amount greater than that for which he gave the note and mortgage, and that, before the executor foreclosed the mortgage, Carr had commenced an action to recover this amount from the estate. Subsequently, the petition in the present case alleges, Carr did get judgment against the estate for a sum greater than that he owed the executor. He brought this action against the executor, asking that damages be awarded him, and alleging, in addition to the foregoing facts, that he was greatly damaged by the foreclosure of the mortgage, and the levy upon his goods. The petition set out a number of items of special damage, and alleged that the action of the executor in foreclosing the mortgage and having it levied was malicious, and without probable cause. The executor demurred to the petition. After hearing argument, the court sustained the demurrer, and dismissed the petition. The action was brought against Tate as executor of Mrs. Bowman. We think that the estate of the testatrix was not liable for any tort of which the executor may have been guilty, unless the estate received the fruits of the tortious act. Even if the acts set out in the declaration were tortious, the estate could not be held liable, no pecuniary gain having resulted to it. Anderson v. Foster (Ga.) 32 S. E. 373; Parker v. Barlow, 93 Ga. 700, 21 S. E. 213; 7 Am. & Eng. Enc. Law (1st Ed.) p. 344; 2 Williams, Ex'rs (7th Am. Ed.), notes to top page 352; Thompson v. Canterbury, 2 McCrary, 332, 12 Fed. 485; Herd v. Herd, 71 Iowa, 497, 32 N. W. 469; Lamorere v. Succession of Cox, 32 La. Ann. 246. Judgment affirmed. All the Justices concurring.

An appeal affidavit in forma pauperis, made since the act approved December 21, 1897 (Acts 1897, p. 32), which states that, "owing to his poverty, [the appellant] is unable to pay the costs and give the security as required by law in cases of appeal," is fatally defective; and it is not error for the court to refuse to allow an amendment offered by appellant to strike the word "and," and substitute the word "or" therefor, in his affidavit, it appearing that the use of the word "and" in the original affidavit was not unintentional, but was simply the result of ignorance of law on the part of the appellant or his counsel. (Syllabus by the Court.)

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

Action by J. D. Shumate and others against R. S. Truitt. From an order dismissing an appeal to the superior court, defendant brings

SIMMONS, C. J. Prior to the act of 1897 (Acts 1897, p. 32), the law required a party who desired to enter an appeal in forma pauperis to make an affidavit, before he entered his appeal, that he was, owing to his poverty, "unable to pay the costs and give the security required by law in cases of appeal." Civ. Code, § 4465. The general assembly amended this section of the Code by striking therefrom the word "and," and inserting the word "or," so as to make this portion of the affidavit read: "Owing to his poverty, he is unable to pay the costs or give the security required by law in cases of appeal." This act was approved on December 21, 1897. The appeal in the case now under consideration was entered, and an affidavit made in accordance with the terms of the Code, as of force before the passage of the act of 1897; the affidavit being made April 28, 1898, some four months after the approval of the act. When the case was called in the superior court, a motion was made to dismiss the appeal because the affidavit did not follow the act of 1897; it containing the word "and" where that act requir ed the word "or." The appellant offered to amend the affidavit so as to make it conform to the act, and offered to swear to it as amended; asking leave to show "that his intention at the time of appeal was to comply with the law, and that the form of the affidavit was by mistake upon his part." The court refused to allow him to amend, and dismissed the appeal. The appellant excepted.

Section 5124 of the Civil Code provides that, "where material words are omitted by accident or mistake in an affidavit to appeal in forma pauperis, such omission is amendable." As far as appears from the record in this case. no material word in the affidavit was omitted by accident or mistake. The appellant simply used the old form of affidavit instead of the new, and his application to amend was not to supply omitted words, which had been left out by accident or mistake, but to substitute one word for another. Had the appellant left out any one of the words of the affidavit by accident or mistake, intending at the time the affidavit was made to use that word, he could, under the section cited, have supplied it upon proper showing. For instance, had the words "from his poverty" been unintentionally omitted, he could have supplied them. The Code does not seem to contemplate the substitution of one word for another, certainly not where the affiant did not intend, at the time of making the affidavit, to swear to the word proposed to be substituted for the word actually used. Here it does not appear affirmatively that the appellant offered to show that he intended to use the word "or" instead of the word "and," and that "and" was unintentionally written for "or." It is true he says he intended to comply with the law, but he does not show that he knew what was the law at the time he made the affidavit. His explanation is not inconsistent with the hypothesis that his use of the wrong word arose from

