daylight, on February 7, 1885, he walked from a street crossing in the town of Jonesboro upon the railroad track, for the purpose of going about 200 yards down the track to a house where he had business. He had proceeded 65 or 70 yards when the train, coming up from behind, struck him and inflicted a serious injury to his person. BLECKLEY, C.J. The former review of this He was walking in the middle of the track, case (Railroad, etc., Co. v. Smith, 78 Ga. 694, 3 and the first he knew of the train it was S. E. Rep. 397) was based upon the refusal right at him. He made a break to get off, of a new trial which was applied for by the but was too late. He could not get out of company, Smith having obtained a verdict the way. He testified as his own witness, for $4,800 damages. The motion for a new but gave no reason or explanation, and trial was predicated, not alone upon ques-none appeared from any other testimony, tions of law ruled upon by the court in the as to why he did not listen or look, or as to progress of the trial, but upon the insuffi- what was occupying his attention, or as to ciency of the evidence to warrant a recov- there being anything visible or tangible ery. Passing upon the whole case this court which could have occupied it. He introheld that, "as matter of fact, to walk along duced several other witnesses, one of whom the middle of a railroad track between cross-stated that it was a cold morning, and that ings when it is dark, and without knowing the noise of the train could be heard a long and remembering whether a train is due or way off; another stated that he heard it a not, and without looking in both direc- quarter of a mile; another that he heard it

while in that condition was injured, and did not recover consciousness until some time afterwards. Vickers v. Railroad Co., 64 Ga. 306, was the case of a child; Fraser v. Railroad Co., 75 Ga. 222, was the case of a woman; in both there were special circumstances rendering the question of diligence somewhat doubtful. They were very weak cases (and so pronounced) for submission to a jury, but the special facts made it proper to give them that direction. Railroad Co. v. Wyly, 65 Ga. 120, involved the question of prudence in attempting to pass over a street crossing with a dray, and the report states expressly that the evidence was conflicting. The cases of Railroad Co. v. Freeman, 66 Ga. 170; Cook v. Railroad, 69 Ga. 619; Railroad v. Pittman, 73 Ga. 325; Redding v. Railroad, 74 Ga. 385,-were cases in which the injured persons were engaged in the performance of duties as employes,duties calculated more or less to divert their attention from the causes of danger. In Railroad Co. v. Carr, 73 Ga. 557, there was no intrusion upon the railroad track, and no cause to apprehend the particular danger which produced the disaster, namely, the blowing of the locomotive whistle, until it was too late to shun it. So it is stated in the opinion, (page 560.) In Railroad Co. v. Hoover, 74 Ga. 429, the injury occurred at a public crossing, and a whistle was blown on another railroad, which attracted attention, and perhaps caused mistake. There was also a ditch, which was mentioned by the court as an obstacle to escape, in discussing the plaintiff's diligence. In Railroad Co. v. Williams, Id. 723, and Railroad Co. v. Meigs, Id. 857, other trains were near, and the injured person's attention might have been directed to them, and thus withdrawn from the danger that threatened. In Jackson v. Railroad Co., 77 Ga. 82, in which the injury resulted from the

