be the case, by a man and a woman on a street car, is disorderly conduct, we think too clear to require any discussion. For the reasons given, we think that the court did not err in refusing to grant a new trial. Judgment affirmed. All the justices concurring.

(108 Ga. 786)

HUBBARD v. STATE.

(Supreme Court of Georgia. July 18, 1899.) CRIMINAL LAW-REMARKS OF JUDGE-EXPRESSION OF OPINION-NEW TRIAL.

Where, in a criminal case, the vital issue of fact is whether or not the alleged crime was committed within the period of the statute of limitations, and the judge, while a witness for the state is on the stand, carries him through a rigid examination upon this point, eliciting from the witness answers which fail to establish the time when the crime was committed,-the witness giving answers to the effect that it may or may not have been perpetrated within the period of the statute of limitations,-it is error for the judge, when the witness has finally brought the time within the statute, to remark, within the hearing of the jury, "That is sufficient." This, under the circumstances of the case, might be fairly construed as such an expression of opinion on the evidence as, under section 1032 of the Penal Code, imperatively requires the grant of a new trial.

(Syllabus by the Court.)

Error from superior court, Hart county; & Reese, Judge.

Will Hubbard was convicted of crime, and brings error. Reversed.

W. L. Hodges, B. W. Boyd, and J. P. Roberts, for plaintiff in error. R. H. Lewis, Sol. Gen., and Harrison & Bryan, for the State.

PER CURIAM. Judgment reversed.

(108 Ga. 37)

PITTS et al. v. SMITH. (Supreme Court of Georgia. July 18, 1899.)

ACTION-JOINDER OF CAUSES.

A petition declaring that the defendant is indebted to the plaintiffs on an open account, a copy of which is thereto attached, and containing allegations consistent with the design of obtaining a judgment against him upon such account, but which also contains other allegations indicating a purpose to declare for damages arising from a breach by the defendant of a contract to furnish to the plaintiffs a specified collateral security for the payment by another of this identical account, is bad for duplicity.

in Newton county, begin their complaint by alleging that the defendant, W. Reed Smith, is "indebted to them in the sum of" $465.58, besides interest thereon "from October 1, 1897, on an open account, a copy of which" is attached to their declaration, and that he "became liable to them for the payment of said account in the following manner, to wit: In the spring of 1897 said Smith applied to [them] to get them to furnish certain tenants on the farm of said Smith their supplies to make a crop on his land for the year 1897," telling plaintiffs that, "if they would furnish the said tenants * * # their supplies to make a crop, he, said Smith, would transfer to petitioners his landlord's lien [therefor], which he agreed to take in writing from said tenants before any of the supplies were furnished," and that he "would waive all his rights as landlord, except his lien for rent of the land. They agreed with Smith

to furnish said tenants their supplies on said contract, relying entirely on said contract, and believing said Smith would transfer said lien to them any time they might call on him to do so. Said tenants commenced

to buy their supplies from petitioners on said contract, and bought from them supplies amounting to" $465.58. Subsequently "they called on said Smith to transfer to them his landlord's lien for supplies, as he had agreed to do, and he then refused to do so." In this connection, plaintiffs further allege that "they will entirely lose their debt unless they can collect it out of said Smith," the tenants above referred to being insolvent, and he having "in some way got the entire crops from said tenants," so that plaintiffs are "unable to get any of it on their claim." In conclusion, they undertake to also assert "that if said Smith had complied with his contract, and transferred the lien as he agreed to do, they would have collected their entire debt, as the crops were sufficient to pay their claims and rent of land; that they relied entirely on said Smith's credit and rights as landlord being transferred in accordance with said contract in the sale of said goods; [and] that said Smith, through his breach of contract, is liable to them for damages to the amount of said account, which they sustained on account of refusal to do what he promised in taking and transferring said lien." By amendment the plaintiffs introduced into their petition the further allegations "that the representation of W. Reed Smith to [them] as to transferring his landlord's liens to them was made by said Smith with the view of intentionally deceiving the plaintiffs, when he did not intend to transfer said liens;

that said tenants were ready and willing to give said Smith the landlord liens, and the failure to transfer the same was wholly the fault of said Smith." To this petition as amended the defendant demurred generally because the allegations upon which the plaintiffs relied for a recovery were too “vague, indefinite, and obscure, and no cause of ac

tion" was set forth. By special demurrer the defendant also raised the further objections, among others, that the facts alleged placed "the transaction fully within the statute of frauds," and that the plaintiffs sought to hold him liable "for nonperformance in not delivering security promised, as well as upon open account," thus undertaking, in setting out their alleged cause of action, to join "a suit on a contract and a suit for damages, which is not permissible under the law."