Ignorance of law, and not mistake of fact, and we think the section cited above relates only to mistakes of fact. We suspect the truth to be that the appellant, in preparing his affidavit, followed the old form, and was not aware that the general assembly had made any change. If this be true, he could not conscientiously have stated that he intended in making the affidavit to use the word "or" instead of "and," but could have stated, as he asked leave to do, that he intended to comply with the law. This showing is, in itself, an Intimation that he thought he was complying with the law when he made the affidavit in the form he used, having found it in the Code, and being unaware of the change made. We therefore agree with the trial judge that it was not such an accident or mistake as was amendable under the above-cited section of the Code. Judgment affirmed. All the justices concurring.

(108 Ga. 760)

EQUITABLE SECURITIES CO. v. WORLEY.

(Supreme Court of Georgia. April 20, 1899.) NEW TRIAL-SUFFICIENCY OF EVIDENCE-APPEAL.

1. The overruling of a demurrer to a petition, even if erroneous, is not a proper ground of a motion for a new trial.

2. This court will not disturb a judgment denying a new trial when the only grounds of the motion therefor which can be considered are that the verdict was contrary to law and the evidence, and it appears that there was sufficient evidence to warrant the finding of the jury.

(Syllabus by the Court.)

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

Action by the Equitable Securities Company against G. A. Worley. From a judgment denying a new trial, plaintiff brings erAffirmed.

ror.

SMITH v. CULPEPPER. (Supreme Court of Georgia. April 20, 1899.) CONDITIONAL SALE-ACTION FOR PRICE - FAILURE OF CONSIDERATION.

It was, upon the trial of an action upon a promissory note given for the purchase of a mule, and on its face reserving in the seller the title to the property until paid for, erroneous to strike a plea alleging that the mule had died without any fault or negligence on the part of the defendant, and praying for a rescission of the contract of sale, there being no stipulation therein that the purchaser was to be liable in case the mule died. Civ. Code, § 3543.

(Syllabus by the Court.)

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

Action by Lenora Culpepper against Nancy 33 S.E.-4

BRUMBY v. HARRIS. (Supreme Court of Georgia. April 20, 1899.) MUNICIPAL IMPROVEMENTS-ASSESSMENT-ILLEGAL

SALE-ACTION TO SET ASIDE-PARTIES.

1. Where a city tax fi. fa., issued upon an assessment of a certain lot for street improvements, describes the property to be levied upon as "a certain city lot in the city of Atlanta, fronting 20 feet on Georgia avenue, said lot being known as 'Number 201' on said Georgia avenue, according to the street numbers," and the defendant in fi. fa. named in the execution is other than the party in possession or the owner of said lot, a levy and sale by the offcer of a lot fronting 47 feet on the named avenue, without any notice to the owner or to the tenant in possession of the land levied on, is void.

2. Under the Code, a creditor of the real owner of the property thus sold, whose claim is secured by a deed, may institute an equitable proceeding to assert his special lien upon the property, and to set aside the sale on the ground of illegality, and for such purpose it was proper for him to make parties defendant both his debtor and the party claiming title under the sale. The petition in this case was therefore not demurrable either on account of multifariousness or of a misjoinder of parties. (Syllabus by the Court.)

Error from superior court, Clarke county; N. L. Hutchins, Judge.

Action by B. Y. Harris, administrator, against T. M. Brumby. Judgment for plaiu tiff. Defendant brings error. Affirmed.

Lumpkin & Burnett and W. I. Heyward, for plaintiff in error. T. W. Rucker, for defendant in error.

