in treating the nature of the obligation of a surety, the same Code (section 2967) declares that, if the original contract of the principal was invalid, from a disability to contract, and this disability was known to the surety, he is still bound. In the case of Weldon v. Colquitt, 62 Ga. 449, the same principle was expressly recognized by this court. But is the instrument in question legally and technically a contract of guaranty? It is true that it commences with the words "I hereby guaranty the payment," but it also expressly mentions the sum of $500 as a reward for the arrest, with evidence to convict, of the person or persons who shot and killed Campbell on a given day; and it would seem that the object to be accomplished by this instrument was more than a simple guaranty of the offer of Campbell, and it cannot be held that the instrument has no binding force upon the maker. It is, in effect, an offer of a reward of $500 for the arrest, with evidence to convict, of the person who murdered her son. So treating it, was the execution of the paper without consideration to her? We think not. Any person capable of making a binding contract, whether interested or not, may offer a reward, and will be liable when the terms of the offer are complied with. Furman v. Parke, 21 N. J. Law, 310. The performance of the services constitutes an acceptance of the offer of a reward, and makes a binding contract as between the parties. Until such performance, the offer is conditional. Loring v. City of Boston, 7 Metc. (Mass.) 411; Besse v. Dyer, 85 Am. Dec. 747; Pierson v. Morch, 82 N. Y. 503; Patton's Ex'r v. Hassinger, 69 Pa. St. 311. The performance of the service according to the terms of the offer constitutes a sufficient consideration. Morrell v. Quarles, 35 Ala. 544; Gilmore v. Lewis, 12 Ohio, 281; Ryer v. Stockwell, 73 Am. Dec. 634; Morse v. Bellows, 28 Am. Dec. 372. When Mrs. Campbell executed the instrument, there was no contract; the executor had only proposed a contract. Hence, if it should be held that the instrument was a contract of guaranty, it could at the time guaranty nothing more than the proposition. To guaranty a proposition is nothing more than to make a proposition.

3. It is further complained that the verdict is contrary to law and without evidence, and .should be set aside. This is an exceedingly unfortunate case for the plaintiff in error. The fact that she has been held liable for the payment of a reward for the arrest and conviction of one son as the murderer of another son makes the case peculiarly one of hardship. She avers in her answer that she was imposed upon, and made to sign the offer of reward by the fraud and misrepresentation of one of the defendants in error, and there is evidence in the record to support this contention. On the other hand, there is evidence showing the contrary. Whether or not this offer was so obtained was a question of fact, and the very painstaking and careful judge who presided at the trial submitted the ques

tion to the jury under full and proper instructions, and they have found the fact to be that it was not obtained as she has averred. If it could be assumed, notwithstanding such finding, that the offer of reward by her was induced by fraud and misrepresentation, the fact, nevertheless, remains that after the arrest and prosecution of her son she gave an order to two of the defendants on the administrator, who held her property, for the payment of the reward offered. This was done after a knowledge of the facts and circumstances which she avers constituted the fraud. It is true that she avers that this order for the payment of the money was obtained by fraud, threats, and intimidation, and it may be so; but the jury trying the issues in the case have determined finally her liability, and, while the evidence does show that she was å weak, old, and illiterate woman, it does not show that she was incompetent to contract. Had it done so, we have no doubt but that the jury, in passing on the question of such liability, would have given her, not only the benefit of such evidence, but such sympathy as might legally emanate from a jury box. It is unpleasant to contemplate the encouragement by a mother of the arrest and conviction of one son for the homicide of another, but, so long as laws are made to be executed, the validity of contracts must be enforced, and full effect given to the legal consequences of such instruments.

The verdict in the case is supported by the evidence, and is not contrary to law. The principles embodied in the written requests to charge, so far as legal, are covered in the general charge, and the judgment of the court below is affirmed. All the justices concurring.

