4. A declaration in ejectment, setting out demises severally from two persons, is not amendable by ingrafting upon one of these demises an equitable claim for money in favor of a third person against the defendants. The new matter is not germane to the original cause of action, either as to parties or the subject-matter. 5. A recital of service made in a judgment foreclosing a mortgage upon realty, if silent as to the mode of service, is to be read in connection with the sheriff's return; and, where the return sets out that the service was by leaving a copy at the defendant's residence, that mode, and no other, is the one shown by the record or judgment roll, the whole of which must be taken together. Such mode being virtually no service, the judgment of foreclosure is void for lack of jurisdiction in the court to render it, and a purchaser under it is not protected. 6. However illegal the consideration of a promissory note may be, and whatsoever waivers of defenses it may contain, it is too late to urge defenses, either directly or collaterally, after final judgment has been recovered, that judgment being conclusive against any and all defenses which the debtor could have made, in the exercise of due diligence. (Syllabus by the Court.) Error from superior court, Columbia county; RONEY, Judge. F. H. & W. K. Miller, for plaintiff. Salem Dutcher, for defendant. 4. The refusal of the court to allow the proposed equitable matter to be ingrafted upon the action of ejectment by amendment is conclusively justified by the state of the pleadings as they stood when the amendment was offered. The proposed amendment was entirely too remote from the original cause of action, and the parties thereto, to be germane to the controversy set out in the declaration. If the administrator of Caswell 'has any right to recover from the Bunches money paid by his intestate for their benefit, but not at their request, or to be subrogated to the rights of Hobby as plaintiff in fi. fa., let him bring a direct action therefor, and not present this claim as a mere weld on an action of ejectment brought to recover the land upon demises from other persons to John Doe. We think the two causes of action are wholly separate and distinct, not only as to subject-matter, but as to the parties mentioned in the pleadings. 5. What we have said is quite sufficient to dispose of the bill of exceptions brought by the plaintiff; but as another question of considerable interest was argued, and as we have investigated it laboriously and somewhat thoroughly, we will express our opinBLECKLEY, C. J. 1. As there was no de-ion upon it. That question is whether the mise in the declaration from Caswell, his heirs or administrator, there could be no recovery by the plaintiff below on his title. Therefore all contest over his purchase at either of the sheriff's sales was irrelevant and nugatory. Showing title in Caswell would not tend to support the action, but would be the certain defeat of it; since it would negative the right of all other persons, save his heirs or legal representatives, to demise the premises to John Doe. 2. It surely cannot be necessary to enter into any course of reasoning, or cite authority, to establish the proposition that no recovery can be had in ejectment on a demise from the sheriff who has seized land, and sold it, by virtue of judgments and writs of fieri facias against another per son. The sheriff acquires no title to land by levying upon it; and there is no evidence in the record that this sheriff ever acquired or had title otherwise. But, suppose he obtained title by levying upon the land, he sold twice, and made two deeds to Caswell, and both those deeds were introduced in evidence by the plaintiff. After this, how could it be imagined that a recovery could be had upon a demise from the sheriff? 3. There could be no recovery on the demise from Hobby, trustee, because the deed from him to Mrs. Bunch and her children passed title out of him, whether Mrs. Bunch alone acquired it, or whether it passed to her and her children jointly as tenants in common. We think, however, as her children were in being at the time the deed was executed, that she took only an undivided share, and that each of them took one share also. Ewing v. Shropshire, 80 Ga. 374, 7 S. E. Rep. 554. So far, therefore, from failing to recover as much land as the plaintiff was entitled to, the recovery, being for oneeighth of the premises, was more than the state of the pleadings, and the evidence under them, warranted. In strict law, nothing whatever was recoverable upon any demise, or all the demises, in the declaration. judgment foreclosing the mortgage made by Mrs. Bunch to Hobby, trustee, was or was not void as against Caswell, who purchased the property at a sheriff's sale, made under and by virtue of an execution founded on the judgment. The judgment of foreclosure recites service of the rule nisi in these terms: "And it appearing that a copy of said rule nisi has been served on said defendant three months before the term of this court, and that said defendant has shown no cause to the contrary, and still neglects and refuses to pay the amount due on said mortgage, it is therefore adjudged by the court that the equity of redemption in and to said mortgaged premises