proper subject for plea.

As to the allegations of fraud contained in the answer, it is sufficient to say that they did not specifically deny the execution of the instrument sued on, but alleged, in effect, that the defendant did not intend to make a continuing guaranty, and that, if the instrument really contained any such a stipulation, it was a fraud on him. These allegations were entirely too loose and general to raise an issue of fraud. They nowhere allege that the defendant was overreached in any way or that any misrepresentations were made to him by the plaintiff whereby he was induced to sign the instru ment. The words of the instrument are plain and unambiguous, and there was no allegation that the defendant was ignorant of the meaning of the ordinary English words in which it is couched.

3. It is contended that the contract sued on in this case is one of "suretyship," and not of "guaranty." The two terms are frequently used interchangeably, and for this reason a great confusion has arisen in the books as to the proper distinction to be drawn between them. A guarantor is a surety, in the sense that he obligates himself to pay the debt of another, but at the same time there is a very clear distinction between them. One difference is pointed out by our Code. It says that a contract of suretyship "differs from a guaranty in this: that the consideration of the latter is a benefit flowing to the guarantor." Civ. Code, § 2966. See, also, opinion of Bleckley, J., in Wright v. Shorter, 56 Ga. 76. In brief, we understand the difference to be this: A surety binds himself to perform, if the principal does not, without regard to his ability to do so. His contract is equally absolute with that of his principal. They may be sued in the same action, and judgment may be entered up against both. A guarantor, on the other hand, does not contract that the principal will pay, but simply that he is able to do so; in other words, a guarantor warrants nothing but the solvency of the principal. Before an action can be maintained against a guarantor, therefore, it must be shown that the principal is unable to perform. The surety says to the creditor: "If your debtor will not pay, I will pay." The guarantor says to him: "Proceed first against the principal, and, if he should not be able to pay, then you may proceed against me." It has been said that there is no instance in the books of a guarantor contracting jointly with his principal. Much has been written upon this subject, but we think the above expresses the true distinction between the two classes of contracts. See Reigart v. White, 52 Pa. St. 438; McMillan v. Bank, 10 Am. Law Reg. 431, and notes to that decision; Kramph's Ex'x v. Hatz's Ex'rs, 52 Pa. St. 525; notes to Birdsall v. Heacock, 18 Am. Law Reg. 751; 9 Am. & Eng. Enc. Law (1st Ed.) 68, and cases cited.

Measured by these rules. we think it per

fectly clear that the contract under consideration in this case was one of guaranty. It was entirely separate from the obligation of the principal debtor, was made for a consideration flowing to the maker, and it can be fairly inferred from the terms of the instrument that Manry only intended to bind himself in case Grubbs was not able to pay. The defendant in this case would be bound in either case, but, in a strict sense, he was a guarantor, and not a surety.

It is further insisted that, even if the obligation undertaken by the defendant was a guaranty, it was not a continuing one, but was to cease when Grubbs paid the first indebtedness he incurred, amounting to $400, and that all subsequent credits were extended to him solely on his own promise to pay. The intention of the parties must be gathered from the instrument and the circumstances surrounding its execution. The correspondence which led up to the execution of this guaranty was all between the plaintiff and Grubbs, and hence can throw no light on Manry's intention. At the time of the execution of this instrument, Grubbs owed the plaintiff nothing, for it had persistently refused to extend credit to him unless he would secure the defendant as his guarantor; and hence the instrument does not refer to any indebtedness existing at the time of its execution. Instruments of this character should have a liberal construction, in order Ito arrive at the true intention of the parties. Was it the intention of Manry to bind himself by a continuing contract of guaranty? The language of the instrument seems to indicate that it was. He obligates himself to pay promptly "all accounts and notes given in settlement for goods" purchased by Grubbs from the plaintiff, "to the extent of four hundred dollars." Not to pay any certain notes and accounts within any fixed and definite time, but any and all notes and accounts that might be owing at any time. If it had been the intention of the defendant to restrict his liability to any particular transaction between the plaintiff and Grubbs, why did he not stipulate that he would not be bound after the first credit to the amount of the guaranty was extended, or after a certain time? There is absolutely nothing in the language referred to which tends in any manner to restrict the obligation to the first credit, amounting to $400, but the most reasonable conclusion to be drawn therefrom is that the guaranty was a continuing one. Moreover, the defendant stipulates that he shall be at liberty to withdraw the guaranty at any time. provided the indebtedness of Grubbs was paid. Why stipulate for a withdrawal, if the contract was not a continuing one? What was the necessity for stipulating to withdraw an instrument which had become void by the payment by Grubbs of the amount fixed in the contract? The use of this language seems to indicate that Manry recognized that he would be bound for any credits,