(108 Ga. 109)

EASON V. VANDIVER. (Supreme Court of Georgia. July 20, 1899.) JUDGMENT LIEN-BONA FIDE PURCHASERWANT OF NOTICE-EVIDENCE-ASSIGNMENT OF ERROR.

1. Where judgment was rendered against a defendant in the county of his residence, but the fi. fa. issuing thereon was not entered upon the general execution docket thereof within 10 days from the date of the judgment, one subsequently purchasing from the defendant, claiming that the judgment was not a lien upon the property by reason of such facts, must, in order to relieve the property from the lien of the judgment, prove that he acted in good faith, and without notice, in making such purchase. Proof of want of notice on the part of an agent is not proof of want of notice on the part of his principal.

2. No assignment of error was made upon the rendition of a final judgment in the superior court. Had there been, then the case would have been controlled by the ruling of this court made in Holmes v. Pye (decided this term) 33 S. E. 816, and cases there cited. (Syllabus by the Court.)

Error from superior court, Early county; H. C. Sheffield, Judge.

Action by William Eason against the Bivings Bros. Lumber Company. Judgment for

plaintiff. On levy of execution W. F. Vandiver interposed a claim. Judgment for claimant, and plaintiff brings error. Reversed.

R. H. Sheffield, for plaintiff in error. R. H. Powell & Son, for defendant in error.

FISH, J. William Eason obtained judgment against the Bivings Bros. Lumber Company in a justice's court in Early county on December 18, 1897. Execution issued thereon December 23, 1897, but was never entered on the general execution docket. On January 3, 1898, the lumber company executed and delivered to Vandiver a bill of sale, reciting a consideration of $320, to certain personalty, including three log carts. Eason's execution was levied upon these carts in February, 1898, and Vandiver interposed his claim to them. Upon the trial of the issue in the claim case before a jury in the justice's court, in addition to what has been stated, it was shown for the claimant that he lived in Montgomery, Ala.; that his attorneys at law represented him in purchasing the carts and other property in the bill of sale from the lumber company; that he had his attorneys "to make a search of the records of the general execution docket of Early county, and that they had no knowledge or notice of this judgment or fi. fa. until date of levy." There was a verdict finding the property subject. The claimant carried the case by certiorari to the superior court, complaining that the verdict was contrary to law and the evidence. The justice's answer showed the facts to be as above stated. Upon the hearing the judge sustained the certiorari, and rendered a final judgment finding the property not subject to the judgment lien, whereupon Eason, the plaintiff in fi. fa., excepted.

1. Section 2779 of the Civil Code provides that: "As against the interests of third parties acting in good faith and without notice, who may have acquired a transfer or lien oinding the defendant's property, no money judgment obtained within the county of the defendant's residence in any court of this state shall have a lien upon the property of the defendant from the rendition thereof, unless the execution issuing thereon shall be entered upon said docket within ten days from the time the judgment is rendered. When the execution shall be entered upon the docket after the ten days, the lien shall date from such entry." The purpose of this section is to protect "third parties acting in good faith and without notice," and one who claims the benefit of its provisions must prove that he belongs to such protected class. The onus was upon the claimant in this case to show that he purchased the carts in good faith, and without notice of the Eason judgment or fi. fa. against the lumber company. Did he successfully carry this burden? We think not. The proof was that he resided in Alabama; that his attorneys represented him in purchasing the property from the lumber

company; that he had them to examine the general execution docket of Early county; and that they (his attorneys) had no knowledge or notice of the judgment or fi. fa. until date of the levy. These facts were not inconsistent with bad faith and full notice on the part of the claimant himself. A principal may have notice when his agent has none. We have no difficulty in holding that the judgment of the court below, finding the property not subject, was erroneous.

2. There was no assignment of error upon the rendition of a final judgment in the superior court. If there had been such an exception, then, as no error of law which must have finally governed the case was complained of in the petition for certiorari, the ruling made in Holmes v. Pye (decided this term) 33 S. E. 816, and in cases there cited, would have been controlling. Judgment reversed. All the justices concurring.