SIMMONS, C. J. It appears from the record that Mrs. Arabella H. Brumby in July,

1889, borrowed from Hugh N. Harris the sum of $1,500, and, to secure the payment of the same, made and executed to him a deed to a certain city lot in the city of Atlanta. The authorities of the city of Atlanta had the street on which this lot was situated paved, and assessed Mrs. Brumby for her portion of the assessment. The lot fronted 47 feet on the street, with a depth of about 140 feet. It appears that Mrs. Brumby failed to pay this assessment, and on August 5, 1892, the clerk of the city council of Atlanta issued a fi. fa. against the lot and "Mrs. Ada Brumby," directing the marshal of the city to levy upon and sell "a certain city lot in the city of Atlanta, fronting 20 feet on Georgia avenue; said lot being known as 'Number 201' on said Georgia avenue, according to the street numbers." According to the entry of levy made by the marshal, this land was "levied on, as the property of Mrs. Ada Brumby, to satisfy a fi. fa. in favor of the city of Atlanta against said lot and against said Mrs. Ada Brumby." There was also an entry of service on the tenant in possession on October 24, 1892. Under this execution, the marshal sold the entire lot, fronting 47 feet on the street. On the day of the sale the property was purchased by Venable Bros., who, just before the expiration of the right of redemption, sold the property to T. M. Brumby. Harris seems to have had no knowledge of any of these proceedings. He claimed that inasmuch as the execution, the levy, and the advertisement designated the property as that of Mrs. Ada Brumby, while his deed was from Arabella H. Brumby, he could not have been put upon notice that it was his land which was advertised for sale. Upon ascertaining the facts, he filed an equitable petition in the superior court of Clarke county, where Mrs. Brumby resided, against her and T. M. Brumby, praying that the sale be set aside upon the ground that the marshal exceeded his power in levying upon 47 feet on the street, when the execution directed him to levy upon 20 feet only, that no notice was given either to the owner or to the tenant in possession of the property, and that the levy was excessive. Venable Bros., who purchased at the tax sale, and Loid, the marshal who sold the land at that sale, were not made parties; but no objection was made on the trial upon this ground, the only demurrer being on the ground that the petition was multifarious, because it sought to obtain a judgment on a note against Mrs. Brumby, and to cancel the deed made by Venable Bros. to T. M. Brumby, and also that there was a misjoinder of parties. On the trial of the case the jury returned a verdict rendering judgment upon the note, and canceling the deed made by Venable Bros. to T. M. Brumby. A motion for a new trial was made by the latter, and was overruled by the court. Movant excepted.

1. The levy and sale by the marshal of

47 feet on the street, when the execution directed him to levy upon 20 feet only, was clearly illegal. He had no power or authority under this fi. fa. to levy upon any 47-foot lot, and the levy upon such a lot rendered the sale void. The assessment was for the improvement of that particular property, and the execution issued against that property. Assessments for the improvement of a street are sustained by courts only because of benefit to the particular property, and the executions issued therefor do not run generally against the other property of the owner, not situated upon the street. Hayden v. City of Atlanta, 70 Ga. 817, 822; Speer v. Mayor, etc., 85 Ga. 49, 11 S. E. 802. We think, therefore, that the sale was void, and was rightly so declared at the instance of Harris, who had no notice thereof, and who held the legal title to the property.

2. Under the procedure act of 1887 (Civ. Code, § 4833 et seq.), the superior court has jurisdiction, in one proceeding, to enforce legal and equitable rights and remedies. Therefore, where a petition seeks judgment upon a note, and a special lien upon land, against one who conveyed the land to secure the payment of the note, and also against one who had purchased under a void tax sale, the petition is not demurrable on the ground of multifariousness. The court had jurisdiction to render a common-law judgment upon the note, and decree a special lien upon the land, and also jurisdiction to set aside a void sale and cancel the deed made pursuant thereto. De Lacy v. Hurst, 83 Ga. 223, 9 S. E. 1052. For this purpose it was proper and necessary to join Mrs. Brumby and T. M. Brumby in the action. If the sale was void, the title was still in Mrs. Brumby; but it was necessary to have T. M. Brumby a party, because he holds the deed of the marshal, or rather of the party who bought from the marshal. As before stated, no objection was made to the proceeding on the ground that Venable Bros. and the marshal were not made parties. The question not having been made in the court below by the defendants, this court will not make it here. Judgment affirmed. All the justices concurring, except COBB, J., disqualified.

(107 Ga. 324)

COKER v. EVITT. (Supreme Court of Georgia. April 21, 1899.) TRIAL SUBMISSION OF ISSUES.

When a case turns upon a single question of fact, and the evidence bearing upon it is so conflicting as to render the result doubtful, it is erroneous and misleading to submit to the jury, as a disputed issue, a material matter, concerning which there was no controversy whatever between the parties. (a) An error of the nature above indicated requires a new trial in the pres

ent case

(Syllabus by the Court.)

Error from superior court, Walker county; W. M. Henry, Judge.

Claim case between E. A. Coker and C. W. Evitt. From the judgment, Coker brings error. Reversed.

R. M. W. Glenn and Lumpkin & Shattuck, for plaintiff in error. Copeland & Jackson, and C. P. Gorec, for defendant in error.