to the extent of $400, until the contract was withdrawn by him. Taking the instrument as a whole, we are satisfied that it expresses an intention on the part of the defendant to make a contract by which he would be bound for any credits which might be extended to Grubbs, to the amount of $400, until such time as he saw proper to and could, under his contract, notify the plaintiff that he would no longer be bound to pay any amounts which Grubbs might owe it.

In a case of this character, adjudicated cases do not render much assistance, but an examination of some of the cases where similar instruments were construed will show that the ruling we make is in harmony with the authorities. In Whelan v. Keegan, 7 Ir. Com. L. 544, suit was brought on the following instrument: "I hereby guaranty the payment of any amount of goods you may give to John Keegan, of William street, not exceeding 40 pounds sterling." The defendant pleaded payment by the principal debtor. It appeared that the plaintiff had sold cattle to Keegan from time to time, for which he had received payment, but the amount claimed by plaintiff was due to him by Keegan in respect of subsequent dealings. It was held that the contract sued on was a continuing guaranty, and that the plaintiff "was entitled to recover to the extent thereof." In the case of Rapelye v. Bailey, 5 Conn. 149, the defendant addressed a letter to the plaintiffs as follows: "My brother Roswell is wishing to go into business in New York, by retailing goods in a small way. Should you be disposed to furnish him with such goods as he may call for, from 300 to 500 dollars' worth, I will hold myself accountable for the payment, should he not pay, as you and he shall agree." It was held that this letter contained a continuing guaranty. In discussing the question, Hosmer, C. J., says: "The words of the contract ought to be taken as strongly against the defendant as the sense of them will admit. If a limitation was intended as to time or manner of delivery, why was it not specified, as was the limitation relative to the amount?" In Mason v. Pritchard, 12 East, 227, it was held that a guaranty by the defendant to the plaintiff "for any goods he hath or may supply W. P. with, to the amount of 100 pounds sterling," was a continuing guaranty to that extent for any goods supplied, until the credit was recalled. In Crist v. Burlingame, 62 Barb. 351, it was held that the following letter contained a continuing guaranty: "I will be and am responsible for any amount for which A. Burlingame may draw on you, for any sum not to exceed $1,500, on condition of your acceptance of the same." In Rindge v. Judson, 24 N. Y. 64, it was held that "a contract to be 'accountable that B. will pay you for glass, paints, etc., which he may require in his business, to the extent of fifty dollars,' is a continuing guaranty. The limitation is not of the credit to B., but of the extent of

the guarantor's liability." To the same effect as the decisions referred to, see the following: Merle v. Wells, 2 Camp. 413; Scott v. Myatt, 24 Ala. 489; Hotchkiss v. Barnes, 34 Conn. 27; Crittenden v. Fiske, 46 Mich. 70, 8 N. W. 714; Boehne, v. Murphy, 46 Mo. 57; Bent v. Hartshorn, 1 Metc. (Mass.) 24; Grant v. Ridsdale, 2 Har. & J. 186; Gates v. McKee, 13 N. Y. 232. Each case must, of course, stand upon the peculiar phraseology of the contract under consideration; but the cases above cited serve to show that where an absolute promise is made to become responsible for a certain amount, with no limitation as to time, and there is nothing in the circumstances surrounding the execution of the contract to evince a contrary intention, it will be presumed that the promise was to continue until revoked, and the promisor will be held liable to the extent of his guaranty, notwithstanding the principal may have, during the existence of the contract, contracted debts to an amount equal to or greater than the sum named in the guaranty, and paid the same.