1. It is the duty of a judge, when appropriate written requests to charge are duly presented, not merely to read the same to the jury, but to distinctly inform them that such requests are correct propositions of law to be considered along with the other instructions given in the case. When, however, in a particular instance, several requests were handed to the judge, and by him simply read to the jury, without expressly giving the same in charge, the omission to do this will not be held cause for a new trial, if it appears that all of the requests save one were, so far as legal and pertinent, covered by the general charge, and that, after reading that one, the judge used with reference thereto language plainly indicating his intention to give it in charge with a qualification which was itself proper.

2. Some of the instructions given in the present case concerning the annuity table and the method of using it were inaccurate; but when the amount of the verdict, viewed in the light of all the testimony, is considered, it is manifest that the error committed in this respect could not have resulted injuriously to the defendant, and therefore affords no ground for setting aside the verdict, which was well warranted by the evidence. Railway Co. v. Day, 17 S. E. 959, 91 Ga. 676, 680; Railroad Co. v. Bussey, 23 S. E. 207, 95 Ga. 585, 604; Boswell v. Barnhart, 23 S. E. 414, 96 Ga. 521; Railway Co. v. Owings, 25 S. E. 377, 97 Ga. 664, 669.

(108 Ga. 253)

CATHCART v. CINCINNATI, H. & D. RY. CO.

(Supreme Court of Georgia. July 22, 1899.) GARNISHMENT-SERVICE ON FOREIGN

CORPORATION-RETURN-AGENT
AS DEFENDANT.

1. Due and legal service of a summons of garnishment, purporting to have been made on September 23, 1895, upon a foreign corporation doing business in this state, was shown by the entry of a proper officer stating that the summons was served personally upon a designated person, and describing him as an agent of such corporation. It was not then essential that such entry should further state that the agent thus served was "in charge of the office or business" of the corporation.

2. Nor did the fact that the agent was himself the defendant in the judgment upon which the garnishment proceedings were sued out against his principal render the service invalid.

(Syllabus by the Court.)

Error from city court of Atlanta; H. M. Reid, Judge.

Action by F. B. Cathcart, executrix, against J. H. Rathburn. From a judgment in favor of the Cincinnati, Hamilton & Dayton Railway Company as garnishee, plaintiff brings error. Reversed.

T. C. Battle, M. A. Hall, and Jas. K. Hines, for plaintiff in error. Hugh M. Dorsey and Dorsey, Brewster & Howell, for defendant in

error.

LUMPKIN, P. J. A judgment was rendered by the city court of Atlanta in favor of Mrs. Cathcart, as executrix, against the Cin. cinnati, Hamilton & Dayton Railway Company, a foreign corporation, as garnishee. The garnishment suit was based upon a judgment against J. H. Rathburn, and the execution issued upon the judgment against the company as garnishee was levied upon its property. It filed an affidavit of illegality, alleging that it had never been served with any summons of garnishment, and had never, by any agent or attorney, waived service, or in any manner submitted itself to the jurisdiction of the court. On the trial of the illegality, the plaintiff tendered in evidence an entry purporting to show service of the summons of garnishment, in the following words: "Served the Cincinnati, Hamilton & Dayton Railway Company by serving J. H. Rathburn, general agent, personally, with summons of garnishment, at 9:30 a. m. This September 23rd, 1895. J. M. Payne, L. C." Counsel for the company objected to the introduction of this evidence upon two grounds: "First, that, the defendant being a nonresident, the return of the constable was insufficient, in that he did not show that J. H. Rathburn was in possession and control of the office of the defendant company at the time; second, that J. H. Rathburn, upon whom service was sought to be made to bind the Cincinnati, Hamilton & Dayton Railway Company, was also the defendant in the main suit, as above set out and admitted in evidence." To the rejection of this

evidence, and an order dismissing the levy, plaintiff excepted.

