tion has a right, as such owner, to dispose of the profits, then there is a partnership, if the parties be seized per my et per tout. If one may [dispose] of or control the profits as much as the other, then there is a joint interest. But if the party whose interest is in question have only a 'common interest' in the profits with the other, that is, if he have no title jointly with the other; if his position be that of a mere employé, with no right of control as owner over the profits, but with only a common interest in them,-that is, interested in common with the other in their increase or decrease, because they measure the amount of his wages, then he is not a partner." We have shown that in the present case there was no joint interest or ownership in the partnership property, because the lessor had for the time disposed of all of its interest to the lessee.

There was no joint interest in the profits and losses, but only a common interest in the profits over and above certain charges and expenses, because such profits fixed the amount to be paid to the lessor at the time fixed in the contract. The learned trial judge, in his opinion, seems to think that the lessor would share in the losses to the extent of losing the profits, if the road was so operated as not to produce profit. We think the word "losses" in our Code means something more than the mere failure to realize profits. In order to constitute a partnership by joint interest in the profits and losses, the partners must share in all losses sustained by the partnership. They must share in the net losses. In the present case there was no such participation in losses. Nor was there any mutual agency. Neither party could make a contract which would be binding upon the other. In general, the test of a partnership is the intention of the parties, gathered from the terms of the contract, to form such an associated body as that which the law regards as a partnership; and such an intention does not here appear. For these reasons we think that there was no intention to form a partnership, and that in fact none was created. The instrument is what it is denominated to be, a lease. The lessor conveyed its property to the lessee, which agreed to pay rent during the term for which it held the property. See Warwick v. Stockton, 55 N. J. Eq. 61, 36 Atl. 488. "Where the owner of property leases it for business purposes, agreeing to receive in return a proportion of the profits of the business, he receives the amount merely as rent, and is not a partner in the business." T. Pars. Partn. (4th Ed.) § 71, citing a number of cases.

Nor do we think that there is any such fiduciary relation on the part of the lessee towards the lessor as to create a trust in favor of the latter. It seems to us that the relation created by the contract is that of landlord and tenant, and that, when profits are realized, the relation may become that of debtor and creditor. The lessee is bound, in any event, to pay certain interest on the bonds of the lessor, and in certain circumstances it is

bound to pay the agreed amount of the earnings after the agreed deductions have been made. If the lessee fails to pay this rent, the lessor has its remedy at law, as has any other landlord. If the lessee violates any of the covenants or conditions subsequent contained in the lease, the lessor has its remedy at law by a forfeiture of the lease. It is well settled in this state, and, indeed, in all the other states, that equity has no jurisdiction to decree a forfeiture. A suit for a forfeiture is founded upon the breach of a contract or condition, and therefore equity will not take jurisdiction to enforce forfeitures. Equity has jurisdiction to relieve against forfeitures, but not to enforce them. Hence the forfeiture of this lease would be a purely legal remedy. Under our system, legal and equitable causes of action may be joined in the same petition, and the courts will enforce each according to the remedies pertaining to it. The same court, in the same case, will enforce a legal right and an equitable one. The present petition seems to seek equitable relief, but there is nothing to give a court of equity jurisdiction. Certainly there is no trust relation between the parties which would authorize a court of equity to interfere. The lessee was, for the term of the lease, absolute owner of the property, with the right to use it and operate it as it deemed best. The lessee was absolute owner of all the earnings, income, and profits that accrued from the operation of the road, though bound under its agreement to pay to the lessor at stated times a portion of any profits which might remain after certain deductions were made. The lessor had no legal or equitable right in the profits as profits, but only a contractual right to have its share paid over when earned and due. It had no right to the earnings as a particular and separate fund, although its share of the profits were to be assigned to it therefrom. The lessee had only contracted to pay the lessor at certain periods a certain proportion of the profits, if any were made, above certain charges to be made upon the gross earnings of the leased road. This was purely a contractual relation between landlord and tenant, which was enforceable at law. In the case of Thomas v. Railroad Co., 139 N. Y. 163, 34 N. E. 877, Andrews, C. J., in discussing a question similar to this, said (page 178, 139 N. Y., and page 881, 34 N. E.): "The substance of the contract between the corporation and the bondholders is that the interest should be paid out of a particular fund when it should come into existence and be ascertained in the manner provided in the contract. The earnings of the corporation, when received, would, of necessity, become the property of the corporation. They might be wholly absorbed in paying expenses and repairing and operating the road. If there was a surplus beyond what was required for these purposes, ascertained as provided in the contract, the corporation obligated itself to apply it to the payment of interest on the bonds.

