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opinion, he had in the absence of such a motion, no authority to certify the bill of exceptions, this court, without inquiring into the merits of the questions presented by the bill of exceptions, will, by mandamus absolute, command the judge to certify the same. The decisions of this court in Pitts v. Hall, 60 Ga. 389, and Dotterer v. Harden, 13 S. E. 971, 88 Ga. 145, in so far as they hold to the contrary, are, upon a review thereof, overruled.

(Syllabus by the Court.)

Applications for mandamus by Will Taylor and Fred Perry against Seaborn Reese, judge. Writs granted.

Horace M. Holden and Alex. W. Stephens, for movants.

LUMPKIN, P. J. Upon an indictment charging Will Taylor and Fred Perry with the murder of Jep Dennard, they were jointly tried and convicted. Without moving for a new trial, each by his counsel sued out a separate bill of exceptions, alleging, among other things, that the judge erred in refusing to give in charge to the jury certain written requests, the object of which was to have the jury instructed upon the law of voluntary and involuntary manslaughter. Each of these bills of exceptions set forth a statement of the evidence introduced at the trial, recited that the judge ruled that it was not proper to charge the jury as requested, and complained that the verdict of guilty was necessarily controlled by this ruling. Each bill of exceptions also alleged that the judge failed entirely to charge concerning the lower grades of homicide. Perry's bill of exceptions contained one assignment of error which was not in that of Taylor, but it is not now essential to state or discuss the same. The judge declined to certify either of the bills of exceptions, basing his refusal upon the ground that, in the absence of a motion for a new trial, he had no authority so to do.

Thereupon each of the accused sued out an application for mandamus, to compel the judge to certify his bill of exceptions.

We have reached the conclusion that it was the duty of the judge to certify these bills of exceptions, notwithstanding there was in neither case a motion for a new trial. The requests to charge were manifestly predicated upon the theory that, under the evidence and the statements made by the accused at the trial, the law of both grades of manslaughter was involved. An examination of these bills of exceptions makes it perfectly clear that in suing them out the accused were seeking to avail themselves of the provisions of the Act of December 20, 1898, "to dispense with a motion for new trial and filing brief of the evidence, and to authorize a direct bill of exceptions, in certain cases," which declares: "That from and after the passage of this act, in any case now or hereafter brought where the judgment, decree or verdict has necessarily been controlled by one or more rulings, orders, decisions or charges of the court, and the los

ing party desires to except to such judgment, decree or verdict, and to assign error on the ruling, order, decision or charge of the court, it shall not be necessary to make a motion for a new trial, nor file a brief of the evidence, but the party complaining shall be permitted to present a bill of exceptions containing only so much of the evidence or statement of facts as may be necessary to enable the supreme court to clearly understand the ruling, order, decision or charge complained of." Acts 1898, p. 92. This act renders unnecessary the filing of a motion for a new trial when the case depends upon a controlling question of law, and the complaint is that the trial judge committed a vital error with respect to the same. The losing party in any case might very properly concede that, under the evidence and a given charge, the verdict against him, assuming the charge to be correct, was demanded; yet, at the same time, he might with abundant reason insist that, because of error in the charge, the jury were constrained to find as they did. The correction by this court of such an error results in a new trial. The act of 1898 simply gives in explicit terms a right of which parties litigant frequently availed themselves before its passage. See, in this connection, Roberts v. Neal, 62 Ga. 163; Trippe v. Wynne, 76 Ga. 200; Massengill v. Bank, Id. 341, 347; Haskins v. Throne, 101 Ga. 126, 28 S. E. 611. We do not, of course, wish to be understood as saying that a party can except to or complain of a verdict as being contrary to evidence without first moving for a new trial. Jones v. Pitts, 98 Ga. 521, 25 S. E. 573; Holsey v. Porter (Ga.) 31 S. E. 784.

There is enough in each of the bills of exceptions tendered to the judge to enable this court to clearly understand and pass upon the rulings complained of; and if the positions taken by counsel for the accused are well founded, it was the right of the accused to have the jury determine the question whether or not they were guilty of a lower grade of homicide than murder. If the judge committed the errors alleged, they were deprived of this substantial right, and the verdicts actually rendered were necessarily so far controlled by the judge's action as to necessitate a new trial.