1. The first objection urged against the admissibility of the entry of service is predicated upon the contention that the same should have shown that Rathburn was the agent of the company in charge of its office or business in Fulton county, and in support of this contention counsel for the company relied on section 4710 of the Civil Code. This section is unquestionably broad enough in its terms to cover all corporations, foreign or domestic. It will be observed, however, that the entry of service with which we are now dealing was made September 23, 1895, which was prior to the passage of the act adopting the present Code. We must therefore look to the law governing the service of garnishments in force at the date last mentioned. The act of October 16, 1885 (Acts 1884-85, p. 99), is inapplicable to the present case because its provisions are expressly limited to corporations and mining or joint-stock companies “chartered by authority of this state." So the question is, what was the law as to the service of garnishments upon foreign corporations prior to the passage of that act? This question is answered by a decision of this court in Railroad Co. v. Tyson, 48 Ga. 351, holding that a garnishment could be lawfully served upon a foreign corporation by making personal service upon any agent of the company in this state. This decision has never been overruled, and is cited approvingly in Daniels v. Meinhard, 53 Ga. 359, 364, Railroad Co. v. Thornton, 60 Ga. 310, and Schmidlapp v. Insurance Co., 71 Ga. 249. These cases are all applicable to the question now under consideration, for it is to be noted, in this connection, that the affidavit of illegality interposed by the Cincinnati, Hamilton & Dayton Railway Company does not allege that it was not doing business in this state.

2. The other point made on the service as evidenced by the officer's return is that the same was unlawful, because Rathburn, the person served, was himself the defendant in the original judgment. In law this is a matter of no consequence. It was argued, however, that this point was well taken, for the reason that it would be to Rathburn's interest to conceal from his principal the fact that a garnishment had been served upon him as its agent, and thus, by allowing judgment against the company to be entered by default, to put upon it the burden of satisfying his indebtedness. There is no force in this position, for in no event could Rathburn, by pursuing such a course, relieve himself of that indebtedness. If the company paid off the judgment against him, he would then become liable to the company in the same amount, and be in no better situation than he was before. Again, we are inclined to believe that the agent of a railway company served as such with a summons of garnishment directed to the company would be diligent in informing his principal of the fact, in order that it might, if not really in

debted to him, make the proper answer, and be discharged. Good faith in this respect would naturally be expected of the agent, and, moreover, it is far from likely that the corporation would retain in its service an employé who was remiss in his duty in a matter of this kind. So there is no good reason for supposing that such an agent as Rathburn would, merely because of his being the plaintiff's debtor, fail to inform his principal, the railway company, of the service upon him of the summons of garnishment. Judgment reversed. All the justices concurring.

(108 Ga. 794)

BOYNTON v. PELHAM. (Supreme Court of Georgia. July 22, 1899.) EXEMPTIONS-WAGES OF RAILROAD CLERK"LABORER."

The question at issue being whether or not the wages of a clerk employed in a railway company's office were subject to garnishment, and he being, under the evidence, an employé whose services under his contract consisted "mainly of work requiring mental skill or business capacity, and involving the exercise of his intellectual faculties, rather than work the doing of which properly would depend upon a mere physical power to perform ordinary manual labor," he should not, under the rule laid down in Oliver v. Hardware Co., 25 S. E. 403, 98 Ga. 249, and followed in McPherson v. Stroup, 28 S. E. 157, 100 Ga. 228, have been classified as a "laborer." Accordingly, the jury in the magistrate's court correctly found that his wages were subject to the garnishment, and the superior court erred in sustaining the certiorari, and setting their verdict aside.

(Syllabus by the Court.)

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Action by M. H. Boynton against Peter Pelham, Jr. From a judgment in favor of defendant, plaintiff brings error. Reversed.

J. A. Clarke, for plaintiff in error. Eugene Dodd and Arthur Heyman, for defendant in

error.

PER CURIAM. Judgment reversed. FISH, J., disqualified.