But

until the surplus was ascertained, and applied by the corporation to the payment of interest, it remained the absolute owner of the fund, and it was subject to disposition for any corporate purpose by the board of directors. The corporation was, by its contract, obligated to apply it to the payment of interest on the bonds, and a breach of the contract would subject it to liability to the bondholders, and such remedies would be open to them as the law affords for breach of contract in other cases. But the bondholders acquired no title, legal or equitable, to the fund itself.

The rights and obligations of the parties rested in contract. There was no appropriation of the fund out of which the interest was to be paid in any sense which worked a transfer of the legal or equitable title thereto when it should come into existence, and before it had been set apart by the action of the directors to the payment of interest." See, also, Day v. Railroad Co., 107 N. Y. 129, 13 N. E. 765, and Uhlman v. Insurance Co., 109 N. Y. 421, 17 N. E. 363. Having shown that the law does not permit two corporations to enter into a partnership unless they have express charter authority to do so; that, even if it did, this contract was not one of partnership; that the contract was a lease; and that no trust relations were established between the parties which would give a court of equity jurisdiction in the premises,-it follows that the petition was predicated solely upon matters over which courts of law have jurisdiction. While, under our system, legal and equitable causes of action may be joined in one action, yet, if the petition contains no equity, the court cannot award equitable relief. See, in this connection, Broomhead v. Grant, 83 Ga. 451, 10 S. E. 116. The appointment of a receiver is a distinctly equitable remedy, and was therefore erroneous in a case where legal rights only were involved. Judgment reversed. All the justices concurring.

(107 Ga. 152)

LEE v. ENGLISH et al. (Supreme Court of Georgia. April 18, 1899.) WIDOW'S AWARD-TRIAL VERDICT.

1. On the trial of an issue formed by objections filed by creditors of a deceased to the return of appraisers setting apart a year's support to the widow, the burden of proof is on the objectors; and, where both parties introduce evidence, counsel for the objectors are entitled to open and conclude the argument.

2. In such a trial, where it appears that the year's support was claimed out of certain personal property and 150 acres of land, a verdict setting aside the personal property, "and fifty acres of land where dwelling house now stands,' was, as to the land, too vague and uncertain to be capable of enforcement.

3. The grounds of the motion for new trial relating to other questions, so far as they are intelligible, are without merit.

(Syllabus by the Court.)

Error from superior court, Twiggs county; a. C. Smith, Judge.

Application by Mrs. Lee for the appoint

ment of appraisers to set aside a year's support. L. B. English and others, creditors of her husband, object. From a judgment for the objectors, the widow brings error. Reversed.

L. D. Shannon and Hardeman & Moore, for plaintiff in error. F. Chambers, for defendants in error.

SIMMONS, C. J. Mrs. Lee applied to the ordinary of Twiggs county for the appointment of appraisers to set aside a year's sup port out of the estate of her deceased hus band. Appraisers were appointed, and made a report which gave her certain personal property and 150 acres of land. Certain creditors of the deceased husband filed in the court of ordinary objections to the report of the appraisers. The case finally reached the superior court by appeal from the court of ordinary.

1. Upon the trial of the case in the superior court, the judge ruled that the burden of proof was upon the objectors, and that they were entitled to the opening and conclusion of the argument. To this, counsel for Mrs. Lee excepted; and the ruling was made one of the grounds of her motion for a new trial, the verdict of the jury having been against her. There is some confusion in the rulings of this court upon the question of the burden of proof, and the right to open and conclude, in cases somewhat similar to this. This particular question, so far as we can ascertain, has never been decided by the court. We can find no decision as to the burden of proof in a case where the objectors to the return of the appraisers were creditors of the deceased husband. In the case of Cheney v. Cheney, 73 Ga. 66, the administrator objected to the return of the appraisers, and this court held that the applicant was entitled to open and conclude the argument. Hall, J., in the opinion of the court, cites several cases where it was held that, in an application for dower which was resisted by the administrator, the applicant was entitled to the opening and conclusion of the argument. But in the case of Robson v. Harris, 82 Ga. 153, 7 S. E. 926, where the widow of a tenant applied for a year's support out of the crop, and the landlord objected to the return of the appraisers on the ground that the title to the crop was in him, under the contract with the tenant, and urged a claim for supplies furnished to the tenant and his family, it was held that the burden of proof was upon the landlord, and that he was entitled to the opening and conclusion. In Gunn v. Pettygrew, 93 Ga. 327, 20 S. E. 328, the decision in Robson v. Harris was followed, and the case of Cheney V. Cheney cited, and construed to mean that the applicant for a year's support is entitled to the opening and conclusion where the objections are filed by the personal representatives of the deceased husband. Section 5160 of the Civil Code declares that: "The burden of proof generally lies upon the party assert