4. Was the defendant entitled to notice from the plaintiff of the acceptance of his guaranty? The evidence shows that no such notice was given. This question was under consideration by this court in the case of Sanders v. Etcherson, 36 Ga. 404. In that case suit was brought on an undertaking in writing by the stockholders of a certain railroad company to "guaranty the payment of all the debts heretofore made and now outstanding against said company," and they bound themselves "personally for the payment of the same, to all of the creditors of the company who will not sue, but indulge the company upon their claims for 10 months from this time, we to be liable to the creditors for the whole amount, but, as between each other, in proportion to the stock owned by each." It was held that a creditor who complied with the terms prescribed was entitled to the benefit of the provisions of the guaranty, without having notified the stockholders of the acceptance of their proposition. Walker, J., in the opinion, says that in some cases notice of acceptance would be necessary; but that "where the undertaking of the guarantor is positive, and the amount he agrees to guaranty is fixed, and the guaranty is to take effect on the doing or forbearing some definite thing as its consideration, then no notice of acceptance is necessary." We think this case is controlling in the present one, and it will be found to be in harmony with the great weight of authority. See 2 Pars. Cont. p. 14, 9 Am. & Eng. Enc. Law, pp. 79, 80, and numerous cases cited in each. It is true that a contrary ruling was made in the case of Claflin v. Briant, 58 Ga. 414; but that case may be distinguished on its peculiar facts, and, if not, the ruling made in 36 Ga., supra, antedating that made in 58 Ga., is controlling.

5. The uncontradicted evidence in the case showing that Grubbs. at the time of his death,

was indebted to the plaintiff in a sum exceeding $400, and that his estate was insolvent, and that the defendant had not withdrawn his guaranty, there was no error in directing a verdict in the plaintiff's favor for that amount. We think, though, it was error to allow interest on this amount at 8 per cent. from October 15, 1897. The defendant, by his contract, bound himself absolutely to pay $400, and no more. This, therefore, was the measure of his liability under the contract, and he could be required, in no event, to pay more than this until demand had been made upon him and he had refused to pay the amount due. As there was no evidence of any demand, interest should be allowed from the date of the filing of the suit at the rate of 7 per cent. per annum. Direction is given that the verdict and judgment be amended so as to allow interest at 7 per cent. per annum on the principal sum recovered from the date of the filing of the suit, and that the costs of bringing the writ of error to this court be taxed against the defendant in erJudgment affirmed, with directions. All the justices concurring.

ror.

(107 Ga. 728)

HAMILTON et al. v. PHENIX INS. CO. OF BROOKLYN.

(Supreme Court of Georgia. May 30, 1899.)

CERTIORARI-BOND-NECESSITY.

A writ of certiorari, unless sued out in forma pauperis, cannot, in a civil case, be lawfully issued until after the party applying for the same shall have given the bond prescribed by section 4639 of the Civil Code, and a bond tendered for this purpose must in some manner be approved by the judge or justice of the court in which the case was originally tried. When such a writ is issued upon the filing of a bond which has never been approved at all, the writ is void, and the bond is not amendable in the superior court.

(Syllabus by the Court.)

Error from superior court, Carroll county; S. W. Harris, Judge.

Action by G. R. & S. L. Hamilton & Co., for use, etc., against the Phenix Insurance Company of Brooklyn. Judgment for plaintiffs, and defendant brought certiorari. From an order refusing to dismiss the writ, plaintiffs bring error. Reversed.

S. Holderness and J. T. Pendleton, for plaintiffs in error. John C. Reid, for defendant in

error.

