statute of limitations. The fifth ground of demurrer was partially sustained, it being held good as to all property besides that set forth in the claim affidavit. The other grounds were overruled entirely, and defendant excepted pendente lite. Plaintiffs also excepted to the sustaining in part of the ground mentioned. Defendant pleaded, in bar, that all the property set out in his inventory as administrator was the sole and separate property of the wife of Armstead Fulcher, who died about 13 months before him, and, upon her death, was taken possession of by him, as her sole heir, subject to her debts,-she having died without any lineal descendant; that there were outstanding debts of hers sufficient to absorb the entire property, among which was a note given by Mrs. Fulcher and her husband to defendant. Verdict for defendant. Plaintiffs moved for a new trial on the following grounds, among others: (1) | The court, at the opening of the case, ruled, as matter of law, that the judgment set forth in the scire facias was dormant, except as to the property involved in the claim case; (2) the court permitted defendant to testify as to matters arising between himself and Armstead and Mary Fulcher, -plaintiffs objecting that he was a party to the contract, directly interested in the matter in issue, and could not testify as to the consideration or circumstances under which the note set out in his plea was given; (3) the court permitted defendant to testify that the real estate set forth in the inventory of the estate of Armstead Fulcher was property that Armstead had inherited by virtue of being the heir at law of his deceased wife, and chargeable with her debts, plaintiffs objecting that defendant was estopped by his return of the property absolutely as that of his intestate. Separate from the motion for a new trial, the plaintiffs moved, in writing, that the court vacate his ruling upon the demurrer, -the same having been verbally rendered and not placed on record, and being the matter set forth in the first ground of the motion for a new trial,-in order that, should a new trial be granted, the case might proceed as if no such ruling had been made, and the trial be had de novo. This order was granted, and at the same time the motion for a new trial was sustained; the court being of the opinion that the judgment was not dormant in whole or in part, and that plaintiffs were entitled to the issuing of an execution against defendant, as administrator. Defendant brings error.

W. W. Montgomery, for plaintiff in error. Frank H. Miller, for defendants in error.

SIMMONS, J. 1. The court did right in granting a new trial in this case. He held, on the trial of the case, that the judgment was dormant as to all the property of the defendant, except that involved in the claim case. His idea seemed to be that the statute ran against the judgment during the pendency of the litigation in the claim case. Upon the motion for a new trial he reversed this ruling, and decided that the judgment was not dormant. In this, we think, he was clearly right. The prosecution of this claim in the courts for over six

years was such a public act on the part of the plaintiff in the judgment that it prevented the statute from running pending the litigation. In the case of Gholston v. O'Kelley, 7 S. E. Rep. 107, all the authorities on this question are collated; and that decision, and the cases there cited, show that the judge below was correct in holding the judgment in this case not dormant. See, especially, the case of Water-Lot Co. v. Bank, 53 Ga. 30, wherein the court says that any proceeding by the plaintiff showing that he claimed his judgment to be a subsisting one, entered of record, (as, for example, putting in his fi. fa. to claim money, prosecuting a claim, etc.,) is a substantial compliance with the act of 1825, so as to prevent the judgment from becoming dormant.

2. The court did right in granting a new trial on the ground, also, that he allowed Fulcher, the administrator, to testify in his own behalf concerning a debt due him by Mr. and Mrs. Fulcher. In the case of Finch v. Creech, 55 Ga. 124, this court held that “an administrator, though a creditor of the intestate, is a competent witness to show, by debts of the estate other than his own, the necessity to sell land, and to show his acts and the state of his account since the administration, but not to prove any debt due to him from the intestate, arising from a partnership between them, or otherwise." According to this case, Fulcher, the administrator, was an incompetent witness to testify concerning any debt due him by Mr. or Mrs. Fulcher, but he was competent to testify about the debts of others, or upon any other matter which did not bring his interest into antagonism with that of the estate.