be, and the same is hereby, barred and forever foreclosed. And it is further ordered and adjudged that said plaintiff do recover,"etc. The sheriff's return of service upon the rule nisi to foreclose the mortgage is in these words: "Served a copy of the within rule," etc., "upon the defendant, Mrs. M. A. Bunch, by leaving same at her residence, December 21st, 1883. E. J. Ivy, D. Sheriff." Judgment was rendered March 25, 1884, and the sheriff's return is a part of the record of the proceeding to foreclose, which resulted in this judgment. The statute regulating the foreclosure of mortgages upon realty (Code, § 3962) provides that the rule "shall be published once a month for four months, or served upon the mortgagor or his special agent or attorney at least three months, previous to the time at which the money is directed to be paid into court." Only the sheriff or his deputy can serve the rule. Falvey v. Jones, 80 Ga. 130, 4 S. E. Rep. 264. In this state, service of legal process, when made by the sheriff or deputy-sheriff, is evidenced by an official return. Such is the uniform practice, and there is no provision of law for verifying official service by any other means. It follows that when the judgment recites service, and there is a return, the recital is always based upon the return, and the two are to be construed together. This recital, upon all defenses which could have been presented in the exercise of due diligence. The court did right to rule out and withdraw from the jury all evidence upon that subject. Indeed, none of it ought to have been admitted. Judgment on both bills of exceptions affirmed. CENTRAL R. Co. v. NEIGHBORS. (Supreme Court of Georgia. Oct. 9, 1889.) MASTER AND SERVANT-NEGLIGENCE-INSTRUC TIONS. therefore, being silent as to the mode of 6. The bill of exceptions brought by the service, and the return showing that the defendants below, which goes only to rulmode was not personal service, but by leav-ings of the court touching the exclusion of ing a copy at the defendant's residence, the evidence previously received, is without the conclusion results that the rule was served shadow of merit; but, although the maker as the return specifies, and not otherwise. of a note given for the purchase money of All this appeared, and still appears, on the fertilizers cannot waive the right to set up, face of the record; that is, on what is as a defense to an action upon the note, the termed in some jurisdictions "the judgment illegality of the contract for lack of inspecroll." But the only service which the sher- tion of the fertilizers, or for lack of any other iff could legally make, and the only service requisite to render the sale and purchase effected less than four months before the compatible with the law of the land, yet by term of court at which the judgment of failure to repudiate the waiver, and set up foreclosure was rendered which could be and establish the illegality as a defense to valid, would be personal service. Service that action, the right to raise the question by leaving a copy at the defendant's resi- is forever gone when final judgment has dence is unauthorized and insufficient. | been rendered. The judgment is conclusive Dykes v. McClung, 74 Ga. 382; Meeks v. Johnson, 75 Ga. 630. Due service is no less requisite to give the court jurisdiction of the person and the subject-matter in foreclosure proceedings than in ordinary personal actions. In Moore v. Starks, 1 Ohio St. 369, which was such a proceeding, it was held, no doubt correctly, that before the court can act it is necessary that it should acquire jurisdiction over the person of the defendant as in any other adversary proceedings. It was held that jurisdiction over both the person and the thing is absolutely requisite to the validity of the judgment. In ordinary actions, "jurisdiction over the injuries to an employe, the court charged: "If you 1. In an action against a railroad company for defendant is obtained by his voluntary ap- believe from the evidence that the plaintiff was dipearance in the action, or by the service of rected by the yard conductor to go in and make a process. *** If a defendant neither ap-coupling, and that he signaled the engineer to stop, pears nor is served with process, a judg- and that the engineer stopped, and that the plain ment against him is void." Freem. Jud. tiff, in the exercise of ordinary care and diligence Sales, § 5. Where there has been no service, on his part to avoid the injury, was proceeding to the judgment is a nullity. Parker v. Jen-shift a coupling-pin from a lower to a higher bumpnings, 26 Ga. 140. There is a well-founded gineer, without any notice to him, and negligently, er, in order to make a coupling, and that the endistinction between no service, and irreg-came back, and that the plaintiff's hand was caught ular or defective service; the latter render- and injured, the plaintiff would be entitled to reing the judgment voidable only. In this cover." Held, that the charge was proper, as it left case the so-called service was, legally speak-the question of contributory negligence to the jury, ing, none at all; for, as the only mode (except by publication for four months) which our law recognizes as any service whatever of a rule nisi to foreclose a mortgage is personal