The sole question here presented is whether or not the trial court erred in sustaining the demurrer and dismissing the plaintiffs' petition. Upon exactly what theory the plaintiffs based their alleged right to recover is by no means clear, under the somewhat inconsistent allegations of their petition. As to the most vital particular connected with the transaction to which they relate, it will be noted that these allegations tend rather to confuse than to enlighten. We refer to the doubt thereby suggested whether it was intended to allege that the plaintiffs sold goods to the defendant and to no one else, or to his tenants direct, he not being bound for the price thereof, upon his promise to take from them, in his capacity of landlord, written liens, and thereafter transfer the same to the plaintiffs on demand. If the petition had distinctly alleged that the goods were sold to Smith upon his credit alone, with the understanding that the payment of his indebtedness therefor was to be secured in the manner just indicated, no doubt could have arisen as to the plaintiffs' right to sue him upon the open account thus created. But, as has been seen, the plaintiffs do not explicitly aver that the contract for the sale of their goods was made with Smith, rather than with his tenants. Accordingly, upon the supposition that they intended merely to sue upon the account, we are of the opinion that their petition was, in the language of the demurrer, too "vague, indefinite, and obscure" to establish a cause of action of this kind.

The next inquiry is, can this be treated as a good action for the breach of a contract to furnish a security? Some of the allegations certainly indicate a purpose to declare for damages thus arising; but the petition, as a whole, does not leave this matter certain and unequivocal, as it should have done. As will have been observed, there seems to have been as much effort to sue upon the account as upon the breach of a promise to take and transfer liens. The petition, at its beginning, says that the defendant is indebted to the plaintiffs "on an open account," a copy of which is attached, and that he became liable to them "for the payment" of this account; and the right is claimed to "collect it out of" the defendant. Elsewhere, the petition declares that the defendant did not comply with his promise to furnish the transferred liens, and that he is liable in damages for a breach of this contract. The prayer of the petition furnishes no aid in arriving at its true intent and meaning. It is merely that the defend

ant be "required to appear and answer the petitioners' complaint." It does not ask that he be adjudged liable for an indebtedness upon the account, or for so much in damages upon the alleged breach of contract. If the petition was clear and unequivocal in its statement of the facts relied on for a recovery, the prayer would be sufficient; but, as it is otherwise, the plaintiffs might have relieved it of some obscurity by at least praying in distinct terms for exactly what they wanted. At best, then, the petition has the vice of uncertainty, and it is the kind of uncertainty which is the equivalent of duplicity. While the demurrer, in so far as it seeks to point out this infirmity, is not as precise and specific as it might have been, it clearly enough brought to the attention of the plaintiffs the fact that apparently their petition was framed upon two distinct and inconsistent theories as to the manner and form in which the defendant's alleged liability to them arose, and called upon them to elect whether they would proceed against him as being indebted upon an open account, or as liable in damages for the breach of a contract entirely different from one arising upon an implied promise to pay for goods sold and delivered. A plaintiff owes to a defendant something more than a bare courtesy in respect to informing him as to the nature of the action the latter is called upon to defend; and as the court below treated the demurrer filed by Smith as sufficiently pointing out the omission of the plaintiffs in this particular, and they made no effort to amend, we are satisfied that no error was committed in dismissing their petition. Judgment affirmed. All the justices concurring.

(108 Ga. 93)

DAVIS et al. v. PRINGLE et al. (Supreme Court of Georgia. July 19, 1899.) GARNISHMENT-ANSWER-ADMISSION OF IN.

DEBTEDNESS.

Where, in response to a summons of garnishment issued upon a judgment and served upon a bank, such bank answers that at the time of the service of the summons it had on deposit to the credit of the defendant a specified sum, arising from the collection of a certain draft, indorsed by the payee, and then indorsed and presented by the defendant, such answer is an admission of indebtedness to the defendant. When a claim to the fund thus admitted by the garnishee to be due the defendant has been filed by a third party, who has given bond to dissolve the garnishment, and he fails to traverse the answer of the garnishee, it is not error for the judge to render judgment against the claimant and his security on the bond.

(Syllabus by the Court.)

Error from city court of Waycross; J. S. Williams, Judge.

Action by Pringle Bros. against T. J. Davis and others. Judgment for plaintiff, and garnishment served on the Bank of Waycross. J. W. Davis filed a claim. Claim dismissed, and Davis and another bring error. Affirmed.

John C. McDonald and Ward & Smith, for plaintiffs in error. Quincy & McDonald, for defendants in error.