half a mile above the depot, and all the way | gence whatever upon cattle and horses. In through town; another that he heard it Hankerson v. Railroad Co., 59 Ga. 593, the three-quarters of a mile before it got to the plaintiff suddenly became unconscious, and crossing. All concurred that the speed of the train was very high, some estimating it as high as 40 miles, and one at 45 miles, an hour; none of them at less than 25 miles an hour. The house to which the plaintiff was going could have been reached by a good road running down on one side of the railroad, and by another, not so good, on the opposite side. In addition to these ways of access, there was, on each border of the track upon which he walked, a smooth way; that on one side being, by actual measurement, 7, and that on the other 10, feet wide. The train was the regular 5 o'clock passenger train, and was that morning on its schedule time. It is beyond dispute that the railroad company was negligent. It failed to give the signals, to check the train at public crossings, and was running at a speed altogether too high. Enough, and more than enough, appears to fix liability upon the company, if only its negligence were involved. But the evidence makes the plaintiff's negligence quite as apparent as that of the company; not only so, but it shows, in the fullest and clearest light, that by the use of ordinary care he could have avoided the consequences to himself of the company's negligence; and, that being so, the Code (section 2972) declares, in express terms, that he is not entitled to recover. This rule of law it is that bars him, and renders a recovery impossible. It is idle to try to evade the rule by dwelling upon the negligence of the company, for, unless there is negligence of the company which would otherwise render it liable, the rule we are considering would have no place in the law. It is only where there is negligence, the consequences of which are to be shunned, that the plaintiff is charged with the duty of shunning them, if he can do so by the exercise of ordinary care. His failure in this respect does not stop with reducing the amount of his dam-breaking of something connected with a derages, but defeats a recovery altogether. Railroad Co. v. Bloomingdale, 74 Ga. | 604, and cases cited in the able opinion of BRANHAM, J. Nor is this mere Georgia law dependent on a local statute, but the principle prevails elsewhere. Railroad Co. v. Hetherington, 83 Ill. 510; Railroad Co. v. Houston, 95 U. S. 697; Donaldson v. Railroad Co., 21 Minn. 293; Harty v. Railroad Co., 42 N. Y. 468; O'Donnell v. Railroad Co., 8 Cent. Law J. 414; 2 Shear. & R. Neg. §§ 480-walked on either side of it; or why, being 482; 1 Thomp. Neg. 449 et seq., notes. In all the cases cited by the able and zealous counsel for the plaintiff there were complicated facts, or else some explanation, either furnished or suggested by the evidence, which might serve to account, in whole or in part, for the apparent failure by the party injured to protect himself; something from which the jury might by possibility infer that the attention was naturally and justifiably withdrawn for the moment from the danger or the cause of danger. We except, of course, the two cases of Railroad Co. v. Main, 64 Ga. 649, and Same v. Jones, 65 Ga. 631; for these were not cases of injury to the person, but to animals. In them no question of diligence on the part of the owners arose, and the law lays no duty of dili

rick, the plaintiff acted under orders, merely yielding his own apprehensions, founded on report, to the assurance of the person in charge of the work. The present is distinguishable from all these cases; for the plaintiff, although a witness himself, and though in full possession of his faculties, and recollecting all that transpired, gives no hint of any reason why he walked upon the track when he might easily and safely have

upon it, he exercised no diligence whatever in listening, looking for, or thinking about, the train. He does not pretend ignorance that it was train time, or suggest any mistake or misapprehension on the subject. He testifies simply to the physical facts, and there leaves the matter. From these facts no enlightened, unbiased jury could rightly draw any inference other than that he was grossly negligent, and that, by the exercise of any reasonable diligence whatever, he could, and should, have avoided injury. When it would be impossible for a jury rightly to arrive at but one conclusion, the court is not bound to take the opinion of a jury, even upon a question of negligence. When they are consulted, they are the sole and exclusive judges, as has been held in

many cases, notably in Railroad Co. v. order. This amendment was demurred to Howard, 79 Ga. 44,3 S. E. Rep. 426, and Kil- upon the ground that it was a new and dislian v. Railroad Co., 79 Ga. 236, 4 S. E. Rep. tinct cause of action. The court sustained 165. But this rule does not mean that the the demurrer, and the amendment was recourt cannot adjudicate, as a question of jected, and this ruling is excepted to, and law, on a motion for a nonsuit, that there constitutes one of the errors complained of is nothing for the jury to try. In adjudi- in this case. Section 3480 of the Code procating motions for nonsuit, a court must vides that no amendment adding a new and necessarily have the same power over ques- distinct cause of action shall be allowed, tions of negligence as even other questions unless expressly provided for by law. The of fact. Otherwise, cases of this character original declaration was brought by the would be so exceptional that they would plaintiff for damages done to the plaintiff's have to be submitted to a jury, however de- property by the defendant, and was a good ficient the evidence might be. The law of and sufficient declaration, and, upon proper nonsuit, as to them, would be a nullity. proof, the plaintiff could have recovered thereon. But the amendment offered and rejected by the court seeks to recover from the defendant by virtue of a statute of this state, (Code, § 2084,) which statute provides that, "when there are several connecting railroads under different companies, and the goods are intended to be transported over more than one railroad, each company

We have at least done this case full justice in giving it patient and protracted consideration, and, with full confidence in the correctness of our conclusion, we leave it where the judgment of the court below placed it. Judgment affirmed.