service, the leaving of a copy of the rule at the defendant's residence can be no more effectual than the leaving of it at the residence of any other person. Were the sheriff to leave it at his own residence, and return that he had done so, and thereby served the defendant, the service would be quite as good as that which was returned in this instance. That the return is a part of the record, and must be noticed even by a purchaser, in connection with the judg-sustained by him while coupling cars. The ment reciting service, is well established by respectable authority. Settlemier v. Sullivan, 97 U. S. 444; Botsford v. O'Conner, 57 Ill. 73; Pollard v. Wegener, 13 Wis. 569; 1 Herm. Estop. § 362; Freem. Judgm. § 125; and see Wade, Notice, §§ 1361-1382. There is nothing contrary to this position in Hightower v. Williams, 38 Ga. 597, in which 1. The fourth ground is as follows: "Becase the recital in the judgment showed due cause the court erred in charging the jury as service, whether construed alone, or in con- follows, to-wit: 'If you believe from the evinection with the rest of the record. The dence that the plaintiff was directed by the effect was, not to supplement, explain, and yard conductor to go in to make a coupqualify by other parts of the same record, ling, and that he signaled the engineer to but to overcome the recital by extrinsic stop, and that the engineer stopped, and testimony. Here, on the contrary, there is that the plaintiff, in the exercise of ordinary no resort to extrinsic evidence, but only an care and diligence on his part to avoid the application of the rule that the whole rec-injury, was proceeding to shift a couplingord or judgment roll is to be read together. pin from a lower to a higher bumper, in or and was not an expression of opinion as to the Error from city court of Atlanta; VAN Calhoun, King & Spalding, for plaintiff in error. R. J. Jordan, for defendant in error. SIMMONS, J. Neighbors sued the railroad company for damages for personal injuries jury returned a verdict in his favor, and the defendant made a motion for a new trial, upon the several grounds stated therein, which was overruled by the court, and it excepted. The only grounds relied on before us for a reversal of the judgment of the trial court were the fourth and fifth. 2. The fifth ground complains that the court sent for the jury, and inquired whether they had agreed upon a verdict or not; and when he ascertained from the answer of one of the jury that they had not agreed, and that the question upon which they disagreed was a question of fact and not of law, he instructed them that, as it was a question of fact, he could not assist them, but that if it was a question of law he could assist them by instructing them what the law was; that they were the sole judges of the evidence; and that they must find the facts, and apply the laws given them in do not see the slighest error in this action of the court. The court had a right to inquire of the jury as to whether they had agreed upon a verdict or not; and if they had not agreed he had a right to inquire whether it was a question of law or of fact upon which they disagreed. Ascertaining that it was a question of fact, he had the right to tell them that he could not assist them upon that question, because they were the sole judges of the evidence. He did not tell them, or intimate to them, what they should find, as the court did in the case of Railroad Co. v. Cole, 77 Ga. 77, cited by the counsel for the plaintiff in error. In that case the court instructed the jury to "retire, and see if you cannot agree upon the amount;" thereby intimating that the question of amount was all that was necessary to be settled by the jury. Judgment affirmed. der to make a coupling, and that the en-[ negligence for the engineer to push back his gineer, without any notice to him, and neg-train. In the Mozely Case the court did ligently, came back, and that the plaintiff's not submit to the jury whether the plainhand was caught and injured, the plaintiff tiff could have avoided the injury to himwould be entitled to recover."" The excep- self or not by the exercise of reasonable tions taken to this charge were that it was care. In this case, as we have shown, that an expression of opinion as to what acts question was directly submitted to the jury on the part of the defendant's agent would by the court in its charge. constitute negligence; and also that it excluded from the jury the consideration of whether or not the plaintiff, after the engineer started to come back, might not, by the exercise of ordinary diligence, have avoided the injury. We do not think these exceptions are well founded. We have carefully scanned the extract from the charge set out in the foregoing ground of the motion, and we cannot see that there is any expression of opinion by the court as to whether there was negligence or not on the part of the defendant's agents. The charge leaves to the jury to find the facts, including negligence or no negligence, and in sub-charge to the facts, and find a verdict. We stance tells them that if the facts mentioned in the charge are found to be true by them, including negligence, then they would be authorized to find for the plaintiff. The extract excepted to says that, if the jury