SIMMONS, C. J. Pringle Bros. obtained a judgment against T. J. Davis & Co.,-T. J., E. L., and W. A. H. Davis. On this judgment they sued out a summons of garnishment, which was served on the Bank of Waycross. The bank answered, in substance, that when it was served with the summons it had on deposit a draft drawn in favor of Mrs. Ora L. Davis, indorsed by her and W. A. H. Davis, and by the latter deposited with the bank for collection; that it had been collected, and the proceeds, $348.50, placed to the credit of W. A. H. Davis, and so stood to his credit at the day of the service. It denied indebtedness to any of the defendants, other than as above stated. When this answer was filed, a claim to this fund had been made by J. R. Davis, administrator of Ora L. Davis, and the garnishment dissolved, under section 4720 of the Civil Code. Under this section, when a person claims a fund in a garnishee's hands, he is required to give a bond, with security in double the amount of the fund claimed, "conditioned to pay to the plaintiff the sum that may be found due to said defendant upon the trial of any issue that may be formed upon the answer of the garnishee, or that may be admitted to be due in said answer, if untraversed." When the case came on for a hearing, no traverse to the answer of the garnishee was filed by either of the parties, and therefore no issue was formed which could have been submitted for trial to the judge or jury. The judge decided that inasmuch as no traverse had been filed to the answer of the garnishee, and that answer admitted the possession of effects in the hands of the garnishee belonging to one of the defendants, and standing as a deposit in his name, the claim should be dismissed, and judgment rendered for the plaintiff in fi. fa. against the claimant and his security. We think that the judgment of the trial judge was right. Under the above-quoted section of the Code, where a garnishee answers, and either party is dissatisfied with the answer, he must file a traverse thereto in order to form an issue which can be tried. If there be no traverse, and the garnishee in his answer admits effects in his hands belonging to the defendant, then it is the duty of the court to give judgment against the claimant and his securities on the claim bond for the amount admitted by the garnishee. This is the Code system of a summary trial between the plaintiff in fi. fa. and the claimant of a fund in the hands of the garnishee. Under this system it is unnecessary to go into equity by petition for interpleader filed by the holder of the fund. The plaintiff brings the garnishee into court by the summons of garnishment. The garnishee answers, and either party can traverse this answer and thus make an issue. The answer of the garnishee in the present case was not, in our opinion, in the

nature of a petition for interpleader. It simply stated that the bank had the fund, and explained how it had obtained it. We think that it admitted that the bank had funds belonging to one of the defendants; stated that this defendant had deposited to his credit a draft indorsed to him by Mrs. Ora L. Davis, and that the bank had collected the draft, and held the proceeds as a deposit in the name of this defendant. On this admission by the bank, the trial judge did not err in entering up judgment against the claimant and his se curities. If this admission was not true, or if the facts stated in the answer were not true, it was the duty of the claimant to traverse the answer, and to show to the jury, upon the trial of the traverse, that the fund really belonged to the estate of his intestate, although she had indorsed the draft to W. A. H. Davis. Not having traversed the answer of the garnishee, he cannot complain of the Judgment of the court below against him and his securities. This case differs from that of Small v. Mendel, 96 Ga. 532, 23 S. E 834, in that here the garnishee's answer admitted indebtedness to the defendant, while in that case there was no admission of indebtedness, but, on the contrary, a statement that the garnishee was unable to state to whom the fund did belong. Judgment affirmed. All the Justices concurring.

(107 Ga. 784)

HOLMES v. PYE et al. (Supreme Court of Georgia. June 3, 1899.) CERTIORARI-PROCEDURE-FINAL JUDGMENT.

1. When the only error alleged in a petition for certiorari is that the verdict therein complained of is contrary to law and to the evidence, and it appears that the evidence demanded a verdict for the plaintiff in certiorari, the superior court should, of course, sustain the certiorari; but it is erroneous in such a case, though there be no conflict in the evidence, to render a final judgment in his favor. This is so, for the reason that in such a case the error complained of is not "an error in law which must finally govern the case," and, further, because it could not be known with certainty that the evidence on another trial would be the same.

2. There was no error in sustaining the certiorari, but the court did err in rendering a final judgment.

(Syllabus by the Court.)

Error from superior court, Monroe county; C. C. Smith, Judge.

W. T. Holmes levied a distress warrant, and J. C. Pye & Co. claimed the property as bona fide purchasers. Judgment for the claimants, and the landlord brings error. versed.