(108 Ga. 231)

SMITH v. USHER. (Supreme Court of Georgia. July 21, 1899.) WILLS-LIFE ESTATE-CROSS REMAINDERS.

Where a testator in his will devised certain land to his two daughters for their natural lives, and after their death to their lawful children, forever, if they shall have any, and further provided that, if both of said daughters die childless, then the land shall go to the testator's grandson, his heirs and assigns, forever, held: (1) That the daughters take as tenants in common for life, with cross remainders for life necessarily implied between them. (2) Upon the death of one of the daughters without issue, all the land goes to the surviving daughter for life, with remainder in fee to her children. (3) If both daughters die without issue, the grandson takes the land, but until that event takes no part of it.

(Syllabus by the Court.)

Error from superior court, Burke county; E. H. Callaway, Judge.

Action by Sarah A. Smith against Savannah Usher. Judgment was entered on defendant's demurrer to the petition, and plaintiff brings error. Affirmed.

Seaborn Jones and J. R. Lamar, for plaintiff in error. Phil. P. Johnston, for defendant in error.

SIMMONS, C. J. Sarah A. Smith, as widow and sole heir at law of Michael H. Smith, brought suit against Savannah Usher for a one-half undivided interest in a certain tract of land, claiming it under an item in the will of Michael Mixon, deceased, which was set out in her petition as follows: "I give and devise my Mixon place to my two daughters, Savannah and Amelia, to be used and enjoyed by them during their natural lives, subject to their own control, and to be managed by them as femes sole; and should my said daughters, Savannah and Amelia, have lawful children, then at their decease I give and devise said plantation to said heirs, forever. But should both of said daughters die childless, I give and devise said Mixon place to my grandson, Michael Smith, to his heirs and assigns, forever." The petition alleged that the daughter referred to as Amelia had died, leaving no child or children, and that the daughter referred to as Savannah, the defendant in the suit, had married Usher, and was living upon the property, and refused to recognize petitioner's rights to an interest therein. There was also in the petition an allegation that by the item of the will above set out the testator "intended that, in the event of the death of one of said daughters without issue, or leaving no child, an undivided half interest in said property should go to and vest in said Michael H. Smith; and said testator, at the time of the execution of said will, so stated, and repeatedly afterwards said that such was his understanding and construction and intention." The defendant demurred to the petition on several grounds, among them that it set out no cause of action; that it showed that the plaintiff had no "present interest" in the land; that it sought by extraneous testimony to show an interest other than that given by the will; that it showed that under the will the defendant had a life estate in all the land, and that no remainder-man had any present interest until the termination of the life estate. The judge sustained the demurrer, and the plaintiff excepted.

We will notice first the contention of the plaintiff in error that the demurrer admits the averments in the petition "that the testator by this language understood and intended that his grandson should take all of the property if both daughters died childless, and one-half of it if either of them died childless." By demurrer are admitted such facts only as are issuable and well pleaded, and the demurrer

in the present case does not admit the intention of the testator to have been such as is averred in the petition, for the reason that the petition shows that these averments are partly conclusions of law and partly facts, which would not be competent to add to or change the will under which both parties claim. The plaintiff claims as heir of her husband, whose interest the will expressly restricts to the case where both of the daughters die childless, and the petition seeks to show a different intention on the part of the testator, by proof of his sayings and statements. If the grandson was to take any interest in the event of the death of one of the daughters without children, his interest should be made to appear, expressly or by implication, from the language used in the will; for the latter cannot be changed or reformed by adding to its provisions any sayings or statements of the testator not embodied in the will. We think, therefore, that the demurrer does not admit the truth of the plaintiff's averments as to the intention of the testator, in so far as those averments appear to have been dependent upon, additions to, or a reformation of the will, by means of extraneous parol evidence. Wills must be in writing, and executed according to prescribed formalities, and a failure to dispose of property cannot be supplied by showing sayings and statements of the testator that he desired or intended to dispose of it in a certain way, or that he understood that the will disposed of it in a way different from that expressed in the will. Willis v. Jenkins, 30 Ga. 167; Armistead v. Armistead, 32 Ga. 597; Phillips v. Crews, 65 Ga. 274; West v. Randle, 79 Ga. 28, 3 S. E. 454; Erwin v. Smith, 95 Ga. 699, 22 S. E. 712.