3. The court was right, also, in overruling the demurrer to the scire facias. While it is true, under our Code, that the plaintiff could have levied his execution upon any property of the intestate which he could find, without making the administrator a party, yet the administrator might have assets in his hands which could not be reached by levy, and therefore the plaintiff would have the legal right to make him a party by scire facias, so as to bind the administrator by the judgment, in case he did not have assets upon which the execution could be levied. Upon this subject, see the reasoning of WARNER, C. J., in the case of Shepherd v. Ryan, 53 Ga. 563.

While the plaintiff in a judgment has the legal right to make an administrator a party, the administrator is not deprived of any of his rights by such a proceeding. In this kind of proceeding, he can show any fact to relieve himself that he could show if the suit had originally been commenced against him upon the judgment. He can plead any of the pleas that he could have pleaded if the original suit had been brought against him as administrator; and, if he could sustain his pleas by proper proof, the judgment would be rendered against him only as if he had been sued originally. In this particular case, we think, he would be entitled to show that he had no assets belonging to the estate of the intestate, or that he had fully administered them, or he could show by proper testimony that the assets which he had in his hands were

taken possession of by his intestate as the sole heir of his wife, and that the intestate had not paid the debts of his wife before he took possession of them, and that there are outstanding debts against the wife sufficient to exhaust what assets he had in his hands.

Nor do we think that he is estopped from making this proof by his inventory or return as administrator. In his inventory or return he alleges that the assets belong to Mr. Fulcher, his intestate. That return may be perfectly consistent with the fact that his intestate got possession of them by reason of being the sole heir to his wife, and died in possession of them. The husband cannot get a clear title, as against creditors to the assets of his wife, unless he pays her debts. If, therefore, in this case, the husband did take possession of the assets of his wife, and failed to pay her debts, her creditors would be entitled to be paid out of the assets, in preference to the husband's creditors. If his administrator can show by his own oath that the wife owed other debts than the one to himself, and can show by other testimony that she owed him, and was liable for, this debt, we think it should be paid out of her assets before the debts of the husband, and that the administrator would not be estopped from showing that the property in his hands was really the property of the wife, and subject to her debts, although, in his return or inventory to the ordinary, he returned it as the property of the intestate. With these principles settled, we think there will be no difficulty on the next trial. Judgment affirmed.

1. Under Code Ga. § 4157, giving an appeal from a judgment of a justice's court, where the amount claimed is over $50, an appeal lies from a judgment in an action before a justice for $50 for wages, claimed to be past due, as such amount bears interest from the time it becomes due.

2. Evidence that a hiring was for a certain sum per month, nothing being said as to length of time the service should continue, and no other circumstances being shown, indicates that the hiring was for one month.

Error from superior court, Richmond county; RONEY, Judge.

Action by Magarahan against Wright & Lampkin, for wages. Following is, substantially, the official report concerning the instructions referred to in the opinion: At the conclusion of the testimony the court refused to charge the following written request, submitted by plaintiff: "If defendants employed plaintiff, and no specific term was agreed on, and they discharged plaintiff, without just cause, within a year from the making of the contract, you will find in favor of plaintiff." The court gave in charge the following written requests, submitted by defendants: "First. The plaintiff sued the defendants for his salary from November 15 to December 15, 1888, claiming that he was employed for the year, and was discharged, without just cause, before the end of the year. The bur

den of proof is upon him to make out his case; and, before he can recover, he must show that he was employed by the year. Second. If you believe, from the evidence, that he was employed at so much per month, without any statement as to time, then that is what would be termed, in law, an indefinite hiring,' and would not extend beyond the month. Third. There is no presumption of law, in Georgia, that a clerk employed for an indefinite time is employed for the year. If the clerk claims that it was an employment by the year, then the burden is upon him to establish the contract by proof." The court then charged as follows: "In the opinion of the court, the question is, what was the contract between the parties? Was it by the month or by the year? If by the year, plaintiff would be entitled to recover; if by the month, he would not be entitled to recover." Verdict for defendants, and plaintiff brings error.

Salem Dutcher, for plaintiff in error. J: S. & W. T. Davidson, for defendants in er

ror.