EXPOSITION COTTON MILLS V. WESTERN & shall be responsible only to its own termi

A. R. Co.

(Supreme Court of Georgia. Oct. 9, 1889.) CARRIERS-PLEADING-AMendment-NONSUIT.

nus, and until delivery to the connecting road. The last company which has received the goods as 'in good order' [the words 'in good order,' it will be observed, being in 1. A declaration against a railroad company quotation marks] shall be responsible to for damage to machinery in transit, caused by the the consignee for any damage, open or connegligence of defendant's agents, states a cause of action at common law, and, under Code Ga. § 3480, cealed, done to the goods, and such comproviding that no amendment adding a new cause panies shall settle among themselves the of action shall be allowed unless expressly provid-question of ultimate liability." The liabiled by law, cannot be amended by adding an aver-ity of this company, according to this ment that defendant received the machinery from amendment, arises alone by virtue of this a connecting road "in good order," so as to allege statute. The original declaration showed a statutory liability under Code Ga. § 2084, provid- the liability of the company to be a commoning that, where there are several connecting rail-law liability; and now it is proposed, by roads under different companies, the last company which has received the goods as 'in good order shall be responsible to the consignee for any damages."

2. The demurrer to plaintiff's amended declaration having been sustained, it was error to direct a verdict for defendant, and enter judgment thereon, as there should only have been a judgment of

nonsuit.

Error from city court of Atlanta; VAN EPPS, Judge.

Action by Exposition Cotton Mills against the Western & Atlantic Railroad Company. For former report, see 7 S. E. Rep. 916.

B. F. Abbott, for plaintiff in error. Julius L. Brown, for defendant in error.

the introduction of this amendment, to sue the company upon a statutory liability. We are therefore of the opinion that this amendment introduced a new and distinct cause of action from that embraced in the original declaration, which we have seen, under the Code, cannot be allowed in this state. See the case of Parmelee v. Railway Co., 78 Ga. 239, 2 S. E. Rep. 686.

2. The next error assigned is the decision and judgment of the court in directing a verdict for the defendant and judgment thereon. We think this was error. As the case then stood, the court should have awarded a nonsuit. The plaintiff admitted that the damage to the property was done on a line of road belonging to another company, before it was received by the defendant company. So we affirm the judgment, with direction to the court below to cause the verdict and judgment to be set aside, and enter a judgment of nonsuit in place thereof.

HOBBY V. BUNCH.
BUNCH V. HOBBY.

(Supreme Court of Georgia. Sept. 23, 1889.) EJECTMENT - PLEADING -AMENDMENT- - MORTGA

BLANDFORD, J. 1. The plaintiff brought his action against the defendant, in which he alleged that he had sustained certain damages to machinery by reason of the carelessness and negligence of the agents and servants of the defendant. When this case was here before at the October term, 1888, it was then held (81 Ga. 522, 7 S. E. Rep. 916) that the evidence offered by the defendant, to the effect that the damage done to the plaintiff's property occurred upon a connecting line of railroad before the same had been received by the defendant, was admissible as a defense to the action; there being 1. In ejectment, no recovery can be had upon no allegation in the declaration at that time the title of a person from whom no demise is laid that the defendant had received the prop-in the declaration. erty as in good order. The case being reversed, and coming on for another trial before the court below, the plaintiff offered an amendment to the declaration to the effect that the defendant had received the property from a connecting road as in good v.10s.E.no.5-8

GES-FORECLOSURE-JUDGMENT.

2. A sheriff acquires no title to land by levying upon it and selling it; and, if he did, his official deed, made in pursuance of such sale, would pass his title to the purchaser.

3. No recovery can be had upon the demise of a person who had conveyed away his whole title before the action was brought.