ing or affirming a fact, and to the existence of whose case or defense the proof of such fact is essential. If a negation or negative affirmation be so essential, the proof of such negative lies on the party so affirming it." In the present case it appears that the appraisers had reported to the ordinary that the widow was entitled to 150 acres of land, together with certain personalty,-the whole valued at $903.50. Whether there was a personal representative to administer Lee's estate does not appear. If there was one, he seems not to have objected to the return of the appraisers. The creditors of Lee filed various objections, alleging that the amount set apart was too large, when the size of the estate was considered, and that the property set apart was worth a great deal more than the amount at which it was estimated by the appraisers. Under the ruling in Robson v. Harris, supra, this report was prima facie correct. When it was filed, it became the duty of the ordinary to issue citation and publish notice, citing all persons concerned to show cause why such application should not be granted; and, if no objection was made after the publication of the notice for four weeks, it became his duty to record the return. It will thus be seen that, if no objections had been filed to the report of the appraisers within the time prescribed, that report would have become a judgment concluding all persons interested in the estate. The report be ing prima facie correct, the burden, in our opinion, was upon the objectors to sustain by proof their objections. Had no proof been offered, the court would have been authorized to direct a verdict sustaining the appraisers' report. Their report was analogous to the report of an auditor. The auditor's report is held to be prima facie correct, and those who attack it are entitled to the opening and conclusion, because upon them is the burden of showing its incorrectness. See Culver V. Hood, 97 Ga. 550, 25 S. E. 344, which decided a case originating before the act of 1894 regulating the practice in such cases. The objections to the report alleged that it set apart too large an amount, and that the property set apart was worth more than that amount. Under section 5160 of the Civil Code, the burden lies upon the party asserting a fact; and it was essential that the objectors should establish their objections, in order to overturn the report of the appraisers. It seems clear to us that the burden of proof was upon them. If they failed to make good their objections, the verdict would necessarily have been against them. We think, therefore, that the court was right in holding that the burden of proof was upon them, and that they were entitled to the opening and conclusion of the argument.

2. The appraisers set apart certain personal property,-apparently all of which Lee died seised and possessed,-and 150 acres of land; valuing the whole as above set out. The land was not described by lots, or by metes and

bounds, and, as far as the record discloses, was all of the land Lee owned at the time of his death. The 150 acres were valued by the appraisers at $450,-$3 per acre. On the trial of the objections, the jury returned the following verdict: "We, the jury, agree to give Mrs. N. S. Lee all the personal property set aside by the appraisers, and fifty acres of land where dwelling house now stands." The applicant contended, in her motion for new trial, that the verdict was so vague, uncertain, and unintelligible that no one could understand from its terms the intention of the jury. We think this contention is sound. We are aware that "verdicts are to have a reasonable intendment, and are to receive a reasonable construction, and are not to be avoided unless from necessity" (Civ. Code, § 5332); but, after long and mature reflection, we have come to the conclusion that no judgment or decree could be entered on this verdict so as properly to enforce it. No writ of possession, if such were necessary, could be issued by the clerk, directing the sheriff to put the widow in possession of any particular part of this land. As before remarked, it appears that this was the only land of which the husband died seised and possessed. The verdict gives the widow 50 acres where the dwelling house "now" stands. Whether the dwelling is in the center, at one side, or in a corner of the tract, is not disclosed. The lower court seemed to recognize the uncertainty of the verdict, for it appointed commissioners to run off and survey the land so as to give the widow this 50 acres. Had they undertaken to obey the court's order, they would have been as much at a loss as to how to enforce the verdict as we are. If the dwelling was situated in the middle of the tract, the commissioners could not have known whether to lay off a circle around the house, circumscribing 50 acres, or to include the dwelling, and run off 50 acres towards one side or corner of the tract. They could not possibly have determined from the verdict what was the intention of the jury as to the location of the 50 acres. They might have given to the widow an entirely different portion of the land from that intended by the jury. They might have run a strip containing 50 acres through the center of the tract, and left two 50-acre lots, some on either side of this strip, entirely separated from each other; and such a division might have rendered these portions much less valuable. With the dwelling in another portion of the tract, similar difficulties would arise in endeavoring to arrive at the intention of the jury. Therefore, giving to the verdict every reasonable intendment, we still think it is so vague and uncertain that it cannot be enforced. Upon this ground alone we order a new trial.