We do not, however, feel called upon, in dealing with these applications for mandamus, to pass upon the merits of the questions presented by the bills of exceptions. It is true that in the case of Pitts v. Hall, 60 Ga. 389, this court held that a "trial judge should not be by mandamus compelled to sign a bill of exceptions which was without merit." And to the same effect see Dotterer v. Harden, 88 Ga. 145, 13 S. E. 971, in which it was held that: "The supreme court will not grant a mandamus nisi, to the end that a bill of exceptions may be signed and certi fied, where it affirmatively appears on the face of the application that the decision com

plained of and sought to be excepted to was correct, inasmuch as in such case the mandamus would be of no practical benefit to the applicant." Following these rulings would require in every case like the present ones an examination by this court into the merits of the questions presented by the bill of exceptions tendered, and an ex parte decision thereon of the main case. The ruling in the case last cited was based mainly on that in 60 Ga., the correctness of which was conceded, and therefore not brought under review. So far as relates to the question with which we are now dealing, neither of those decisions can, in our opinion, be regarded as sound. We have accordingly permitted counsel to review the same, and, to the extent indicated in the second headnote, they are overruled. The law makes it the imperative duty of a judge, whenever a true bill of exceptions is tendered to him, to certify it. Upon his refusal to sign and certify a bill of exceptions, it is the right of the party tendering the same to apply to this court for a mandamus nisi, calling upon the judge to state the reasons for his failure or refusal to certify. It then becomes the duty of this court to consider and determine the validity of these reasons, and, if they be insufficient, the law explicitly declares that this court "shall issue a mandamus absolute commanding the judge to sign and certify the bill of exceptions." See Civ. Code, § 5546. We have already shown that the reason given by Judge Reese for declining to certify the present bills of exceptions was insufficient. He could not, with propriety, have assigned as a reason for declining to certify that the bills of exceptions did not, in his opinion, show the commission of any error. If this were allowable, every judge could pursue a like course with reference to any bill of exceptions tendered to him, and the inevitable results of a practice of this kind would obviously be such as the law never contemplated. In point of fact, as has been seen, Judge Reese did not, in his answer to the mandamus nisi, allege such a reason for not certifying, and we are fully satisfied that no argument based upon the proposition that the rulings excepted to were correct should have any weight in determining whether or not the writs of mandamus should be made absolute. Conceding that it may finally be held that the rulings complained of were free from error, it is still the right of the applicants to have their cases brought to, heard in, and determined by this court in the regular and lawful way. It therefore becomes our duty to order in each case a writ of mandamus absolute. In view of what has just been said, we could not do so if the prior decisions of this court cited above were adhered to, without first inquiring into the merits of the questions presented by these bills of exceptions, and reaching a conclusion that reversible error had been committed. In other words,

we would have to decide the cases against the state without hearing from her counsel, and then, merely as matter of form, reverse the judgments when the cases subsequently reached here upon certified bills of exceptions. Such a practice would not only be anomalous, but, as a result thereof, it would frequently happen that cases of the utmost importance would, for all practical purposes, be finally determined before they reached this court in the manner prescribed by law, and that, too, without even notice to parties vitally interested. Mandamus absolute ordered in each case. All the justices concurring.

(108 Ga. 402)

CUMMINGS et al. v. HOLLIS et al. (Supreme Court of Georgia. July 25, 1899.) CORPORATIONS-RIGHTS OF MEMBERS-CONTROL OF ASSETS.

1. When persons claiming to be members of an incorporated military company which has no capital stock, but has acquired property by donation, file an equitable petition, seeking to obtain control and management of the affairs of the company so incorporated, and allege that the company was, for noncompliance with law, disbanded by an order passed by the governor of the state pursuant to a statute, and that the members of the company, including the plaintiffs, acquiesced in such order, and ceased to exercise military functions, held, that the case so made does not entitle petitioners to the relief sought, and the petition was properly dismissed on demurrer.

2. There was no error in rejecting an amendment to the petition which more plainly made apparent the fact that the members of the company had ceased to perform the public duties imposed by the act which created it.

(Syllabus by the Court.)

Error from superior court, Fulton county; John L. Tye, Judge pro hac.

Suit by W. B. Cummings and others against J. B. Hollis and others. Judgment for defendants. Plaintiffs bring error. firmed.

Af

Anderson, Felder & Davis, for plaintiffs in error. King & Anderson and Arnold & Arnold, for defendants in error.