LUMPKIN, P. J. This was a claim case, which resulted in a verdict finding subject the property levied on. The only issue contested at the trial was whether or not a deed from the defendant in execution to the claimant, under which she asserted title, was, with her knowledge, made for the purpose of defrauding his creditors. There was not a particle of evidence to show that this was a purely voluntary conveyance, and the instrument itself recited a valuable consideration. Nevertheless the trial judge submitted to the jury, as if it were a disputed issue, the question whether or not the deed was wholly without consideration. This was obviously erroneous, and calculated to mislead the jury. It follows, the case being a close one upon its facts, that the claimant is entitled to a new trial. Judgment reversed. All the justices concurring.

(107 Ga. 325)

DIETZ v. FAHY.

(Supreme Court of Georgia. April 21, 1899.) BILL OF EXCEPTIONS-TIME OF OFFERING.

The law embodied in section 5539 of the Civil Code does not, in any case, authorize delay in tendering to a trial judge a bill of exceptions alleging error in a judgment, rendered during a given term, for more than 30 days after the final adjournment of the court for that term.

(Syllabus by the Court.)

Error from city court of Floyd; G. A. H. Harris, Judge.

Action between Thomas Fahy and A. Dietz. From the judgment, Dietz brings error. missed.

Dis

Henry Walker, for plaintiff in error. Rowell & Rowell, for defendant in error.

LUMPKIN, P. J. This case was tried at a term of the city court of Floyd county which did not adjourn within 30 days from the beginning thereof. The bill of exceptions, though tendered within 60 days of the decision complained of, was not tendered until after the expiration of more than 30 days from the final adjournment of the court for that term. It follows, under section 5539 of the Civil Code, which embraces the provisions of the act of February 25, 1875, amending section 4252 of the Code of 1873, and prescribing the time within which bills of exceptions shall be tendered (Acts 1875, p. 24), that the writ of error must be dismissed. In construing that act, this court, in Forsyth v. Preer, 64 Ga. 281, held that the same did "not In any case extend the time for bringing cases to this court on writ of error beyond 30 days from the adjournment of the supe

rior court, and a bill of exceptions not signed and certified within thirty days from the adjournment of the court will be dismissed." This decision was subsequently followed in Huff v. Brantley, 66 Ga. 599. The law applicable to the superior court is, of course, controlling in cases disposed of by city courts, whose decisions are directly reviewable here. Writ of error dismissed. All the justices concurring.

(108 Ga. 763)

DUNN v. PATTERSON. (Supreme Court of Georgia. April 21, 1899.) CERTIORARI TO JUSTICE-REVIEW.

1. Allegations in a petition for certiorari, assigning error in certain rulings made by the magistrate during the trial of a case before a jury in a justice's court, will not be considered by a reviewing court unless the grounds of error are verified by the magistrate in his answer to the petition.

2. The testimony, as reported in the answer of the magistrate to the petition for certiorari, fails to show that the verdict was either illegal or contrary to the evidence, and the judge of the superior court did not err in overruling the certiorari.

(Syllabus by the Court.)

Error from superior court, Catoosa county; A. W. Fite, Judge.

Action between M. T. Dunn and J. S. Patterson, magistrate. M. T. Dunn brings certiorari, and from an order overruling the same brings error. Affirmed.

W. E. Mann, for plaintiff in error. Geo. W. Head and R. J. McCamy, for defendant in

1. A petition alleging that the defendant is liable in damages to the plaintiff, a married woman, for fraudulently procuring her to sign. as co-principal with another, a negotiable note payable to the defendant, when her undertaking was one of suretyship only, upon the express understanding that she should never be liable to pay the same, and that she was compelled bysuit to pay the note to an innocent purchaser, who acquired the same before maturity for value, in due course of trade, sets forth a cause of action.

2. A promissory note, containing words of negotiability, executed since the passage of the act of 1891 (Civ. Code, § 3667) providing that contracts to pay attorney's fees, in notes and like instruments, shall be void unless a plea be filed by the defendant and not sustained, is negotiable, notwithstanding an agreement in the note "to pay all costs of collection, including ten per cent. attorney's fees."

(Syllabus by the Court.)

Error from city court of Cartersville; J. W. Harris, Judge.

Action by M. A. Crawford against T. R. Jones. Judgment for plaintiff. Defendant brings error. Affirmed.

John W. Akin, for plaintiff in error. J. M. Neel and Neel & Neel, for defendant in error.