3. The other grounds of the motion for new trial we do not pass upon separately. One of them complains of the admission of evidence, without stating what objection was

made thereto. Some of the others, as transcribed in the record, are wholly or partially unintelligible. In some of the grounds, words have been left out, and others inserted, so that we cannot with certainty arrive at their meaning. Counsel should have examined this record, either before or after it came here, and have made a motion to have it corrected. Inasmuch as they did not do so, we must decline to pass upon those grounds whose meaning is uncertain. As far as we tan understand them, they are without merit. Judgment reversed. All the justices concurring.

(106 Ga. 850)

JONES v. DANIEL. (Supreme Court of Georgia. April 19, 1899.) PREMATURE APPEAL.

Though the losing party on the trial of a special issue as to the genuineness of a deed offered in evidence on the trial of an action of ejectment may file a motion for a new trial, and except to a judgment denying such motion, that judgment cannot be reviewed in this court while the ejectment, or main, case is still pending in the court below. If the final disposition of the main case should be postponed beyond the term at which the special issue was tried, and such a motion should be made and overruled during that term, the movant could except pendente lite, and bring the question here after the entire case was at an end in the trial court. When, however, the verdict upon the trial of the collateral issue is against the genuineness of the deed, and the party tendering it cannot, with this issue determined against him, establish his right to recover, or his defense, as the case may be, he should at once submit to a verdict, and then bring up the whole case.

(Syllabus by the Court.)

Error from superior court, Bibb county; W. H. Felton, Jr., Judge.

Action by Betsy Clark against Ben L. Jones. Judgment for plaintiff and defendant brings error. On death of plaintiff, Minnie Daniel, executrix, was substituted. Dismissed.

Anderson & Jones, for plaintiff in error. Smith & Jones, for defendant in error.

SIMMONS, a J. Betsy Clark brought against Jones an action of complaint for land. At the close of the evidence introduced by the plaintiff, Jones moved for a nonsuit, which was refused by the court. Jones excepted. Jones then offered a deed, which purported to have been made by the plaintiff, and under which he claimed. Plaintiff filed an affidavit that the deed was a forgery, whereupon an issue was made up and tried by jury. The verdict was that the deed was a forgery. Jones moved for a new trial of this collateral issue, the motion was overruled, and he excepted. He now brings his bill of exceptions to this court, seeking a reversal of these rulings. When the case was called here, counsel for the defendant in error moved to dismiss the writ of error because the case was prematurely brought to this court, the main case not having been tried in the court below, but

still pending there. It seems that, when the issue of forgery was decided against the defendant by the jury, he did not submit to a verdict in the original case of complaint for land, but this latter case was postponed or continued, and is still pending in the court below. Section 5526 of the Civil Code provides, in substance, that no cause shall be brought to this court until after a final disposition of the case in the lower court, unless the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause, or final as to some material party thereto. It also provides that at any stage of the cause either party may file his exceptions to any decision, sentence, or decree of the court, and, if the same is certified and allowed, it may be entered of record in the cause; and should the case, at its final determination, be brought here by writ of error, such exceptions may be brought here with the record and error assigned thereon. The original case not having been finally disposed of in the court below, and the finding of the jury in the issue of forgery not being a final disposition of the main case, it seems to us that the above-cited section of the Code controls, and that the case is here prematurely. We do not know, nor can we determine from the record, that the finding of the jury on the issue of forgery would be final in the trial of the main case. It may be that Jones, the defendant, had other defenses or other deeds on which he might have relied. One missing link in the chain of a defendant's title, or the exclusion of one of his deeds from evidence, does not always prevent a verdict in his favor. He may have other defenses, such as prescription, adverse possession under a claim of right, etc. At any rate, the exclusion of this particular deed as a forgery is not shown to be a final disposition of the main case, and, as we have seen, no case can be brought here until there is a final disposition of it in the court below, or a judgment which, if it had been made as claimed, would have finally disposed of the case.

It is argued, however, that the defendant in the court below had the right, under section 5474 of the Civil Code, to move for a new trial on this collateral issue, and that the judge had power to grant or refuse it, and that, inasmuch as he did refuse, a bill of exceptions lies to that refusal before a final determination of the main case. We think that this cannot be done under the section of the Code just cited, when taken in connection with that first set out. While the defendant had a right to move for a new trial upon the collateral issue, and the court had power to pass upon the motion, the ruling cannot be brought to this court for review until a determination of the main case. This court passed upon such a motion in the case of Vance v. Gamble, 95 Ga. 730, 22 S. E. 576, but the record there showed that, after the deed had been declared a forgery by the jury, a nonsuit was awarded, which was a final disposition of the main

case.