LITTLE, J. W. B. Cummings and a number of others exhibited a petition in the superior court of Fulton county, making substantially the following case: On December 14, 1859, the Gate City Guard of Atlanta was incorporated by an act of the legislature as a volunteer infantry corps. The charter was accepted, and the company organized thereunder performed the duties named in the charter. As an organization, it entered into the service of the Confederate States, and served during the war between the states. After the termination of that war, the existence of the company was suspended until 1876, when it was reorganized, and continued as a military company under the charter until 1890. That between the years 1879 and 1890, by public subscription, fairs, etc., the company realized a large sum of money for

the purpose of providing a home for its members and the continued exercise of its charter privileges, and such money was invested in the purchase of a site in the city of Atlanta for an armory and building thereon, the management of which was put in a board of trustees, chartered by the superior court of Fulton county. In 1890, the legislature having passed an act requiring the enlistment of all military companies, certain members of the company did enlist in the service of the state for a period of one year, but such enlistment and extra service proving onerous to those who had enlisted, they declined to re-enlist, but continued their charter organization. The term of the enlistment of the members expired in March, 1893, and none of the members of the company re-enlisted; not caring to assume the additional duties and services not required by their charter. In 1893 the governor, on account of the failure of the company to reenlist, passed an executive order, declaring the company disbanded, but nevertheless it kept up its corporate organization as before, although it ceased to act in a military capacity. The arms which it had were returned to the state, and until 1895 the company did not drill or parade with arms. In 1895 the board of trustees purchased arms and equipments at considerable expense, the membership was largely increased, the organization was divided into the Old Guard and the active company, the Old Guard being exempt from certain duties to which the active company was subject. In 1895 it was questioned whether the company had the right to drill or parade with arms. It contended it had by virtue of its charter, and that the right could not be taken away from it either by the legislature or by the governor. The question was submitted to the governor, who decided that no members of the Gate City Guard could lawfully associate themselves together as a military company or organization, or drill or parade with arms, by virtue of their charter, but that any persons desiring to act as a military company must enlist and form a company under the general military laws of the state. After this decision, some of the younger members of the company decided to form a military company under the general law of the state, which they did, and enlisted in the state service, and after their enlistment they claimed that by virtue of their organization they had the exclusive right to certain of the charter privileges of the Gate City Guard. In this way they began to create dissensions in the company, and attempted to pass by-laws to curtail the rights of the old members, and to vest the management of the property and control of the affairs of the corporation in the hands of the younger company; and at a meeting of the company held in 1897 they procured a majority of the military company to be present, and in that manner procured the control of the meeting over the protest

of those members of the Old Guard who were present. These younger members elected a board of trustees, who now claim to be the legal board, and to have possession and control of the properties. They passed bylaws for the purpose of depriving petitioners of their right to vote in corporate meetings. Petitioners allege that the property owned by the corporation is real estate of the value of $50,000, and personal property of the value of $6,000, subject to two mortgages, one for $11,500 and the second for $4,000; that the income is not sufficient to pay current expenses and maintain the property; that tax executions have been allowed to go unpaid. The company owes additional debts. It is alleged that the object of the conspirators is to divert the use and enjoy. ment of the corporate property from the proper beneficiaries to the exclusive control and management of a small military company formed under the general state law, who also claim to be the proper beneficiaries of the trust estate. Petitioners claim that the real beneficiaries are the corporate members of the company chartered as the Gate City Guard in 1859, and that the members of the military company, as such, have no rights whatever in the property. They allege that the present illegal board of trustees contemplate increasing the debt of the corporation by purchasing additional uniforms. It is further alleged that the minority deny the right of petitioners to participate in the management of the property, and have undertaken to disfranchise petitioners by making them honorary members. Petitioners pray for the appointment of a receiver to take possession of the realty and personalty of the Gate City Guard; that the present board of trustees be enjoined from interfering with, incumbering, or transferring the property of the corporation, and from going upon the premises, from denying the petitioners the right of the management of the corporation, to vote in its meetings, and otherwise continue their membership; that the defendants be enjoined from introducing new members into the corporation, and for an accounting on the part of the board of trustees for all moneys received by them belonging to the corporation. The petition was demurred to on several grounds, and at the hearing, which came on before John L. Tye, Esq., judge pro hac vice, the petitioners tendered in writing an amendment, making other allegations, and praying that the property be sold, and the proceeds, after paying the incumbrances, be divided among the parties entitled thereto. This amendment, having been objected to, was refused, and to this ruling and judgment the plaintiff in error excepted. The court sustained the demurrer and dismissed the petition. To this judgment the plaintiffs in error also excepted.