SIMMONS, J. It seems from the record in this case that the plaintiff in error was employed as a clerk by the defendants in error. On November 15, 1888, he was discharged. Subsequently he brought a suit against the defendants, in a justice's court, on the following account: "To wages, as clerk, from November 15th, 1888, to December 15th, 1888, $50.00." On the trial in the justice's court, a judgment was rendered in his favor against the defendants, for the sum of $50, the principal debt, and interest from November 15, 1888, and costs of court. The judgment was rendered January 25, 1889. Defendants took the case, by appeal, to the superior court. When the case came on for hearing in the superior court, plaintiff moved to dismiss the appeal, on the ground that the amount claimed in said suit did not exceed $50. The motion was overruled, and plaintiff excepted. On the trial of the case in the superior court, under the charge of the judge, the jury found a verdict for the defendants. The plaintiff excepted to the decision refusing to dismiss the appeal, and excepted, also, to the refusal of the court to charge a certain request asked by the plaintiff, and excepted, further, to certain charges given by the court which were requested by the defendants, all of which will be seen in the official report.

1. There was no error committed by the court in refusing to dismiss the appeal on the motion of the plaintiff in the court below. The sum sued for was $50 for wages, as clerk, from the 15th of November to the 15th of December, 1888. If the action was well founded, the account bore interest from the time it was due up to the date of the judgment. Code, § 4157, declared that, if the amount claimed in said suit is over $50, either party may, as a matter of right, enter an appeal from said judgment. The amount sued for in this case being $50, and it bearing interest from the time it was due, the amount of principal and interest claimed at the time of the judgment would, therefore, be more than $50; and, according to the above section of the Code, the plaintiff

would be entitled, as a matter of right, to enter an appeal. See, upon this point, Ansley v. Jordan, 61 Ga. 482, and Dykes v. Woolsey, 62 Ga. 608, where this court say: "Where the sum claimed, including principal and interest, exceeds fifty dollars, there may be an appeal from the justice court to the superior court." See, also, Bell v. Moton, 68 Ga. 831.

2. We do not think that either the request to charge made by the plaintiff and refused by the court or the request to charge made by the defendants and given by the court was a correct exposition of the law upon this subject. The request of the plaintiff was, in substance, that when there was a hiring, and no particular length of time specified, the inflexible rule was that the hiring was for a year. The request of the defendants, as given by the court, was that, if the plaintiff was employed at so much per month, without any statement as to time, then this would be termed, in law, an "indefinite hiring," and would not extend beyond a month. We think that the rule is that laid down by the supreme court of Kentucky in the case of Smith v. Theobald, 5 S. W. Rep. 394. That rule is as follows: "Where a person is hired to serve another, without any agreement as to the duration of service, there is no in- | fiexible rule of law as to the length of time the hiring is to continue. The question as to the length of time the hiring is to continue will be governed by the circumstances of each particular case. If one is hired to work in a crop being raised, the presumption is, in the absence of circumstances showing a contrary intention, that his term of service is to continue during the crop season. If one is hired to do general service on a farm, the presumption is, in the absence of an agreement to the contrary, or circumstances showing a contrary intention, that the term of service is to continue for a year. The same rule applies to the hiring of persons to do service in any business that requires constant labor. As this rule is not inflexible, and may be controlled by circumstances, the circumstances of agreeing on weekly, monthly, quarterly, or half-yearly payment of wages may be sufficient, of itself, to create the presumption of a hiring for the corresponding periods. But the circumstances of the hiring, though no time is expressly agreed upon, may show that it was to continue for a year, although the payment of wages was to occur monthly," etc. Story, in his work on Contracts, (volume 2, § 1291,) lays the rule down as follows "Where wages are payable at a stipulated period, as per week, or month, or half-year, such circumstance, standing alone indicates that the hiring is for such period. But, if there be anything in the contract showing that the hiring was intended to be for a longer term, as for a year, the mere reservation of wages for a lesser term, as per week or month, will not control the hiring. Thus, | where a farm servant was hired for a year, at three shillings a week, with liberty to go at a fortnight's notice, it was held to be a hiring for a year; the fortnight's notice plainly showing that it was not a weekly hiring. So, also, where the plaintiff was engaged, as editor of a review, at