believe from the evidence that such and such facts, (enumerating them,) are true, and that the engineer negligently pushed the train back, the defendant would be liable. | Instead of telling them what had been proven, the court leaves it to the jury to say whether these facts had been established by the evidence or not, and whether the engineer was negligent or not. The court also left it to the jury to say whether the plaintiff could have avoided the injury to himself by the exercise of proper care. It is true, this was, in the first part of the extract, excepted to, but we do not think it is necessary for the judge to repeat at the end of every sentence that the plaintiff cannot recover if he could have avoided the injury by the exercise of proper care. Besides, the court had already instructed the jury in other portions of the charge that the plaintiff could not recover if he was in fault, or could have avoided the injury to himself by the exercise of ordinary care, although the defendant might have been negligent. Besides, in the very next sentence after the one excepted to, the court puts the other alternative, and instructs the jury that, if the engineer was not negligent in pushing the cars back the plaintiff could not recover. We have read the whole charge of the court sent up in this record, and it is a fair, full, and clear exposition of the law on the subject of the right of an employe to recover for an injury from a railroad company. Counsel for the plaintiff in error re-refusal of the injunction in this case, accordlied upon the case of Railway Co. v. Mozely, 79 Ga. 463, 4 S. E. Rep. 324, to sustain him in the criticism he makes upon this charge. But in our opinion there is a wide difference between the charge given in that case and the charge now under consideration. In the charge in that case the court did not submit to the jury the question whether the acts mentioned in that charge constituted negligence on the part of the railroad company, but assumed that they did constitute negligence. In this case the charge leaves it to the jury to find whether the facts enumerated were true, and whether it was BROOMHEAD V. GRANT et al. (Supreme Court of Georgia. Oct. 11, INJUNCTION-NUISANCE. 1889.) been combined in the superior court does not give The fact that courts of equity and law have the latter jurisdiction which the two courts did not have, and does not affect the rule that injunction will not lie for the abatement of a nuisance, in the absence of the allegation of special facts showing that the statutory remedy is inadequate. Error from county; M. J. CLARKE, Judge. SIMMONS, J. There was no error in the ing to the facts disclosed in this record. The remedy for the abatement of a nuisance, either public or private, is provided in the Code, (sections 4094-4098.) The fact that courts of equity and of law have been combined in the superior court does not give the latter court any more power or jurisdiction than the two courts had before the uniform procedure act of 1887. If the court of equity would not have had jurisdiction of this case, under the facts as disclosed by this record, before the passage of this act, that act does not give it jurisdiction now. This court in several cases, notably in Ruff v. Phillips, 50 Ga. 130, has decided that the remedy for the abatement of a nuisance is provided for in the sections above mentioned. Parties who wish to abate a nuisance, either public or private, must resort to the remedy thus provided, unless special facts are alleged showing that that remedy is not sufficient, or is inadequate. No such facts are alleged in this petition. Judgment affirmed. power to pass the act to require this tax to be levied was given to the legislature by this paragraph of the constitution; that these insolvent costs were "expenses of courts;" and that the legislature therefore had the right to authorize and require the county authorities to levy a tax for the payment of the same. It was admitted by the counsel for defendants in error in his argument before us that, if the insolvent costs of solicitors general were not "expenses of courts," the act was unconstitutional; so ADAIR et al. v. ELLIS et al. the only question for us to determine is (Supreme Court of Georgia. Oct. 14, 1889.) whether such costs are "expenses of CONSTITUTIONAL LAW-TAXATION. courts." The provision now under conUnder Const. Ga. art. 7, § 6, par. 2, provid-sideration, and several others in the presing that the legislature shall not have power to ent constitution in regard to the taxing delegate to a county the right to levy a tax for any powers, are new ones. No such restrictions purpose except, inter alia, expenses of courts, an as are now contained in the constitution act requiring the commmissioners of a county to were ever before thrown around the counlevy a tax to pay insolvent costs due to a solicitor general is void, such costs not being expenses of court. Error from superior court, Fulton county; M. J. CLARKE, Judge. W. S. Thomson, for plaintiffs in error. H. C. Glenn, W. D. Ellis, and N. J. Hammond, for defendants in error. ties, cities, and the legislature. It is a matter of public history that when the convention met in the year 1877 the counties, towns, and cities of the state were largely in debt. Some