We find it necessary to pass upon but one ground of the demurrer, and that is whether the petition contains any ground for relief.

An examination of the act of 1859 shows that certain persons and their associates were incorporated as a volunteer infantry corps of the city of Atlanta, under the name of the Gate City Guard, with power to sue and be sued, have a common seal, hold such property, real and personal, whether obtained by gift or purchase, as may be deemed necessary or convenient for the purposes of the corps, and to make by-laws for their own government. It was also provided that the number of men composing said corps shall never exceed the number of 80 privates, exclusive of the officers, and that all persons who were then enrolled or might thereafter enroll themselves as members of the corps, provided the number did not exceed 80, should be declared exempt from jury, patrol, and militia duty: provided that the corps should at no time drill and parade a less number of times yearly than was required by the militia laws of this state. It also provides for a president and secretary, and that the commanding officer of the corps should be president. It appears from this act that the corporation had no capital stock, nor was there any subscription to be made by any of its members; that the property which it was authorized to acquire by donation or purchase was only such as was useful for the purposes of the corporation; that these purposes were to be performed for and in the interest of the public. The corporation thus created was not for the profit or gain of its members, who received from the state compensation for the performance of the public duties required, by exemption from the performance of certain other public duties then required from citizens generally,-that is, exemption from jury, patrol, and militia duty. Exemption from the latter duty must not be confounded with exemption from military duty. The corps was chartered in furtherance of the object of making trained soldiers from the body of the people. At the time this military company was created, militia duty was required from every able-bodied male person in this state between certain ages, from which there were few exemptions. The male inhabitants of each militia district in the several counties of this state not exempt by law constituted a company. These companies were organized into regiments, brigades, and divisions; the governor being the commander in chief of the whole. By statute the militia were required to drill and parade at certain intervals, and the exemption in the charter of the Gate City Guard referred to this kind of duty, that is, militia duty. The corps, however, was organized and incorporated for military duty, and for nothing else, and when it ceased to perform military duty under the laws of this state, the purposes of its incorporation were at an end, and its charter was subject to forfeiture for nonuser, under the general law providing for forfeiture of charters. Civ. Code, § 1883.

of the corporation placed in the hands of a receiver, until the court should hear and determine to whom the possession of the property belonged, and by the offered amendment they prayed to have the property sold, and the proceeds divided pro rata among the parties entitled thereto, as set out in the petition. There are two reasons why none of the prayers of the petitioners could have been granted. The first is that the petition shows on its face that the persons seking relief are not members of the Gate City Guard, and are not entitled to any of the rights or privileges conferred by the original charter. The only design in the creation of this corporate body was that its members, as a volunteer military organization, should become a part and parcel of the military forces of the state of Georgia, and the charter conferred upon the members no rights unless such military organization was kept up and maintained. The petition shows on its face that several years ago the company, finding military duty onerous, declined to enlist in the military forces of the state, which the law required, and were disbanded as a military organization by the commander in chief, and not allowed to drill and parade as a military organization. Having been incorporated only to perform duties which they allege became so onerous that they abandoned them, it seems to follow, as a matter of law, that the body ceased to exist as a corporation by practically surrendering its franchise. Certainly, if the members failed to perform military duty, they could do nothing. So that, under the allegations made, the petitioners show that they have no right, as members of the Gate City Guard, to any of the powers, privileges, or exemptions conferred upon the members of that corps under the act of incorporation. It is not a matter of concern whether the act incorporating the Gate City Guard constituted that organization either a public or a private corporation, nor is it necessary now for us to decide whether the organization still exists as a legal corporate body, nor whether, as a corporation, in consequence of the nonuser of the franchises for a period of years, coupled with the fact that under the laws of this state it was disbanded by the governor, it has incurred a forfeiture of the original charter rights and privileges. The only question involved by the demurrer is as to the right of the petitioners to control the property alleged to be owned by the corporation, and, if it be found that the petitioners have no right to the control of such property, nor any interest in it, then the ultimate disposition of such property does not concern either this court or the petitioners. The company was organized for a purely public purpose,-that of performing military duty for the state. The powers conferred were only such as were necessary for a military organization. The

The petitioners seek to have the property corporation had no capital stock, no shares

