Under the terms of the contract sued on in the county court, manifestly the payee or holder of the note had the discretion to sue either one of the makers or to bring an action against both. It follows from this that, having brought suit against both, it was at his discretion pending the action to dismiss the suit as to one and proceed alone against the other. In the case of Stanford v. Bradford, 45 Ga. 97, it was decided that: "In a joint suit against several, if one be not served, the plaintiff may dismiss as to the one not served; and, if he go to the jury, and get a verdict, the verdict is good against those served, though there be a failure to dismiss against the defendant not served. The defect is a mere irregularity, and does not make the judgment void." We do not think, therefore, that the defendant served, even if he had appeared in court, and so pleaded, had the right to object to the case proceeding to judgment against him, simply because his codefendant had not been served. But conceding, for the sake of the argument, that he had such right, he did not avail himself of it, and is now seeking to go behind the judgment by setting up a defense which he could have availed himself of before the rendition of the judgment. Under section 4742 of the Civil Code, this cannot be done by an affidavit of illegality. Judgment affirmed. All the Justices concurring.

(106 Ga. 855)

DUGGAN v. LAMAR. (Supreme Court of Georgia. April 19, 1899.) ADMINISTRAtor-Bond - APPOINTMENT OF CLERK OF COURT.

1. When a person dies intestate and without beirs, leaving an estate more than sufficient to pay his debts, the county school commissioner and treasurer of the public school funds in the county of the residence of the deceased has such an interest, in his official capacity, as distributee of such estate, as will entitle him to maintain a proceeding before the court of ordinary instituted for the purpose of requiring the administrator on such estate to give bond.

2. Where the clerk of the superior court has by the ordinary been appointed administrator of an estate, it is the duty of the ordinary upon the application of any one interested in the estate, as creditor, distributee, or legatee, to require the administrator to give bond or be removed, there being no liability on the official bond of the clerk for his acts and doings as administrator, provided the petitioner in such application for bond presents the name of some fit and proper person who is willing to take the administration, and who will give bond and security as such administrator.

(Syllabus by the Court.)

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

Action by M. L. Duggan, county school commissioner, praying that Thomas R. Lamar, administrator of the estate of one Babcock, might be compelled to give bond as such.

From a judgment affirming an order sustaining a demurrer to the petition and dismissing it, plaintiff brings error. Reversed.

SIMMONS, C. J. M. L. Duggan filed his petition to the court of ordinary, alleging that he was the county school commissioner of Hancock county, and treasurer of the school funds of that county, and that he had qualified as such, and given bond for the faithful discharge of his duties; that one Babcock had died in the county of Hancock, intestate, leaving a considerable estate, and no heirs; that the said estate consisted of personal property; that the estate would become a part of the school fund of the county; and that he, as treasurer of the school fund, was the only person interested, as distributee or otherwise. He set out the value of the estate, and the appointment of Lamar, the clerk of the superior court, as administrator, by virtue of his office as such clerk, and alleged that Lamar had been required to give no bond as administrator, and had given none, although he had taken possession of the estate, and had sold a part of the same. He prayed that Lamar be required to give bond as provided by statute in such cases, or, in default thereof, that he be removed as administrator. The petition named Duggan himself as a fit and proper person to be appointed administrator, and alleged that he was able and willing to take the administration and give the bond required by law. At the hearing of the case before the ordinary, Lamar demurred, and, for cause of demurrer, said that "petitioner shows no right or interest either to the relief sought or to any other relief," and that "the board of education of Hancock county, or the county school commissioner, who is the petitioner in this case, have nothing to do with the matter. If the Babcock estate escheats, it escheats to the state, and not to the board of education of Hancock county, nor to the commissioner of education of said county." This demurrer was sustained by the ordinary, whereupon the petitioner appealed to the superior court. There the trial judge likewise sustained the demurrer and dismissed the petition, to which judgment exception was taken.