The trial judge granted, in that case, a new trial as to the collateral issue, and this court directed that the main case should be reinstated. If this deed, found to be a forgery, was the only defense the defendant had, the better practice would have been for him to have so announced to the judge and to have submitted to a verdict. Had he done so, then we could have entertained his motion for a new trial upon the collateral issue, for it would have been a final disposition of the case in the court below. If he relied upon other defenses also, he could have proceeded with the trial of the case, and, if he had lost it, he could have made a motion for a new trial in the main case and the collateral issue as well, if it had not been passed upon prior thereto, and then, in one bill of exceptions, brought to this court the decisions of the judge in overruling both of these motions. If it had been for any reason impracticable to dispose of the main case during the term at which the collateral issue was tried, he could have made his motion for a new trial on the collateral issue, and, when the judge overruled it, excepted pendente lite. Then, whenever the main case was disposed of and brought here, he could have had these exceptions incorporated in the record, and assign error on them. This same question was decided by this court in the case of Herrin v. Grannis, 40 Ga. 581.

It is further claimed that this writ of error should not be dismissed, for the reason that there is an exception with which this court can deal, namely, that the court erred in refusing to grant a nonsuit at the conclusion of the plaintiff's evidence. Having shown that this court cannot review the refusal to grant a new trial upon the collateral issue, as brought up in this bill of exceptions, the only question remaining is as to whether it can entertain a writ of error where the sole error complained of in the bill of exceptions is that the court erred in refusing to grant a nonsuit, while the case is still pending in the court below. We think not. In the case of Railroad Co. v. Denson, 83 Ga. 266, 9 S. E. 788, this court held that if a bill of exceptions is "predicated solely on the refusal of the judge to grant a nonsuit, where, after such refusal, the case proceeded to trial, and a mistrial [was] had, a motion to dismiss it in this court would prevail." In the opinion it was said: "Where a motion to nonsuit is made in the court below, and is overruled, and the case proceeds to trial, and a mistrial is had, we do not think the defendant has a right to file a bill of exceptions, and bring the case here upon that ground alone." It is true that, in the case just cited, the writ of error was not dismissed, but the reason was that the bill of exceptions complained of the overruling of a demurrer to the declaration, which, if the demurrer had been sustained, would have been a final disposition of the case. This bill of exceptions is not like that. It contains no ground at all which this court can consider, and we are compelled to

dismiss it, as was done in the case of Railway Co. v. Tennant, 98 Ga. 156, 26 S. E. 481, which is controlling here. Writ of error dismissed. All the justices concurring.

(106 Ga. 853)

CRAYTON et al. v. FOX. (Supreme Court of Georgia. April 19, 1899.) EXECUTION-AFFIDAVIT OF ILLEGALITY-DIRECTING VERDICT.

Where an affidavit of illegality has been filed by two defendants to the levy of a fi. fa. issued upon a judgment against them, founded upon a suit on a joint and several promissory note of which they were makers, on the ground that neither of defendants was served, and where the uncontradicted evidence upon the trial of this issue shows that one of the defendants had been duly served and the other had not, it was not error for the court to direct a verdict that the fi. fa. proceed only as to the party thus shown to have been duly served. (Syllabus by the Court.)

Error from superior court, Hancock county; S. Reese, Judge.

Action by Ellen Fox against George and Charlie Crayton. Judgment for plaintiff. On levy of execution, affidavit of illegality was filed. Verdict in favor of one defendant and against the other, and defendant against Afwhom verdict was directed brings error. firmed.

Wm. H. Burwell, for plaintiff in error. Hunt & Merritt and T. L. Reese, for defendant in error.

LEWIS, J. A judgment was rendered in the county court of Hancock county in favor of Ellen Fox, executrix, against George and Charlie Crayton. This judgment was founded upon a suit on a joint and several promissory note signed by both defendants, in which note it was stated that "we, or either of us, promise to pay," etc. An execution was issued, and levied on certain property as the property of the defendants. To this levy an affidavit of illegality was filed by both defendants on the ground that they had not been served, and a return of the sheriff on the original writ, showing service, was traversed. The case was appealed to the superior court, and on the trial there it appeared from the testimony that the sheriff had left two copies of the writ at a certain house, which he presumed was the home of both defendants, but the testimony showed it was the home of only one defendant, and not of the other. The court instructed a verdict in favor of the plaintiff against the defendant who was served, and in favor of the illegality so far as the other defendant was concerned, and directed that the fi. fa. proceed as to the defendant duly served. A motion for a new trial was made by the defendant against whom the verdict was directed, in which error is assigned on this direction given by the court. To the judgment of the court overruling the motion for a new trial the movant excepts.