three guineas a week, with a progressive increase of salary, according to the sale of the review, and a custom was made out by which the engagements of editors to newspapers were considered as annual engage ments, unless otherwise expressed, the question was left to the jury; and, they having found a verdict that the engagement was not for a year's service, but only for a weekly service, the court refused to disturb the verdict, on the ground that the general rule that contracts of hiring were for a year, when no definite arrangement of time was made, only created a presumption, which could be rebutted by the circumstances of the case." See, also, Schouler, Dom. Rel. (4th Ed.) § 458; Smith, Mast. & Serv. (Text-Book Ser.) side p. 78; 1 Tayl. Ev. (Text-Book Ser.) § 177.

The testimony showing, in this case, that the hiring was for $50 per month,-nothing being said by either party that the hiring was intended to be for a longer term,such a circumstance, standing alone, would indicate that it was for the period of a month. If the plaintiff had shown any other circumstances, such as the custom in Augusta in hiring clerks, or anything else tending to show that it was the intention of the parties, at the time the contract was made, that the employment was for a longer term than a month, it ought to have been submitted to the jury to say what the intention of the parties was, but, as he showed no other circumtances, except the hiring and the payment per month, this, of itself, as we have seen, indicates that it was for that period, and, although the judge erred in the charge given, the verdict was right, and we will not disturb it. Judgment affirmed.

SUTTON et al. v. HIRAM LODGE No. 51. (Supreme Court of Georgia. Nov. 25, 1889.) LEASES-HOLDING OVER.

1. A lease "for the space of twenty years, or during our [the lessees'] natural lives, "is for 20 years only, provided the lessees live that long, and expires on their death during the 20 years.

2. The lessees, on holding over after the expiration of 20 years, become tenants by sufferance. Error from superior court, Wilkes county; LUMPKIN, Judge.

W. M. & M. P. Reese, for plaintiffs in erS. H. Hardeman, for defendant in er

ror. ror.

BLANDFORD, J. 1. This was an action of ejectment brought by the defendant in error against the plaintiffs in error to recover certain land situated in the village of Danburg, in the county of Wilkes. The defendant in error on the trial below relied upon a certain instrument in writing, whch is as follows: "Georgia, Wilkes county. The undersigned, in consideration the Masonic lodge at Danburg, in said county, known as Hiram Lodge No. 51,' has allowed them to remove and use as a store-house their lodge building, and still allows them to use the same, which they have fitted up partly for a storeroom, and removed to a lot in Danburg belonging to the undersigned, do agree, in consideration of the premises, to keep said building in good order and condition

outwardly, excepting the blinds of the upper or lodge room, which are to be furnished by said lodge, and afterwards kept in repair by us, and to keep the same insured at a sufficient amount to replace the property if destroyed or damaged by fire, giving to said lodge at all times the right of ingress or egress to and from said lodge room, for which we are to have the use and control of the lower room of said building for the space of twenty years, or during our natural lives, at which time our rights, not only in the building, but also in the lot of land upon which it has been removed and now stands, shall cease, and shall become exclusively the property of said lodge, to which we bargain and sell the same according to the above conditions, and will warrant and defend the title of the same to said lodge against any and all persons whatever. Signed, sealed, and delivered in presence of J. S. WOMAK. E. W. ANDERSON, J. P. JOHN A. SUTTON. [L. S.] Z. W. ANDERSON. [L. S.]"