Section 3373 of the Civil Code provides that: "Where any person is appointed administrator ou any estate without being required to give bond and security, any person interested in such estate, as creditor, distributee or legatee, may require the person so appointed administrator to give bond and security as administrator, and in default thereof be removed; provided, the person moving to have the bond and security given or the administrator removed shall present the name of some fit and proper person who is willing to take the administration and who will give bond and security as such administrator." Section 3578 declares: "The proceeds of escheated property shall be paid, in each county, to the ordinary or other treasurer of the

purpose of testing the validity of conveyances made by insolvent debtors. It was accordingly held in the case of Haralson v. Newton, 63 Ga. 163, that: "A pretended sale by a debtor for the purpose of avoiding his creditors does not render the interposition of a court of equity necessary, especially where discovery is waived. Attachment will lie, under Code, § 3297." To the same effect, see Comer v. Coates, 69 Ga. 491; Coates v. Allen, 71 Ga. 787; Stephens v. Whitehead, 75 Ga. 297. This court has not only recognized the ample relief given by this fraudulent debtor's act touching all fraudulent conveyances or liens created by the debtor on his property, but, by the decisions cited, has actually invited creditors to seek this relief when they wish such transactions investigated by the courts, and since the passage of that act has declined to open the doors of a court of equity to them for such a purpose. When the judge grants an order directing the attachment to issue, this order becomes a judicial act, and the issuing of the attachment by the clerk is merely ministerial. In this case, however, it seems, the judge himself issued this attachment in the petitions and affidavits in support thereof. This renders the act of the judge issuing the attachment judicial and not ministerial. See Loeb v. Smith, 78 Ga. 504, 3 S. E. 458. But it is obvious that the benefits intended by the act, and the pur poses for which it was passed, could never be accomplished unless it was contemplated that the identical property alleged to have been fraudulently conveyed should be seized under the attachment by the officer in whose hands it was placed for execution. In the case of Falvey v. Adamson, 73 Ga. 493, it appeared that an attachment was sued out against a debtor on the ground that he was making, or had made, and was about to consummate, a fraudulent transfer of his property to his father for the purpose of defeating his creditors, and that an attachment was levied on the property, and a claim interposed by the father. In the opinion, delivered by Justice Hall, on page 496, in speaking of the effect and purposes of this statute, he says: "The statute in question evidently contemplates that the plaintiff shall have power to reach property so situated, and in that connection it provides a mode and a tribunal by which the defendant may summarily traverse the ground upon which the attachment issued." Again, in the case of Manheim v. Claflin, 81 Ga. 134, 7 S. E. 285, the following quotation is taken from the opinion of Chief Justice Bleckley: "As to the goods in another store,-those not included in the mortgages, and which were sold fraudulently by Manheim, the debtor,-they were subject to attachment, under section 3297 of the Code. The statute embraced in that section was passed for just such a case,-a case in which the creditors have no judgment, and no lien by contract, and the bill suggests no obstacle to the use of the attachment remedy." We conclude, therefore, that when such an attachment is issued by the judge of the

superior court, or when he grants an order for it to issue, his act is not only judicial, but it bears with it the special mandate to levy upon the particular property which the creditor is seeking to subject, and which he alleges to have been fraudulently conveyed to another person.

2. If we have given above a proper construction of such an exercise of the judicial power vested in the judge of a superior court by the general assembly, then it necessarily follows that the sheriff cannot be guilty of a wrong or an act of trespass for obeying the mandate of the court, it matters not how valid may be the conveyance attacked. There is a vast difference between attachments of this sort and those that issue in ordinary cases,generally against all the property of a debtor. When a fi. fa. issues upon a general judgment, or an attachment issues in ordinary cases, the officer is simply commanded to levy and seize generally property of the defendant, and when he acts he does so at his peril; and if he seizes property of a person other than the defendant, and thereby causes injury to an innocent party, he and all parties acting with him in procuring such a sẻizure are liable as joint trespassers. The attachment that issues under the fraudulent debtor's act is of a dual nature. It proceeds generally against all the property of a defendant, and, when the sheriff levies on property other than that described in the petition, he does so at his peril; but, when he seizes that specified in the proceedings, he is protected by the mandate of a judgment of court. We think, therefore, that as to such property this attachment is analogous to a mortgage fi. fa., or to any other process of court that directs a seizure of specified property. In such cases the officer has no discretion but to execute the process, and while he holds possession legally thereunder he is not liable to be sued either for trespass or in trover by the true owner. Wallace v. Holly, 13 Ga. 389; Chipstead v. Porter, 63 Ga. 220. are correct in the above conclusions, it necessarily follows that there was no cause of action in this suit against the sheriff; and, he being the only resident of the county where the suit was pending, an absence of a cause of action against him, of course, deprives the court of any jurisdiction over the remaining defendants.