LUMPKIN, P. J. A writ of certiorari cannot, in a civil case, be lawfully issued until after the party applying for the same, his agent or attorney, shall have filed with the clerk of the superior court a bond, with good security, conditioned to pay the adverse party the eventual condemnation money, together with all future costs, or shall make and file with the petition for certiorari an affidavit that he is advised and believes he has good cause for certiorari, and that, owing to his poverty, he is unable to pay the costs and give security. 33 S.E.-45

Civ. Code, §§ 4639, 4641; Kelly v. Jackson, 67 Ga. 274; Hendrix v. Mason, 70 Ga. 523; Hester v. Keller, 74 Ga. 369; Lowe v. Wallace, Id. 402. These cases establish the proposition that the certiorari bond must be duly approved before the writ can issue, and, necessarily, the approval must be made by the judge or justice who tried the case in the first instance; for section 4640 of the Civil Code confers upon the trial judge the power, if he sees proper, to require the surety tendered by the plaintiff in certiorari to justify upon oath as to his solvency. The fact of approval may be evidenced, not only by a formal entry, but also by any conduct on the part of the trial judge showing his acceptance of the bond as a sufficient one under the law. In the present case the plaintiffs in certiorari simply filed with the clerk of the superior court a paper purporting to be a bond, without having made any attempt whatever, prior to the issuing of the writ, to have this instrument approved by the trial judge or by any other official. When the case was called in the superior court, counsel for the defendant in certiorari moved to dismiss the proceeding on the ground that the plaintiffs had not given bond as required by law. The presiding judge overruled this motion, heard evidence as to the solvency of the sureties, and then himself undertook to approve the bond. We are quite sure the judge had no authority to pursue this course, but ought to have sustained the motion to dismiss. As there was no legally issued writ of certiorari, there was really no case at all lawfully before the superior court. The sections of our Code, and the decisions of this court cited by counsel for defendant in er ror, and relating to the amendment of appea bonds and other like bonds taken in the course of judicial proceedings, are not applicable to a case such as that now before us; for here there was really nothing to amend by, the process upon which the proceeding rested being a mere nullity. That is to say, the issuing of the writ of certiorari by the clerk being, under the circumstances stated, totally unwarranted, it was the same thing in contemplation of law as if the writ had never been issued; and, as an absolutely void and unauthorized process cannot be cured by amendment, it follows, of course, that there was no case before the superior court of which it could entertain jurisdiction for any purpose, except to dismiss it. Judgment reversed. All the justices concurring.

(107 Ga. 835)

PERKINS v. MORGAN et al. (Supreme Court of Georgia. June 9, 1899.) INTERPLEADER-PLEADING AS EVIDENCE

-WEIGHT-ANSWER-APPEAL-REVIEW.

1. Where, in answer to an equitable petition for interpleader, brought against two defend. ants, one of them prays for discovery from the other, the response by the latter to such answer may be admitted in evidence in his favor, and it

is not error for the court to instruct the jury that it requires two witnesses, or one witness and corroborating circumstances, to overcome such response, when the same is responsive to the interrogatories.

2. It is not error to strike such portion of a defendant's answer as merely refers to reasons or evidence why the defendant is confirmed in his recollection of the facts which he is allowed to set up in his defense.

3. This court cannot consider a ground of a motion for a new trial which alleges error in the exclusion of a letter offered by the movant as evidence in his behalf when it does not appear from the motion what were the contents of the letter excluded.

4. There was sufficient evidence to sustain the verdict.

(Syllabus by the Court.)

Error from superior court, Pulaski county; W. E. Simmons, Judge pro hac.

Bill by I. Thompson & Co. against J. O. Perkins and W. A. Morgan. From the judgment Perkins brings error. Affirmed.