The court allowed the testimony without objection, as the record shows, to explain the words, "for the space of twenty years, or during our natural lives;" some of the witnesses testifying on behalf of the lodge that the meaning of the contract was that the plaintiffs in error should have a lease for 20 years, and no longer, if the plaintiffs in error should live that long, but that if the plaintiffs in error should die before the expiration of the 20 years the lease should expire. Other witnesses introduced testified to the contrary; that the meaning was that the plaintiffs in error should have the lease for 20 years, and at the expiration of that time, at their option, as long as the plaintiffs in error should live. The jury found in favor of the plaintiff in the court below, and a motion for a new trial was made by the defendants, which was overruled, and they excepted. We think that, without more, the paper which was introduced gave to the plaintiffs in error a lease in the premises for 20 years only, provided they should live that long, and if they should die before the expiration of the 20 years the lease should expire, and so it appears the court held.

2. But it is further contended by the plaintiffs in error that, after the expiration of the lease, the plaintiffs in error remained a year longer in possession of the premises, without objection on the part of the defendant in error, and that therefore they had a right to a further term until the expiration of their lives. If we are right in the construction we have placed upon this instrument, after the expiration of the lease of 20 years, the plaintiffs in error were merely tenants holding over, and could have been turned out of possession, under section 4077 of the Code. They were merely tenants at sufferance after the expiration of the lease. Wood, Landl. & Ten. 20. Judgment affirmed.

NOKT EASTERN R. Co. v. CHANDLER. (Supreme Court of Georgia. Dec. 2, 1889.) DAMAGES EVIDENCE.

1. In an action against a railroad company for personal injuries, a verdict of $2,000 in plaintiff's favor will not be set aside as excessive where it

appears that, before the accident, plaintiff, whose business was farming, was a strong man, nearly 24 years old; that he could then make about $300 per year; that by the accident his arm was broken in two places,-one a common fracture, the other compound; that he suffered and still suffers in the arm, breast, back, and kidneys; that he had not been able to do any work for six months thereafter; and that his capacity to work had been permanently reduced 50 or 75 per cent.

2. Where there is evidence that plaintiff was permanently injured, mortuary tables are admissible to show his expectancy of life.

Error from superior court, Clarke county; HUTCHINS, Judge.

Action by plaintiff, Chandler, against the Northeastern Railroad Company for personal injuries. At the trial, plaintiff testified that, after being struck, he got up, went about 50 yards to the nearest house, and laid himself down on a bed In the course of 5 minutes could not raise up. The next evening, was carried about a mile on a bed to another house. Was confined to bed about 2 weeks. Could not get about much for about 6 weeks. Was not able to do any work for 6 months. Suffered and still suffers from arm, breast, back, and kidneys. Bladder has become relieved. Business was farming. Was nearly 24 years old, and was a stout man before being hurt. Could then make about $300 a year. Crop amounted to about that much. Arm and back are weak. Cannot lift much. Can make about one-fourth of a hand. One of the breaks in his arm was a common fraeture; the other a compound fracture. The muscles were cut through by the broken bone. The arm was set by two physicians between 8 and 9 o'clock of the evening of the injury. It will never be a stout arm, but the bones knit together. They found him bruised in the back and hips, and his bladder troubling him. One of them treated him afterwards for congestion of the left kidney. The physicians testified that they thought his capacity to labor was permanently reduced,-one could not say how much; the other thought from 50 to 75 per cent.

It would be hard on him to hoe, or do anything requiring exercise of his back. There was improvement in his condition at the time of the trial. April, 1889. A month or two after it was first broken, one of the physicians was called in to set the arm again; plaintiff having attempted to pick up something, and having something in his arms. There was a verdict of $2,000 in plaintiff's favor, and defendant brings er

ror.

Barrow & Thomas, for plaintiff in error. Thomas & Stickland, for defendant in error.

BLANDFORD, J. A trial having been had. and judgment having been rendered against the railroad company at the instance of the defendant in error, it moved for a new trial upon the grounds (1) that the court erred in not awarding a nonsuit; (2) that the court erred in admitting the Carlisle mortuary tables in evidence to the jury: (3) that the verdict of the jury is without evidence to support it; and (4) that the verdict is excessive.

1. We are of the opinion, under the facts of the case, that the court did right in re fusing to grant a nonsuit. It requires no argument or demonstration to show that