COBB, J. Mrs. Crawford sued Jones for damages; alleging, in substance, as follows: That on March 10, 1897, petitioner was a married woman. On that date Jones, holding some claim or demand against Thomas H. Cobb, a son of petitioner by a former husband, for which claim petitioner was in no way liable, and had received no benefit therefrom, came to petitioner with a promissory note which had been signed by Cobb, payable to the order of Jones, for the sum of $230.50 principal, with interest at 8 per cent. per annum, and "stipulating to pay all costs of collection, including ten per cent. attorney's fees," and asked petitioner to sign the same as surety. In order to induce her to do so, defendant stated that Cobb had requested her to sign, and assured her "that he would never trouble her with the note, and that she should never have to pay it," and on these statements petitioner consented to sign the note. After signing her name, she was about to add the word "surety" or "security," when the defendant begged her not to do that, saying that it was unnecessary, and "again assured her that the note would never be collected out of her." After obtaining the signature of petitioner to the note, the defendant, before its maturity, indorsed and transferred the same to L. S. Munford, who in turn transferred the note before maturity to F. M. Ford, receiver. These two indorsements and transfers were made for value in due course of trade, and without notice to either transferee that petitioner had any defense to the note. After the maturity of the note, Ford demanded payment from petitioner, which was refused because petitioner was ignorant at that time of the fact that either of the above-mentioned indorsees had taken the note in due course of trade without notice of her defenses, but, on the contrary, believed that they did have such notice. on her refusal to pay, Ford brought suit against both Cobb and petitioner, as joint makers, to which suit petitioner filed pleas setting up that she signed the note as surety, and was a married woman at the time of signing the same, and also that neither Ford nor Munford took the note in due course of trade for value before maturity, without notice of her defenses. Upon the trial of this suit, petitioner established by uncontradicted evidence that she signed the note as surety, and was a married woman at the time of signing the same, but failed to establish that Ford was not a bona fide holder before maturity for value, and without notice of her defenses, whereupon the jury returned a verdict against Cobb, as principal, and petitioner, as security, for the principal of the note, together with interest and 10 per cent. attorney's fees, on the sole ground that Ford was a bona fide holder for value, without notice of the defenses set up by petitioner. Upon this verdict judgment was entered against Cobb, as

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principal, and petitioner, as security. Execu tion was issued upon this judgment, and, Cobb having no property out of which the money could be made, the execution was about to be levied upon the property of petitioner, whereupon, to protect her property from levy and sale, petitioner procured certain persons to pay off the execution, for which she is bound to repay them. Petitioner has demanded payment of this sum from the defendant, but he fails and refuses to pay the same. is alleged that in defending the suit above mentioned, and also in prosecuting the present action, petitioner has been put to considerable expense. It is further alleged and charged that Jones procured petitioner's signature to the note "by material misrepresentations, as hereinbefore set forth, and did so for the purpose and with the intention, at the time he procured the note, of indorsing and transferring the same before maturity to an innocent purchaser thereof, for the sole purpose of depriving petitioner of her just defense to said note, which said Jones well knew she could and would set up and prove against him, should he bring suit on said note against her." Damages are laid in the sum of $400, which sum is made up of the amount paid on the execution, and the various items of expense petitioner has incurred by reason of the suit against her on the note and of the present action. The court overruled a general demurrer to the plaintiff's petition, and the defendant excepted.

The exact question now before us is presented for the first time in this state, and, after a thorough investigation of the authorities, we have been unable to find any case exactly identical with the one now under consideration. When Mrs. Crawford signed the note that had been previously signed by her son, she was interested in no way whatever in the consideration; and hence her signature imposed upon her no liability, under the law, to any one who had notice of the fact that her contract, though apparently that of a principal, was really one of suretyship only. Jones being cognizant of these facts, the paper was in his hands, so far as Mrs. Crawford was concerned, absolutely worthless. Civ. Code, § 2488. If Mrs. Crawford had paid to Jones the full amount of this note, she would have had the right to recover the same from him. Mills v. Hudgins, 97 Ga. 417, 24 S. E. 146; Lewis v. Howell, 98 Ga. 428, 25 S. E. 504. As she appeared upon the face of the note to be a principal, and as she had a right, under the law, to bind her separate estate by a contract of this character, a purchaser of the note for value before maturity, and without notice of the fact that the contract was really one of suretyship, would have a right to enforce payment of the same. Perkins v. Rowland, 69 Ga. 661; Strauss v. Friend, 73 Ga. 782. Association v. Perry, 103 Ga. 800, 30 S. E. 658, and cases cited. The married woman would thus be compelled to pay the innocent holder of the note, but in so doing she would