of them were so much in debt that they were compelled to compromise with their creditors. The legislature had the power, under the former constitution, to authorize counties and cities to levy taxes upon the people for any object which might seem to it proper, and it had used this power very freely; so much so that, as said before, many counties, cities, and towns in the state were heavily in debt. The members of the convention of 1877, SIMMONS, J. It appears from the record in this case that W. D. Ellis and H. C. Glenn, ex-solicitors general of the city court of Atlanta, claim that the county of Fulton is indebted to them, as such solicitors, certain amounts on account of insolvent costs not collected by them from the fines and forfeit-knowing these facts, determined to put the ures fund. The legislature passed an act, restriction now contained in the constituapproved August 3, 1889, requiring the com- tion upon the power of the legislature in missioners of roads and revenues of Fulton order to prevent indiscriminate levies of county to levy a tax upon the property of taxes, and prevent counties, towns, and the people of that county, to pay a certain cities, from Încurring further indebtedness, proportion of the amount claimed by Ellis except as provided in another paragraph and Glenn to be due them by the county. of the constitution. The section now unEllis and Glenn applied to the county com-der consideration was one of the restricmissioners to levy this special tax, and the tions put upon the legislature to restrain it application was refused by them on the from authorizing counties to levy taxes exground that the act aforesaid was uncon- cept for the objects enumerated therein. stitutional, null, and void, because the leg- One of these objects, as declared in that islature had no power or authority under paragraph, is "expenses of courts." The the constitution to require them to levy a meaning of these words is not to be entax for this purpose. Ellis and Glenn then larged by construction, but they are to reapplied to the superior court of the county ceive the usual and common construction for a mandamus to compel the county com- placed upon them at the time they were inmissioners to levy this tax. Upon the hear-corporated in the constitution. We are ining of the mandamus, the court below made clined to think that where power to levy the same absolute, and ordered the com- taxes is involved the courts should give it missioners to levy the tax. The commis- a strict construction; but, to give these sioners excepted to this judgment, and words their usual and common meaning, brought the case here for review. we think it was not intended in the use It was contended by counsel for the plain-thereof to embrace the fees and costs of sotiffs in error that under article 7, § 6, par. licitors general. As far as we know or can 2, of the constitution, (Code, § 5190,) the leg- ascertain, the fees and costs of solicitors islature had no power or authority to re- general have never been regarded as exquire this tax to be levied. That section penses of court, to be paid from the county reads as follows: "The general assembly treasury. The law of the state before and shall not have power to delegate to any at the time this constitution was adopted county the right to levy a tax for any pur- and ratified by the people was that the fees pose, except for educational purposes in in- and costs of the solicitors general were to be strueting children in the elementary paid from the "fines and forfeitures fund," branches of an English education only; to and the law under which these defendants in build and repair the public buildings and error were appointed was that their combridges, to maintain and support prison-pensation should be paid from that fund. ers; to pay jurors and coroners; and for litigation, quarantine, roads, and expenses of courts; to support paupers; and pay debts heretofore existing." Counsel for the defendants in error contended that the As far as we know, no county in this state, before the adoption of the present constitution, ever paid insolvent costs to such officers except when required by some local act. So far as we know, no judge, in approving the bill of insolvent costs of the solicitor | to determine in this case whether the legis general, ever ordered it to be paid by the lature can enlarge the common and usual county treasurer out of any funds in his meaning of these words or not. It is suffihands except the fines and forfeitures fund. cient for us to say that in this case the legSo far as we know, no solicitor general in islature did not say that the claims of the this state ever collected a bill for insolvent defendants in error were expenses of court. costs from any county fund in the treasur- The act speaks of them as "claims" due ers' hands other than the "fines and forfeit- them as the ex-solicitors of the city court ures" fund. The expenses of courts, as com- of Atlanta, and undertakes to authorize the monly understood by the profession and compromise and adjustment thereof. It the people when this paragraph of the con- does not say a word about these claims bestitution was adopted, were the payment ing expenses of court. If they were expenses of jurors, bailiffs, witnesses in criminal of court, they