W. L. & Warren Grice, for plaintiff in error. J. H. Martin and A. C. Pate, for defendants in error.

SIMMONS, C. J. 1. Thompson & Co. filed a bill of interpleader, alleging that they had possession of certain funds which were claimed by Morgan and by Perkins, administrator, and praying that these claimants be required to interplead with each other, so that petitioners might be protected. For more complete reports of the facts, see 91 Ga. 570, 18 S. E. 353, and 94 Ga. 353, 21 S. E. 574. Perkins, administrator, in his answer, prayed discovery of Morgan as to certain facts set up by him in his answer, and propounded certain interrogatories to Morgan as to these facts. Morgan answered these interrogatories, and on the trial of the case the trial judge charged the jury that this answer of Morgan's, where it was responsive to the interrogatories, was evidence for Morgan, and required the evidence of two witnesses, or of one witness and corroborating circumstances, to overcome it. Perkins, having lost the case, made a motion for a new trial, and complained of this charge as error. Counsel contended in the argument here that the rule as given by the judge in his charge to the jury does not apply to cases of interpleader, but only to original bills brought by a complainant against a respondent in which discovery is sought by the former. We think that under our Code the rule is not restricted to the instances given by counsel. Section 3953 of the Civil Code provides that "discovery may be had from the opposite party, either nominal or real, in any case pending in any court in this state." This rule is broad and unrestricted. The present case was a proceeding in equity. Perkins sought discovery from his opponent, who was really the only contestant against him,-the "opposite party" in the case; and, in our opinion, the charge complained of was applicable and pertinent. Thompson & Co. had no real interest in the

result of the suit, but were willing to pay to either party the amount they owed, and the real contest was between the claimants of the fund. Each sought to establish his claim. From the fact that Perkins sought discovery of Morgan, it would seem that he thought he would be unable to make out his case without the testimony of Morgan. At any rate, he did seek such discovery, and thereby made Morgan his witness, and became bound by Morgan's answers to the interrogatories where they were responsive, unless he could overcome them by more than the evidence of one witness. We think that the court was right in charging the jury that the answer of Morgan was, where responsive, evidence which Perkins could overcome only by the evidence of two witnesses, or of one witness and corroborating circumstances.

2. Perkins' intestate had made a contract with Morgan, whereby the former became entitled to cut certain timber from a certain portion of Morgan's land. His intestate having died without having cut the timber, and the time having expired within which he had the right to cut it, Perkins made with Morgan a parol agreement by which the time was extended. Morgan claimed that this extension was for but three months. Perkins at first claimed that the extension was for six months, and afterwards, in an amendment, alleged positively that Morgan did not limit him to three, or even to six, months, but allowed him as much time as was necessary, and that he (Perkins) had gotten the timber off as soon as was practicable. The timber was not cut until after the expiration of three months from this parol agreement, and the substantial issue was as to the length of the extension granted in the agreement. The amendment offered by Perkins set up the fact that this extension was not limited except to the time reasonably necessary for cutting and removing the timber, and that it was so cut and removed as soon as practicable, and it then proceeded to state the reasons why his recollection was clear and distinct, and his averments in regard to the length of the extension positive, giving as one of the reasons the fact that he had found a letter written by him to his agent on the day the extension was granted. It further proceeded with a sort of argument to show that this letter was calculated to refresh his recollection, and to make him positive that his recollection so refreshed was accurate and correct. This letter and the argument relative thereto were stricken by the trial judge on the motion of counsel for Morgan, to which Perkins excepted. It will be observed that the court allowed that portion of the amendment in which he distinctly made the issue as to the time when the limit would expire, and struck only the letter and the reasons given why his recollection was refreshed and accurate. We think there was no error in refusing to allow

this portion of the amendment. Our Code requires the facts to be set forth in a petition or answer, but does not require any reasons or argument in the pleadings to show that the facts set out are true. This should be left to the evidence in the case. In the present case there is an additional reason for upholding the ruling of the trial judge. This is that by the amendment, as offered, Perkins sought to introduce into the pleadings a letter written by himself, which was of doubtful admissibility had it been offered in evidence. Had the entire amendment been allowed, and this letter left as a part of the pleadings, it would have gone to the jury, and the pleader would probably have received the benefit of it, although it may have been inadmissible as evidence.