If we

3. It is contended, however, by counsel for defendants in error, that there was no error in striking the plea to the jurisdiction, as it set up matter that had been adjudicated against the defendants when their demurrer was overruled, and that the exceptions to the demurrer in the record are not in such shape as to be subject to review by this court. is not necessary for us to determine whether, under the facts presented by the record, we can review the exceptions taken to the judgment overruling the demurrer. It is a suffi cient reply to the contention of counsel for defendants in error that in their action for

It

damages the character of the process levied upon the goods they claimed was not set forth in their petition, and therefore could not have constituted

a ground for demurrer;

hence the plea to the jurisdiction set up new facts, and presented a new issue, upon which the defendants were entitled to introduce testimony, and which, if true, established the want of jurisdiction in the court to try the case. The judge therefore erred in striking the plea to the jurisdiction. We think he also erred in overruling the motion to nonsuit the case after the plaintiffs had closed their testimony and the facts above stated had been developed. We do not mean to say that an action would not lie against attaching creditors, proceeding under the fraudulent debtor's act, for a malicious prosecution or an abuse of civil process. We question very much, however, the power of any other court to entertain such an action as has been instituted in this case before any final disposition has been made in the attachment proceedings; and the more especially in a case where the property in the hands of the attaching officer has, by an order of a court of competent jurisdiction, at the instance of other creditors of the defendant, been placed in the hands of a receiver appointed in a case to which all persons in interest are parties, and in which an issue is directly made touching the validity of the conveyance which was the foundation of the action against these plaintiffs in error.

There are other interesting and important questions of law involved in the grounds of error assigned in the motion for a new trial, but it is unnecessary to consider them, as the principles of law announced in the headnotes control the case. Judgment reversed.

(107 Ga. 238)

THOMPSON v. DAVISON et al. (Supreme Court of Georgia. April 20, 1899.) APPEAL-NEW TRIAL-REVIEW.

An exception to a judgment granting a new trial, unless the prevailing party complies with a specified condition, will not be considered by this court, when the plaintiff in error makes it appear on the argument here that, because of the failure of the opposite party to avail himself of the condition, a new trial has actually resulted.

(Syllabus by the Court.)

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

Action by Davison & Fargo against John Thompson. Judgment for plaintiffs, and defendant brings error. Dismissed.

P. B. Johnson and E. P. Davis, for plaintiff in error. Thos. E. Watson and J. Whitehead, for defendants in error.

LUMPKIN, P. J. On the trial of an action brought by Davison & Fargo against John Thompson, there was a verdict for the plaintiffs.

The defendant filed a motion for a new trial, upon the hearing of which it was ad

judged that a new trial be granted unless the plaintiffs should, within 30 days, write off a specified amount of their recovery, and, in the event of their so doing, that a new trial be denied. It does not appear from the record whether the plaintiffs did or did not comply with the condition above named. The defendant sued out a bill of exceptions, alleging that the court erred in not granting a new trial unconditionally. In the brief of his counsel filed in this court, we find the following: "In looking over the papers, I notice the amount specified by Judge Reese to be written off the verdict was never written off. Brother Whitehead said he would do it, and, had he lived, he would have done so. On his statement I considered it, in effect, written off. I am willing to consider it written off, provided attorneys for defendants in error agree to do so, and do so write it off." From this admission it appears that, as no portion of the verdict was actually written off within the time limited, the plaintiff in error stands in precisely the same position he would have occupied had the court granted a new trial unconditionally, in which event he would have had no right to bring the case here. We shall, therefore, not attempt to deal with any of the questions made in the motion for a new trial, but will dismiss the writ of error, without prejudice to the rights of either party as fixed by the judgment of the court below. Writ of error dismissed.

(107 Ga. 237)

CARR v. TATE. (Supreme Court of Georgia. April 20, 1899.) TORTS OF EXECUTOR-LIABILITY OF ESTATE.

The estate of a testator is not liable for tortious acts of the executor committed in the administration of the estate, when no pecuniary advantage resulted to the estate by reason of such tortious acts.

(Syllabus by the Court.)

Error from city court of Elberton; P. P. Proffitt, Judge.

Action by M. M. Carr against E. B. Tate, executor. From an order sustaining a demurrer to the complaint, plaintiff brings error. Affirmed.

Jos. N. Worley, for plaintiff in error. I. C. Van Duzer and W. D. Tutt, for defendant in

error.

SIMMONS, C. J. Mrs. Bowman died testate, making Tate her executor. Carr was indebted to the testatrix, and, after her death. gave to the administrator a note to cover this indebtedness, and a mortgage on his stock of goods to secure the note. This note was made July 6, 1897, and was due one day after date. In the early part of the following October, the mortgage was foreclosed, and a levy made upon the stock of goods. The levy was stopped by an affidavit of illegality filed by Carr. It seems from the record that Mrs. Bowman, the testatrix, before she died, had owed Carr an