Re

B. B. McCowen and R. D. Smith, for plaintiff in error. W. Y. Allen and Bloodworth & Rutherford, for defendants in error.

LITTLE, J. 1. The question which arises in this case is whether J. C. Pye & Co. were such bona fide purchasers of the cotton levied on as entitles them to have the property free from the lien of the landlord. On the

trial of the case in the justice's court, the jury found the property subject to the distress warrant, and judgment was rendered accordingly, to which Pye & Co. sued out a writ of certiorari. On the hearing the judge ordered that the certiorari be sustained, and, as in his opinion, there was no question of fact involved which made it necessary to return the case for another hearing, he finally determined the same, and gave judgment in favor of Pye & Co., the claimants. To that decision Holmes excepted. A consideration of the evidence in the record induces the conclusion that the judge of the superior court committed no error in sustaining the certiorari. Indeed, on the controlling question of fact in the case, the evidence required such a Judgment. Under section 2795 of the Civil Code, a special lien for rent on the crops made on rented land is given to landlords, and such liens are superior to all other liens, except those for taxes. The same section also gives a general lien on all the property of the debtor. It is to be noted that the superiority of landlords' liens, as fixed by the statute, is over other liens. In the case of Thornton v. Carver, 80 Ga. 397, 6 S. E. 915, it was ruled that a bona fide purchaser, without notice, of a crop grown on rented premises, will be protected against the lien, general or special, of the landlord for rent. It was conceded that the cotton levied on was grown on the rented premises, but it was contended by Pye & Co. that they were bona fide purchasers without notice, and therefore the property was not subject to the distress warrant. This, of course, was a question of fact. The jury determined it adversely to the claimant. As be fore stated, the evidence seemed to require a verdict for the claimant, and therefore the certiorari was properly sustained. The judge, however, went further, and made a final disposition of the case in favor of the claimant. This we think was error. Under section 4652 of the Civil Code, power is given to the superior court, on hearing the writ of certiorari, to order it dismissed, and to return the same to the court from which it came, with instructions; and in all cases where the error complained of is an error in law which must finally govern the case, and there is no question of fact involved, it is the duty of the judge to make a final decision without sending the case back. The latter course can only be taken when there is no question of fact involved, and where the error complained of is an error of law which must finally govern the case. The errors complained of in the petition for the writ of certiorari in this case are that the verdict is contrary to the evidence, against the weight of evidence, and without evidence to support it, and for the further reason that the verdict is contrary to law, so that it will be seen that the verdict of the jury was alleged to have been against the evidence in the case and against the law. There were, then, questions of fact involved, upon the determination of which the rights of the parties must 33 S.E.-52

depend. It cannot be said that the evidence contained in the record would necessarily be. the evidence submitted on any future trial. It might or it might not be. In the case of Rogers v. Railroad Co., 100 Ga. 699, 28 S. E. 457, this court held, on a hearing of a writ of certiorari, that while there was some evidence to sustain the finding, but the preponderance of the evidence was against the finding, the judge of the superior court would not have abused his discretion if he had ordered a new trial in the justice's court; but as the record does not make a case where "the error complained of is an error of law which must finally govern the case," and as it is one involving a question or questions of fact, which, under the law, made it "necessary to send the case back for a new hearing" before the justice's court, it was error in the judge of the superior court to render a final judgment in the case, instead of sending it back for a new trial. And in the case of Almand v. Banking Co., 102 Ga. 151, 29 S. E. 159, this court held that, applying the law laid down in Civ. Code, § 4652, that case was one dependent mainly, if not entirely, upon the sufficiency of the evidence to warrant the verdict rendered in the justice's court, but that it could not, of course, be known with certainty that at another trial in that court the evidence would be the same. The learned judge delivering the opinion in that case said: “If, in a given case, the juries in the magistrate's court continue to render verdicts which, in the opinion of the judge of the superior court, are contrary to law and the evidence, he may, in remanding the case for another trial, give appropriate instructions for observance when yet another hearing takes place. For instance, he may direct, if in his judgment it is right and proper to do so, that if at the next trial the evidence is the same, or substantially the same, as at the last preceding trial, the verdict should be so and so." Again, in the case of Pinkston v. White, 102 Ga. 561, 27 S. E. 665, the same judge, delivering the opinion of this court, said: "Inasmuch as the final determination of the case did not necessarily depend upon a controlling question of law, and there were issues of fact involved, the case should have been remanded for a new trial, and therefore the rendition by the superior court of a final judgment in the plaintiff's favor was erroneous." And in the case of Johnson v. Coleman, 106 Ga. - 32 S. E. 122, it was ruled by this court that "a superior court cannot lawfully render a final judgment upon a certiorari, when it appears that at the trial thereby brought under review there were disputed issues of fact, and the case was not one the determination of which necessarily depended upon a controlling question of law." These authorities, which must be accepted as a proper interpretation of the rule laid down in the Code, only authorize the superior court to make a final disposition of a case brought before it by a writ of certiorari when the error complained of is an error in law, which must finally govern the case; and if, on the trial