should have been paid in full, cases, lights, fuel, stationery, etc.; but no and not 20 per cent. thereof, as the act proone ever understood or claimed that the in-vides the county commissioners in their dissolvent costs of solicitors general were ex-cretion may pay. Moreover, the law propenses of court. If they had been so re-viding the means and manner of payment garded, the question would certainly have of the solicitors general of the city court of been made by some one of the numerous Atlanta is a general law of the state, applilawyers of the state who have acted as so- cable to the subject-matter, and the legislicitors general; for it is well known, by the lature is forbidden by article 1, § 4, par. 1, profession at least, that nearly every one of of the constitution (Code, § 5027) to enact them, I might say all of them, have gone special laws where provision has been out of office holding large claims for insolv- made by the general law. This is clearly ent costs. It is argued by the able coun- a special act for the benefit of Ellis and sel for the defendants in error that, unless Glenn, changing the general law as to the such costs are held to be "expenses of payment of insolvent costs in the city court courts," the solicitors general will receive of Atlanta. We conclude, therefore, that little or no compensation for the valuable the insolvent costs of the solicitor general services which they render the public, and of the city court of Atlanta are not a part that it would be a great hardship upon of the expenses of the court; and, as the them to compel them to serve the public constitution forbids the legislature to grant without compensation. All this may be power to the county authorities to levy a true, and doubtless is true in many in- tax for any purposes other than those enustances; but we do not think that is an ar- merated therein, the insolvent costs of soligument which should influence us in the con- citors general not being one of these purpostruction of a constitutional provision. It ses, the legislature had no power or authoris our duty to declare what the law is, and ity to pass this act requiring the county aunot what it should be. The hardship in thorities of Fulton county to levy this tax, any particular case should not influence the and that the act is unconstitutional, null, court in its construction of the law. That and void. Let us adhere to a strict conargument should be addressed to the law-struction of the constitution, at least so far making power. Clerks and sheriffs have as taxing the people is concerned. No man large sums of insolvent costs due them. In knows how soon the legislature, city govthese days the large majority of the crimi-ernments, and county governments may be nals who are tried in the courts are wholly in the hands of non-tax-payers. These reinsolvent. In each case tried the clerk and strictions, which are now so much com sheriff are entitled to costs, to be paid, like plained of, will then be a shield to the propthe solicitor general's, out of the "fines and erty owners of the state, and a barrier forfeitures fund." We have no doubt that against those who desire to put their hands every clerk and sheriff in this state, who has in the public treasury. Judgment reversed. been in office any length of time, has large amounts of insolvent costs due him, which he will never collect. If the insolvent costs of the solicitor general are "expenses of courts," why should not the insolvent costs of the clerk and sheriff be also embraced therein, and why should not the legislature pass a general law directing the county authorities to levy taxes for the payment thereof? If these insolvent costs of the solicitors general or clerk and sheriff are ex-dose contained such a quantity of a certain poison penses of court, what was the necessity of the legislature passing this act? Why not apply to the court for an order in the first instance requiring the county authorities to pay them? If they are expenses of court, there is no need of a special act of the legislature, because the court has power now to compel the payment of all necessary expenses of the court. It may be argued, however, that the legislature has the power to determine and define, under this paragraph, what are expenses of courts, and that the courts would be bound by its definition. This may or may not be true. It is unnecessary for us BLOOD BALM Co. v. COOPER. (Supreme Court of Georgia. Oct. 14, 1889.) POISON-PATENT MEDICINE-LIABILITY OF PRO PRIETOR. places on the bottle containing it a label recomWhere the proprietor of a patent medicine mending it for certain diseases, and directing the size of the dose to be taken, and it is shown that the as to injure plaintiff when he took it, the proprietor is liable for the damage, whether he sold the medicine to plaintiff directly or to a druggist to be resold, from whom plaintiff purchased it. Error from city court of Atlanta; VAN EPPS, Judge. Hillyer & Bro., for plaintiff in error. Hall & Hammond, for defendant in error. BLANDFORD, J. 1. The main question in this case arises upon the refusal of the court below to award a nonsuit, and the solution of this question depends upon whether, where one prepares what is known as a proprietary or patent medicine, and puts it |