We will now proceed to a consideration of the item of the will under which plaintiff claims. The testator clearly expressed his intention that, in the event both daughters had lawful children, such children should take, and also his intention that, in the event both daughters died childless, the estate should go to the grandson named; but the will failed to provide for one contingency, viz. where one daughter died childless and the other had children. The grandson cannot take under any express provision of the will until both daughters die childless, for his interest is so expressly restricted in the will. The testator, therefore, made no express disposition of the land in the event one daughter died childless and the other had children, and this is the condition that has now arisen. To prevent a partial intestacy and a lapse in the limitations of the estate, and to give effect to the manifest intention of the testator, the law will in such a case raise by implication cross remainders between the two daughters and their issue; for, while in a deed cross remainders are created only by express words, it has long been settled that they may in a will be raised by implication. We think, therefore, that the effect of the item of the

will under discussion was a devise to the two daughters for life, with remainder to their lawful children if both have such children, with remainder to plaintiff's husband in the event both the daughters die childless, and with implied cross remainders between the two daughters and their children in the event that one of the daughters has lawful children while the other dies childless. "Where a devise is of black acre to A., and of white acre to B. in tall, and, if they both die without issue, then to C. in fee, here A. and B. have cross remainders by implication, and, on the failure of either's issue, the other or his issue shall take the whole, and C.'s remainder over shall be postponed till the issue of both shall fail." 2 Bl. Comm. *p. 381. In the case of Doe v. Webb, as stated in the opinion by Lord Mansfield, the testatrix gave her interest in certain lands "to her three daughters, and the heirs of their bodies, as tenants in common, and not as joint tenants; and, in default of such issue (not meaning thereby her daughters, for to them she gave estates respectively, but the heirs of their bodies) she [gave] the same to her own right heirs." The court held that none of the property went to the heir at law unless the issue of all the daughters should fail, when he took the whole, and that it was a case in which cross remainders were to be implied. 1 Taunt. 238. Where the testator devises certain lands "unto my two daughters, Elizabeth and Anne Meynel, and their heirs, equally to be divided betwixt them, and, in case they happen to die without issue, then I give and devise all the said lands to my nephew, Francis Meynel, the heirs male of his body," 46 cis takes nothing upon the death of Anne, but her part remains to her sister by way of a cross remainder." Holmes v. Meynel, T. Raym. *452. "Devise by testator

and to Fran

to his two daughters A. and B., to them, their heirs and assigns, but, in case they should die without issue, that the same should go to, and vest in, their two sisters, C. and D., held, • that the estate

to C. and D. was a vested remainder, to take effect upon the death of both A. and C. without issue; that cross remainders in tail were to be implied between A. and B." Lil. libridge v. Adie, 1 Mason, 223, Fed. Cas. No. 8,350. See, also, Taaffe v. Commee, 10 H. L. Cas. *64; Pierce v. Hakes, 23 Pa. St. 231; Allen v. Trustees, 102 Mass. 262; Atherton v. Pye, 4 Term R. 710; Dow v. Doyle, 103 Mass. 489; Mackell v. Winter, 3 Ves. 536; note to Green v. Stephens, 12 Ves. 418; 29 Am. & Eng. Enc. Law, p. 394 et seq.; 2 Jarm. Wills, *1339 et seq.

As is shown by the case of Fenby v. Johnson, 21 Md. 106, and the authorities there cited, there is a distinction "between devises in tail and in fee, as affecting the doctrine of cross remainders by implication." Where the devisees held the land as tenants in common