3, 4. Except as to whether the verdict was contrary to law and the evidence, the third headnote disposes of the only other question made in the motion for new trial which it is necessary for us to notice, and the principle there announced has so often been ruled by this court that it would not be profitable to further discuss it. The evidence was clearly sufficient to authorize the verdict, and the trial judge did not err in refusing to grant a new trial. Judgment affirmed. All the justices concurring.

(108 Ga. 782)

DICKERSON v. DOWNS.

(Supreme Court of Georgia. June 7, 1899.) EXECUTION-SATISFACTION-AMENDMENT.

After an execution which was proceeding for certain amounts as principal and costs had been returned to court fully satisfied, it could not be then amended by an insertion therein by the clerk of additional costs, as witness fees, and proceed for the same.

(Syllabus by the Court.)

Error from superior court, Marion county; W. B. Butt, Judge.

Action by Sam Dickerson against John Downs. Judgment for plaintiff. From an order refusing to amend the execution, Dickerson brings error. Affirmed.

Simeon Blue and J. A. Noyes, for plaintiff in error. J. E. Sheppard, for defendant in er

ror.

PER CURIAM. Judgment affirmed.

(107 Ga. 490)

BUNN v. POSTELL. (Supreme Court of Georgia. May 29, 1899.) CONTRACT OF INSANE PERSON-RATIFICATION BY PERSONAL REPRESENTATIVE.

1. The contract of an insane person, who has never been adjudged insane by any tribunal of competent jurisdiction, is voidable, after his death, at the option of his personal representatives.

2. When a person while insane made a contract, and shortly thereafter died, and when his estate has thereby realized property of value, the administrator of the estate, as the personal representative of the deceased, may ratify

the contract; and, if he does so, the estate is bound by the terms of the contract.

3. Such ratification may result not only from express agreement with the other contracting party, but also from conduct of the administrator. If such conduct is such as clearly to indicate a purpose of ratification, and the property acquired by the deceased is kept by the administrator until it has been depreciated to such an extent as to become worthless, the estate will be liable in a suit for the purchase price orig. inally agreed upon between the contracting parties.

4. Applying the above principles to the facts in this case, the evidence demanded a verdict for the plaintiff, and the court therefore did not err in instructing the jury to so find.

(Syllabus by the Court.)

Error from superior court, Polk county; C. G. Janes, Judge.

Action by John Postell against W. C. Bunn, administrator. Judgment for plaintiff. DeAffirmed.

fendant brings error.

Irwin & Bunn, for plaintiff in error. J. W. Harris, J. A. Blance, W. K. Fielder, and King & Spalding, for defendant in error.

SIMMONS, C. J. From the record it appears that a certain mining company was incorporated in the state of Alabama. Stock was issued, of which West and Postell each owned a number of shares. West desired to purchase enough of the shares of the company to give him control thereof. Postell sold him certain shares, and took his obligation to pay for the same at the price agreed upon. A few days after this trade was consummated, West died, and Thompson was appointed his administrator. Thompson had the shares of stock owned by West's estate, including the shares purchased from Postell, transferred on the books of the company to him as administrator. He also attended meetings of the stockholders of the company, and had himself made a director in the same, by virtue of holding these shares as West's administrator. There was some correspondence between him, as administrator, and Postell, concerning the payment of the written obligation which West had signed for the price of the stock. In none of his letters to Postell prior to the latter's bringing suit did Thompson deny the validity of the contract, but, on the contrary, acknowledged its validity, and made certain promises in regard to its payment. Finally Postell brought his action against the administrator, and at the first term the administrator tiled an answer to the merits of the action; making, however, at that term, no attack on the validity of the contract on the ground of the insanity of his intestate. At a succeeding term he amended his answer by adding, in substance, that West, on account of mental incapacity, was unable to make a valid and binding contract. Thomp son died before the trial of the case, and Bunn was appointed administrator de bonis non, and made a party in place of Thompson. At the trial a large part of the evidence was devoted to an investigation of West's capacity or incapacity to make the contract sued upon.