33 S.E.-58%2

of stock of any character; no subscription was required of its members. The only property which it was authorized under the law to hold was such as was deemed necessary or convenient for the purposes of said corps, whether obtained by gift or purchase. Concerning the rights of the members of such a corporation, this court, in the case of Mason v. Fire Co., 70 Ga. 604, ruled that the representatives of a deceased member had no right to participate in a fund arising from the sale of the property of the company either during the existence of the corporation or after it had been dissolved. The ruling made in that case was based on the reasons that members in such a corporation held no stock; that they were members while they lived and belonged to the organization; that while a member of it was in life, he had nothing which he could sell or assign; that it was not a trading, commercial, or ordinary business corporation, or anything like it; that its property was acquired, not by subscription paid in by its members, who thereby became entitled to certificates of stock, but by donations made by public-spirited and patriotic citizens, and whether such contributions came from fairs, concerts, or otherwise, still they were donations for a great public object; that membership in such a corporation was not obtained as the result of contract, nor held by virtue of any vested right springing from a contract, but was only obtained by the will of those composing the company, who acted under charter from the legislature of the state. These reasons apply in full force to the organization of the Gate City Guard, as set out in the petition, and because of them it must be held that, even if petitioners are members of the Gate City Guard, they can have no such interest in the property belonging to that organization as entitles them either to control it, or to have it sold and the proceeds divided. On the dissolution of a corporation of this character, its assets are appropriated in other ways than by a division among its members. Hence, there was no error in overruling the amendment offered to the original petition, nor in sustaining the demurrer to the petition because it contained no ground for legal or equitable relief. Judgment affirmed. All the justices concurring.

(46 W. Va. 669)

ENGEMAN v. TAYLOR et al. (Supreme Court of Appeals of West Virginia. Sept. 9, 1899.)

RESCISSION OF CONTRACT-FRAUDULENT

REPRESENTATIONS.

1. A contract may be rescinded for fraudulent misrepresentations, though the means of obtaining information were fully open to the party deceived, when from the circumstances he was induced to rely upon the other party's representations.

2. Any contract, the making of which is induced by fraud of either party practiced upon

the other at the time the contract is made, or while negotiations in regard to it are being carried on, is voidable, and may be rescinded at the election of the party defrauded.

3. False representations or fraudulent concealment in respect to the subject-matter of the contract will entitle the injured party to rescission of the contract.

4. The court will not inquire into the extent of the prejudice. It is sufficient if the party misled has been slightly prejudiced, if the amount is at all appreciable.

(Syllabus by the Court.)

Appeal from circuit court, Grant county; R. W. Dailey, Jr., Judge.

Bill by William A. Engeman against James S. Taylor and John E. Taylor. Decree for defendants, and plaintiff appeals. Reversed.

Flick, Westenhaver & Baker, Benj. Dailey, and H. B. Gilkerson, for appellant. F. M. Reynolds, L. J. Forman, and J. N. McMullan, for appellees.

MCWHORTER, J. On the 26th day of November, 1890, W. A. Engeman, of Brooklyn, N. Y., and John E. Taylor and James S. Taylor, of Hampshire county, W. Va., entered into a written agreement of that date forming a partnership to continue for the period of 10 years from the date of agreement, for the purpose of erecting and building a tannery near the town of Petersburg, in Grant county, and for the purpose of carrying on and operating said tannery, and buying bark lands and bark rights; the capital stock to be $60,000; said Engeman to contribute onehalf, and each of the Taylors one-fourth, of said capital; said capital stock to be increased from time to time as the parties might agree upon, the interests to be held by them, respectively, in the proportion stated. There was to be a settlement of the affairs of the co-partnership on the 1st day of July, 1891, and on the 1st day of January and 1st day of July in each year thereafter, at which said settlements the profits of said copartnership, if any, should be ascertained. It was agreed that nothing whatever should be drawn out of the business of said concern by any of the co-partners until the settlement of July 1, 1892, at which time the profits should be ascertained and divided in the proportion in which they held their stock, and the co-partners should then determine whether such profits should be paid to them in the proper proportions, or whether they should be invested in the business, and that at each subsequent settlement the profits should be ascertained and paid to the parties, or invested in the business of the copartnership, as they might agree; that said Engeman and J. S. Taylor should not be required to devote their time and attention to the management of the tannery; that John E. Taylor should be superintendent and manager, and should receive for his services as such $1,000 per year, to be paid by said copartnership, in consideration whereof he was to devote all his time and attention to the

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